Between a Hunch and a Hard Place: Making Suspicion Reasonable at the Canadian Border
| Published date | 01 December 2010 |
| Author | Anna Pratt |
| Date | 01 December 2010 |
| DOI | 10.1177/0964663910378434 |
| Subject Matter | Articles |
Between a Hunch and a
Hard Place: Making
Suspicion Reasonable at
the Canadian Border
Anna Pratt
York University, Ontario, Canada
Abstract
This article examines how suspicion is made reasonable at the Canadian border. It
examines in local and empirical terms the ‘moment of decision’ on the frontline of
border control, and the translation of this moment in the courts. It begins with a
sketch of the legal regime that governs the discretion of border officers through the
standard of ‘reasonable suspicion’ before considering the variety of low-level risk knowl-
edges that coincide to make suspicion reasonable on the frontline. The ‘objectivity effect’
of the language of risk indicators (Rose, 1988) effectively obscures the multiplicity and
hybridity of the ‘low-level’ knowledges at play, enhances the discretion of border officers
and protects their decisions from serious scrutiny. By asking ‘who uses what knowl-
edges, in what ways and with what effects?’ (Valverde et al., 2005: 115–116), this study
responds to scholars who have appealed for the empirical specification and elaboration
of risk knowledges. In so doing, this investigation also begins to unsettle the quasi-
scientific representation of suspicion that prevails in the courts and urges that more spe-
cific, empirical attention be paid to how suspicion is made reasonable on the frontline.
Keywords
administrativ e knowledges, border control, discretion, law, race, reasonable,
suspicion, risk
It can be seen that the information here clearly falls far short of the usual standard of rea-
sonable grounds. However, that is not the standard at issue. It can be seen that on the con-
tinuum between lucky hunch and reasonable suspicion there is a very fine line between what
is enough to warrant grounds ... I am of the view that [these] fall more on the side of the
line toward lucky hunch than on the reasonable suspicion side. However, it is very close and
for the purpose of this analysis, I will assume a reasonable suspicion on the part of Inspec-
tors Grewal and Ingalls. (RvSekhon [2007]: para. 150)
Social & Legal Studies
19(4) 461–480
ªThe Author(s) 2010
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DOI: 10.1177/0964663910378434
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461
Introduction
Whereas the legal standard of ‘reasonable and probable grounds to believe’ governs the
use of most enforcement powers (Hunter vSoutham Inc. [1984]), it is the decidedly more
awkward and lesser legal standard of ‘reasonable suspicion’ that governs the broadly dis-
cretionary and coercive search and seizure powers of frontline border officers in Canada
(Customs Act [1985]; Dehghani vCanada [1993]; RvMonney [1999]; RvSimmons
[1988]). ‘Reasonable suspicion’ is an unusual coupling. Reason, the essential constitu-
tive feature of the modern liberal subject, provides the privileged vantage point from
which to access the ‘Truth’, whereas suspicion is what remains when this vantage point
is inaccessible and you are left with hunches and intuition.
Whereas traditionally the standard of ‘reasonableness’ has worked to authorize
commonsense knowledge in judges and juries, in the context of frontline border control
the standard of reasonable suspicion strains to justify itself in rational/scientific terms by
reference to objective and reliable risk indicators as defended by border control ‘experts’
but also, and centrally, by reference to the judgement of customs officers as constituted
by their training and experience. This privileging of ‘trade knowledge’ (Levi and
Valverde, 2001: 820) in the constitution of reasonable suspicion importantly complicates
the traditional distinction between rational-scientific expert knowledge and the everyday
knowledge flagged by the concept of ‘reasonableness’ that has always been crucial to the
common law.
1
Unlike a mere hunch, suspicion is made reasonable in the courts in the
context of border control by reference to objectively discernible, cold, hard facts. Rea-
sonable suspicion emerges as a rather straightforward matter of the rational quasi-
scientific assessment of objectively verifiable risk indicators by trained and experienced
border officers.
On the frontline, things are much more muddled. Suspicion is made reasonable
through a cocktail of different low-level administrative knowledges that derive from
quasi-scientific frameworks, for example risk analysis and prediction techniques based
on rates of compliance, expert intelligence and second-hand social psychology on decep-
tion detection, but also through on the job knowledge such as that gained individually
through experience, informants, gossip and quasi-magical intuition. All of these are
intertwined with moralistic and racialized knowledges. Risk knowledges deployed at the
border are ‘hybrid’ in the sense that authorities ‘often mix expert and everyday know-
ledges of risky situations in such a way as to create new assemblages of risk information
that are neither scientific nor antiscientific’ (Valverde et al., 2005: 3), neither wholly
expert nor lay, neither fully reasonable, nor merely suspicion.
The considerable discretion of frontline border officers is integral to their occupa-
tional identity; like police officers, they are ‘choosers’ (De Lint, 1998). And their
choices are extraordinary. Like police officers, border officers’ discretion is linked
to state authorized coercion: arrest, detention, search, seizure. However, unlike police
officers, the discretion of border officers has received relatively little scrutiny – scholarly
or otherwise.
2
This article examines the constitution of reasonable suspicion at the
Canadian border. I examine in local and empirical terms the ‘moment of decision’
on the frontline of border control (Salter, 2008), and the translation of this moment
in the courts.
462 Social & Legal Studies 19(4)
462
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