In a 3 to 2 decision, the Supreme Court of Canada set aside
a man’s gun and drug related convictions ruling that, in light of the police’s
unlawful conduct, the admission of incriminating evidence would bring the
administration of justice into disrepute. (See R. v. Le, 2019 SCC. 34)
Tom Le was a 20 year old Asian-Canadian man who was arrested
by police at a west-Toronto housing complex in May of 2012. The complex
was in a high crime area and the police were told by the complex’s security
guards that the backyard of the house in which the police confronted Le was “a
problem address” because of concerns about drug trafficking.
On the night in question, Le was chatting with four young
black men in the backyard when the police showed up. The men were doing
nothing wrong. They were just talking. The backyard was small and
was enclosed by a waist-high fence. Without a warrant or consent, or
without any warning, two police officers entered the backyard and immediately
questioned the men about what was going on, who they were and whether any of
them lived there. They also required the men to produce documentary proof
of their identities. Meanwhile, a third officer patrolled the perimeter
of the property, stepped over the fence and yelled at one man to keep his hands
where the officer could see them. Another office issued the same order.
One officer questioned Le and demanded that he produce
identification. Le responded that he did not have any with him. The
officer then asked him what was in the satchel he was carrying. At that
point, Le fled, was pursued and arrested and found to be in possession of a
firearm, drugs and cash. At his trial, Le sought to exclude this evidence
under s.24(2) of the Canadian Charter of Rights and Freedoms (“Charter”) on the
basis that the police had infringed his constitutional rights to be free from
unreasonable search and seizure (under s.8 of the Charter) and from arbitrary
detention (under s.9 of the Charter).
The trial judge convicted Mr. Le and held that he lacked
standing to advance a s.8 claim because there was no objective reasonableness
to any expectation of privacy that he might have had as a “mere transient
guest” in the backyard. The trial judge also held that Le’s detention was
not arbitrary as the police had reasonable grounds to suspect he was
armed. A majority of the Ontario Court of Appeal agreed with the trial
judge and found that if there were any breaches, they were “technical,
inadvertent and made in good faith”.
On appeal to the Supreme Court of Canada, the court held
that Le’s appeal should be allowed, the evidence excluded and his conviction
set aside and acquittals entered.
The majority decision was co-authored by Justices Brown and
Martin with Justice Karakatsanis concurring. Justice Moldaver and Chief
Justice Wagner dissented.
The majority of the SCC held that the circumstances of the
police entry into the backyard had effected a detention that was both immediate
and arbitrary and constituted “serious misconduct”. It was precisely this
sort of police conduct that the Charter was intended to abolish. On
balance the admission of the evidence would bring the administration of justice
into disrepute.
Detention can be either physical or psychological.
Psychological detention by the police can arise in two ways: where the accused
is legally required to comply with a direction or demand by the police; or
where the accused is not under a legal obligation to comply but a reasonable
person in the accused’s position would feel obligated and conclude they were
not free to go. This detention fell under the second category.
There were three factors that aid in the analysis.
- The circumstances given rise to the encounter would
reasonably be perceived by an individual as supporting a finding of
detention. The conduct of the police exceeded the norms of community
policing. There was no obvious cause for any police presence in the
backyard and the police never expressly communicated to the men why they
were there. They immediately started asking questions and the height
of the backyard fence allowed full interaction without entry.
- The second factor - the nature of the police conduct -
supported the conclusion that tension arose as soon as the police entered
the backyard and started asking questions. When the police enter a
private residence as trespassers it colours what happens next and supports
a finding of detention. The actions and language of the police
showed that they were immediately taking control of the situation.
Coming over the fence to enter a private residence conveyed a show of
force. The reputation of a particular community or the frequency of
police contact with its residents does not in any way license police to
enter a private residence more readily or intrusively than they would in
other, more affluent communities. Here there was a tactical element
to the encounter and the mode of entry could be seen as corrosive and
intimidating by a reasonable person.
- Lastly, the third factor – the particular
characteristics or circumstances of the individual involved i.e. Mr. Le –
a reasonable person “imbued” with his experiences would conclude that
there was tension from the moment the officers entered the backyard and
started asking questions. Courts need to appreciate that individuals
in some communities may have different experiences and relationships with
police then others and those experiences may impact upon their reasonable
perceptions whether they are being detained. At the detention stage
the analysis takes into consideration the larger, historic and social
context of race relations between the police and various racialized
groups. Because the focus is how the combination of a racialized
context a minority status would affect the perceptions of a reasonable
person in the shoes of the accused and not on what motivated the officers
to act as they did a finding of that there had been no racial profiling
has little bearing.
When a detention is established, the court must consider
whether the detention is arbitrary. The implied license doctrine, which
allows the police or any member of the public on legitimate business to proceed
from the street to the door of a house so as to permit convenient communication
with the occupant does not apply in this case because if communication was the
officer’s purpose, it did not require their entry onto private property.
The police had a subsidiary purpose – a speculative criminal investigation.
A suspect’s presence in a so called high crime area is not by itself a basis
for detention.
The majority held that where evidence is obtained in a
manner that infringes a charter right or freedom, s.24(2) provides that the
evidence must be excluded if it is established that, having regard to all of
the circumstances, its admission would bring the administration of justice into
disrepute. The focus is on the overall repute of the justice system
viewed in the long term by a reasonable person, informed of all relevant
circumstances and of the importance of charter rights and not on the impact of
stating misconduct upon a particular criminal trial. The more serious the
state-infringing conduct and the greater the impact on the Charter-protected interest
the stronger the case and conclusion.
Here good faith could not be ascribed to these officers’
conduct. Their own evidence made it clear that they fully understood the
limitations upon their ability to enter the backyard to investigate individuals.
This was serious police misconduct and weighed heavily in favour of a finding
that admission of the resulting evidence would bring the administration of
justice into disrepute.
In contrast, the dissenting judges found that the admission
of the evidence would not bring the administration of justice into
disrepute. The dissenters focused on the trial judge’s findings of
credibility and the finding by the trial judge that the police had a legitimate
investigatory purpose for entering the backyard. Accordingly, they held
that such findings were entitled to deference. The minority held that
considering all of the circumstances it was clear that what must be done to
maintain the good repute of the administration of justice was to admit the
evidence because, in their view, the seriousness of the Charter-infringing
conduct fell on the “low end of the spectrum”.
Regards,
Blair
