HART vs. FULLER APPLIED TO “SNIFFER” DOGS IN CANADA


Fuller argues that law and morals are intertwined in the sense that law cannot negate the common moral belief of the society it is created by.  This is turn means that for a law to be law it may never go against the moral foundations of natural law.

Hart on the other hand sees moral as unrelated to a law’s formation.  He views that though morality should be considered it is not necessary for law to be law.  Hart argues that law is void of moral action; law is simply a command by sovereign that if disobeyed, results in punishment.  Though this distinction is made, Hart still makes the allowance that law should be moral but that just because a law is immoral does not negate the fact that it is still law.

To relate this debate to something that is more current than the Nazi-Germany argument that these two have argued extremely well, a recent appeal dismissal in the Supreme Court of Canada surrounding the use of drug “sniffer” dogs by police in public places has caught my attention(CBC, Random use of Police Sniffer Dogs Breaches Charter, 2013).  Civil liberties groups hold more of an appeal to Fuller’s arguments here where to be searched in public by a police “sniffer” dog is deemed to violate section 8 of the Charter of Rights and Freedoms which states “everyone has the right to be secure against unreasonable search or seizure” (Canadian Charter of Rights and Freedoms).  The idea to these groups that people may be stopped in public parks, bus terminals, high schools, and other areas to be subject to search at random is completely against their view of the meaning of section 8.  If these searches were truly conducted at random, I would agree with this argument.  However, the justification for these supposed “random” searches that these group claim, is actually based upon the “reasonable suspicion” standard that police use regularly in all interactions with the public.  In fact, we as civilians often employ this tactic ourselves.

“Reasonable suspicion” is a term that means an “officer has sufficient knowledge to believe that criminal activity is at hand” (Farlex Inc., The Legal Dictionary, 2013).  This small stipulation, once proven in any search or seizure by police negates any claim to section 8 of the Charter being infringed upon by police.   Another important note to make in this case is that the term “police officer” does not only constitute the human officer, this term also encompasses the dog to some degree.  However, you must also realize that in the subject of search, the police dog is not just an “officer” either; the dog is also considered an investigative tool available to the officer partaking in an interaction with a suspect.  Two cases were up for appeal citing the infringement on Section 8 of the Charter, both cases on Friday September 27, 2013 had their appeals dismissed as the judge cited “reasonable suspicion” prior to the use of the “sniffer” dog being deployed to search.

Fuller would argue that by stopping someone in a bus terminal, as officers did in R. vs. Kang-Brown (http://scc.lexum.org/decisia-scc-csc/scc-csc/scc-csc/en/item/4627/index.do), that section 8 of the Charter was violated.  This is an argument based on the moral principle of rights of the individual’s freedom and privacy are being shoved aside by authorities under the guise of lawful activity by the authority figure.  Hart on the other hand would assess the facts surrounding the stop to determine validity of the search.  The facts for this case to be considered in determining lawfulness would be: the officers were attending the bus station as part of a “special operation designed to detect drug couriers at bus stations” (R. vs. Kang-Brown), accused focused on officer for longer period than customary, accused walked into lobby and looked back at the officer, officer approached accused and asked if accused was carry narcotics, accused declines, officer asks to see accused’s bag, accused complies by opening the bag but then pulls the bag away when the officer moves to touch the bag to complete the search.  These facts illicit reasonable suspicion of criminal activity taking place because the accused’s behaviors are not consistent with those of an innocent party which results in the “sniffer” dog being called over to conduct a search of the accused.  The right to privacy would be argued by Fuller as the accused’s bag was personal property and sealed however, with the elements of a public space, public bus terminal, and the accused opening the bag himself, this right to privacy of the bag is significantly diminished and exposed.  The privacy of the accused is not more important in this instance that the safety and the right to safety of the public in the public area he is passing through.

