Privacy rights apply to travellers’ luggage, court says

Oct 20, 2017 By Melody Izadi
You may assume that your privacy rights are moot once you enter an airport, and especially so after you watch your luggage drift further and further away from you on a conveyer belt. Yet interestingly, in R. v. Neyazi 2014 ONSC 6838, Ontario’s Superior Court has confirmed that we do in fact have privacy interests in our luggage when we enter an airport — substantial ones.

Mohammad Hasib Neyazi was charged with possession for the purpose of trafficking after 4,504 oxycodone tablets were found in his checked luggage before he boarded a domestic Porter Airlines flight from Ottawa to Thunder Bay. The tablets were discovered after Neyazi’s bag was physically searched by officers. Neyazi brought an application alleging violations of his 7, 8, 10(b) and 15 rights under the Canadian Charter of Rights and Freedoms. The court agreed that his rights had been violated and excluded the evidence of the tablets.

Upon arriving at the airport, Neyazi was originally flagged by a Porter Airlines ticket agent who sold Neyazi a one-way ticket at the ticket counter. She thought Neyazi was “unusual” so she contacted the Canadian Air Transport Security Authority (CATSA) alleging that Neyazi could be a potential security threat. At trial, the ticket agent denied that Neyazi’s Middle Eastern heritage was a factor in her assessments. Rather, she cited that her reasons for considering Neyazi a security threat were the following: he appeared nervous by looking behind him and over his shoulder, he purchased a one-way ticket an hour prior to departure, and that he was a young male.

Neyazi’s luggage was then turned over to CATSA agents, who asked the screening officers to check his luggage for bombs or explosive material. As such, his luggage was then subject to four separate security screenings: an initial X-ray scan, an explosive trace detection swab and a CT-80 ion X-ray scan. An airport canine officer also examined the bag, and the bag did not raise any concerns after being subject to a sniff test. Despite the negative results of these tests, both police officers and CATSA agents decided that Neyazi’s luggage must be subject to a physical search.

Accordingly, the court found that without Neyazi’s consent, the physical search of his bag by both police and CATSA agents were warrantless and unlawful. The Crown was not able to provide the court with any authority or legislation that purports that the CATSA agents were able to search his bag physically absent his consent. With regards to the police powers to search Neyazi’s luggage, the court found that the search was not lawfully incidental to Neyazi’s detention since the officers lacked any subject belief that Neyazi was connected to any criminal activity, or that he was a threat to public safety.

The court held that it cannot be the case that all individuals travelling through an airport “forfeit all privacy interests in their luggage,” and that “when checking in luggage for a domestic flight, a passenger does not expect a bag to be physically searched by police.” In addition, the court found that during his detention and prior to his arrest Neyazi was questioned by authorities but was not told he had the right to speak to a lawyer, which violated his 10(b) rights.

The court also found that the search of his luggage was directly linked to and motivated by racial profiling, which violated ss. 7 and 15 of the Charter. It’s clear to most that the catalyst for the numerous searches and violations endured by Neyazi was in fact justified by airport staff because of Neyazi’s physical appearance: a young, Middle Eastern male. This was evident after all involved parties testified about what information they relied upon to authorize searches of his luggage.

Thankfully, the court was careful to caution that we must strike a lawful balance between policing terrorism and general crime. The court specifically addressed this by noting the ruling from R. v. Chehil 2011 NSCA 82, which states: “heightened efforts to combat the former cannot be used to circumvent protections guaranteed with the latter.”

This judgment is especially important because in such a pronounced anti-Muslim (read: terrorist) state of social consciousness, it’s easy to justify unlawful invasions of privacy in the name of combatting evil for the greater good. R. v. Neyazi provides the much-needed reminder, especially for those who participate in our justice system, that privacy interests and the right to be free from an unlawful search are not rights that will ever be found in a constitutional discount bin — no matter what you look like.