If you mean racial profiling, the answer is no. But if you mean compiling a profile of who is likely to be a bomber by other factors -- do they have luggage, did they pay for a one way ticket only, are they travelling to a place for the first time -- the answer is yes.
Airport security is a governmental function. As a result the Constitution applies. Section 15 of the Charter provides:
"15. (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability."
Profiling basis on race, national or ethnic origin or religion would clearly breach s. 15 of the Charter. However, there is a limit on the "equality" section if the Charter and, in theory, racial profiling might pass if it met the test for a reasonable limit on a Charter right. The Charter provides:
"1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society."
R. v. Oakes [1986] 1 S.C.R. 103 sets out the analysis for a limit to a Charter right:
- There must be a pressing and substantial objective
- The means must be proportional
- The means must be rationally connected to the objective
- There must be minimal impairment of rights
- There must be proportionality between the infringement and objective
Racial profiling simply won't meet the Oakes test. Remember the two attacks on Israel's main airport were by persons of Japanese and German ethnic origin -- racial profiling would have missed both attacks.
Now, profiling by behaviour, how a person behaves instead of whether they belong to a, say, specified religion, is almost certainly proper under the Charter. What's more, behavioural profiling works better than racial profiling if only because racial profiling is easy to avoid. Remember Richard Reid, the Shoe Bomber, would not have been subject to racial profiling.
So, profiling, in a form, is proper.
2 comments:
Thanks for this Morton.
I don't oppose profiling, racial or otherwise, if it's done within reason. I would consider it among one of many factors, along with age, gender, etc.
An elderly woman is probably the least likely a candidate to perform a terrorist act, for example.
Of course, I don't want to see most Muslims suffer undue scrutiny and harassment. But let's not cut off our nose just to spite our face, either and become "color blind" to the point of stupidity.
In order to live up to so-called egalitarian principles, little old ladies must suffer abuse.
I resent this security theater treating all their passengers like potential terrorists. People with knee or hip replacements, prosthetics and colostomy bags getting abused at airports.
Behavioral profiling may be effective, but to play Devil's Advocate: it might set off false positives for those who are naturally nervous and there may be many 'innocents' who get harassment from security officials.
There was nothing wrong with pre-9/11 security measures except for one thing. What made 9/11 possible ultimately, was the idiotic policy of giving in to all demands made by hijackers.
If I had the choice between the pornoscanners/groping or a less than perfect airport security system, I'd rather go with the latter. Someone who is determined to do great harm will find a way to unleash damage no matter how great security is.
I'd rather have freedom than live in a police state.
Post a Comment