The morality behind the public search of property and persons may embark into a feeling of “Big Brother” among some members of public but the question becomes more about who is feeling this pressure.  Is it the public who abide by the laws and do not partake in illegal narcotics?  Or is it the public who uses public spaces to conduct illegal narcotic transactions and movement of narcotic products?  Hart would argue that even if it is later determined that “sniffer” dogs performing public searches is unconstitutional and therefore unjust, during this time the law stands as it is and must be upheld regardless of public opinion because it is law.  The general public should have no concerns with the public search as so long as no narcotic is being smuggled by the public then the search is not needed and will not be executed.  Those who knowingly break law by possessing and/or carrying narcotics in public places, or anywhere for that matter, are subject to search by “sniffer” dog is a step in the process towards their consequence.  Personally, if I had to be searched I’d rather be searched by the dog than a human officer.  The search performed by a dog is much less invasive and significantly more efficient when used as a precursor to a full pat down search by an officer.

The Canadian Charter of Rights and Freedoms represents the moral principles and guiding rules that Canadian society is based on.  Our proposed laws and legislations must not violate the Charter in any way if they are to become law in Canada.  On this basis, Fuller’s argument of morality being fundamentally incorporated with the law is founded.  However, it is in the interpretation of the Charter when legislation and law is executed that we see Hart’s perspective.

In terms of who is right and wrong, Fuller has some key points but his views are more focused on how things should be in society for everyone to be equal and live in harmony whereas Hart’s focus is not of what is moral or ethical it is on what is.  Law is law regardless of what foundations it is based upon.  So long as law is accepted by mass then the law is law and should be upheld.  In the case described it is somewhat more difficult to see the argument for Hart and Fuller than the Nazi debate but I have found that when you look into the fundamentals of cases like R. vs. Kang-Brown, the debate between Hart and Fuller is still there and their views can still be applied.  The debate actually puts the entire legal system at stake depending on which viewpoint you side with.  Those who agree with Fuller can go through the world’s history and find that law’s accepted all around the world are not law because they are immoral.  Those who agree with Hart accept the entirety of the legal systems and the laws made during each era as law even if they may have been immoral to us now, at the time they were enacted they remained law.   To disagree with Hart in this instance would be to agree with Fuller and eliminate all law that created today’s Charter because one cannot establish a Charter of Rights and Freedoms without understanding what happens when law is not applied in immoral and unconstitutional ways.  Freedoms and rights under Fuller in this case would not exist which would turn the foundation of law into disrepute.  The potential fallout from this would mean no law at all.  Hart’s view allows for all forms of law to be considered law which is not fully employable as for all law to be law we may end up never changing law resulting in a fearful society even though his view brings forth more order and structure to society and its functions.  It is through a mixture of these two views of law that we find a stable and just legal system formation.

References:

Canadian Charter of Rights and Freedoms. Retrieved on September 27, 2013 from: http://laws-lois.justice.gc.ca/eng/const/page-15.html

Canwest News Service, (2013).  Supreme Court Muzzles Sniffer Dogs.  Retrieved on September 27, 2013 from: http://www.canada.com/story_print.html?id=7cef5f97-7bfa-48bb-97db-05e8754897eb&sponsor=

CBC News, (2013).  Random Use of Police Sniffer Dogs Breaches Charter Top Court.  Retrieved September 27, 2013 from : http://www.cbc.ca/news/canada/random-use-of-police-sniffer-dogs-breaches-charter-top-court-1.745010

Farlex Inc., (2013). The Legal Dictionary.  Retrieved on September 27, 2013 from: http://legal-dictionary.thefreedictionary.com/Probable+Cause+and+Reasonable+Suspicion

Nadler, J. (2008).  Hart, Fuller and the Connection between Law and Justice,  Law and Philosophy , Vol. 27(1), Springer, pp. 1-34. Retrieved on September 27, 2013 from: http://www.jstor.org.ezproxy.kwantlen.ca:2080/stable/27652636

Pavlich, G. (2011). Law and society redefined . (pp. 30-36). Toronto : Oxford University Press.

R. vs. Kang-Brown.  Supreme Court of Canada Ruling.  Retrieved September 27, 2013 from: http://scc.lexum.org/decisia-scc-csc/scc-csc/scc-csc/en/item/4627/index.do

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2 responses to “HART vs. FULLER APPLIED TO “SNIFFER” DOGS IN CANADA

  1. This is definitely a timely issue! I appreciate such a topical addition to the blog.

    In your opening statement on Hart, you note that “Hart on the other hand sees moral[ity] as unrelated to a law’s formation”. Just a quick clarification – While Hart distinguishes between rules of morality and rules of law (with the latter being backed by the potential for sanctions in order to enforce conformity), he does not suggest that legal rules are formed ex nihilo, free from any moral considerations. Primary rules may indeed reflect moral beliefs and social norms. Hart’s point is that, as Pavlich (2011: 48) notes, “the validity of law is not determined by referring to morality, but by examining how the conventional and internally appraised rules of recognition function in a given society”. It is not, therefore, that law is devoid of moral content – far from it – but rather that the moral content of law is, from Hart’s perspective, irrelevant when considering its validity *as law*.

    Regarding the case study that you explore, I think that you have done a great job of unpacking the facts of the case and some of the legal issues associated with the SCC ruling.

    You argue that:

    “The morality behind the public search of property and persons may embark into a feeling of “Big Brother” among some members of public but the question becomes more about who is feeling this pressure.  Is it the public who abide by the laws and do not partake in illegal narcotics?  Or is it the public who uses public spaces to conduct illegal narcotic transactions and movement of narcotic products? “

    Question: Is this not a roundabout way of saying ‘if you have nothing to hide, you have nothing to fear’? If so, how far are you prepared to take that argument? How much surveillance and intrusion is justifiable in a democratic society?

    In your conclusion, you argue that Fuller is “more focused on how things should be in society for everyone to be equal and live in harmony”. Returning to his work on procedural morality, I am not sure that this is the case. Fuller, as Pavlich (2011) notes, is concerned with the internal morality of lawmaking as a craft (as expressed by his ‘desiderata’ for valid law). We should note that social equality and harmony are not among his desiderata. This is, in part, why Pavlich finds Finnis to provide the more persuasive argument against the South African Apartheid laws. Also, we should be careful when characterizing Fuller – his argument about the validity of Nazi-era statutes reflects a position (which ended up being reflected in the case) regarding the distortion of legality in WWII Germany. He does not argue that all historical law should be retroactively purged and discarded according to contemporary values.

    • pilotzero

      The Big Brother argument was meant to be a round about way of getting to the ‘if you have nothing to hide, you have nothing to fear’ argument but without taking it to the full extent of that statement. I find there is a massive differene between things like a “sniffer” dog walking through a park and detecting narcotics and the complete invasion into people’s banking, phone calls, email monitoring, etc.

      For a democratic society, surveillance and intrusion is necessary in certain cases, paroled or probationary inmates for example, but for the general public to be subject to the same restrictions as these cases it becomes an infringement on our rights to privacy and freedom. However, if someone in the general public is partaking in illegal action and is caught doing so this invasion and surveillance should be brought in at an introductory level, i.e. a police officer’s warning gets attached to an “info” file in the RCMP database that is pulled up whenever the individual’s name is run through the Police systems. This introduction to surveillance is justified for the protection of both officer and general public as it provides the necessary background information for potential risk factors of the individual. This level of surveillance also allows for a timeline on progression of criminal behaviors should it appear in later years.

      The level of surveillance for Big Brother is significantly more intrusive than a “sniffer” dog in a bus depot or park. Essentially any dog could pick up on the smell of marijuanna and give police an indicator, does that mean that people should not be permitted outside the home? The only difference is in the fact that the police specifically select dogs with the highest sense of smell and train them to be highly accurate in the detection of narcotics that human noses cannot detect (like cocain and heroin for example).

      In the conclusion, I found Fuller’s view to be more expressive in interpretation of founding laws as rules if they were deemed immoral through creation process and in doing this he creates a basis of no law can be law if it goes against morality. I agree Finnis has a better argument for the equality of all, I just also found that by employing Fuller’s theory on rules instead of immoral law it became similiar in this argument. When characaterizing Fuller and immoral law’s around the Nazi-era, to take it larger and apply his ‘rules not laws’ to the issue. By shifting the law title to a rule, essentially you are absolving law from the consequences of the actions that took place. In completing this action, law is now no longer able to be held accountable for the destruction of people when in reality, it condoned the behavior under Hitler’s rule.