SCC Throws Out Man's Conviction Because of Police Misconduct

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.

1. 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.

2. 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.

3. 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

Supreme Court Rules in Favour of Roadside Police Searches

In September of 2006, two police constables were in a marked police cruiser monitoring traffic on the Trans-Canada highway just west of Caronport, Saskatchewan.  They observed a car driven by Benjamin MacKenzie traveling toward them.  The police radar indicated that the car was traveling at a speed of 112 km per hour, only 2 km per hour over the posted limited.  However, the constables saw that the front end of the car was “pitching forward like it was slowing down very fast”.  They attributed this to a sudden and rapid deceleration of the car from 112 km per hour to 89 km per hour – the speed at which the car was traveling when it passed their police cruiser. 

The officers pursued Mr. MacKenzie.  Two kilometers down the road they spotted his car parked on the side of the highway.  They had not signaled for him to stop.  They wanted to give him a warning about speeding, even though they were unsure how fast he had been driving. 

Mr. MacKenzie was the only occupant of the car.  As one of the constables approached his window, Mr. MacKenzie, unprompted, said he was sorry, he knew he was speeding  and that he would slow down in future.  When Mr. MacKenzie handed over his license and registration documents the police noticed that his hands were shaking.  Mr. MacKenzie appeared to be sweating, with beads of sweat forming on his forehead and his breathing was very rapid.   His carotid artery was pulsing very rapidly.  In addition, the police noted that Mr. MacKenzie’s eyes had a pinkish colour to them.  

Mr. MacKenzie’s level of nervousness was extremely high.  When questioned about the details of his trip he gave contradictory answers in a short period of time.  As a result, the police asked him to step out of the car on the basis that they believed that he was under the influence of drugs.   They then advised Mr. MacKenzie of his Charter rights, including his right to counsel.  Mr. MacKenzie said he understood his rights but declined to call a lawyer.  

The police asked Mr. MacKenzie if he would consent to a search of his car.  When Mr. MacKenzie refused to consent, the police used Levi, a “single-profile” narcotic detector dog, who had been assigned to them.  Levi conducted a perimeter search of the car and by his actions indicated the scent of drugs was in the rear hatch area.  The police arrested Mr. MacKenzie and began a manual search of the car.  They found several gift-wrapped boxes in the rear hatch which ultimately led to the discovery that they contained marijuana.  The police arrested Mr. MacKenzie for possession for the purpose of trafficking.

At trial, the police testified that there were a number of factors that led them to believe that Mr. MacKenzie might be involved in trafficking marijuana:

1. his erratic driving;
2. his extreme nervousness;
3. physical signs consistent with the use of marijuana; and
4. Mr. MacKenzie was traveling on a known drug pipeline.

Mr. MacKenzie’s case did not proceed to  trial.  In a pre-trial motion he moved to have the marijuana excluded from evidence on the basis of arguments grounded in his right under Section 8 of the Canadian Charter of Rights and Freedoms (“Charter”) against unreasonable search and seizure.  Mr. MacKenzie argued that the police lacked reasonable suspicion that he was involved in a drug-related offence when they had their dog sniff his vehicle.

The trial judge agreed with Mr. MacKenzie and excluded the evidence and directed that a verdict of not guilty be entered against him.   The Saskatchewan Court of Appeal reversed the decision, finding that “the constellation of objective factors” was sufficient to meet the reasonable suspicion standard.  The Court of Appeal set aside the acquittal and remitted the matter to trial.

In a 5 – 4 decision, the Supreme Court of Canada agreed with the Court of Appeal and dismissed Mr. MacKenzie’s appeal.  The majority decision was written by Mr. Justice Moldaver.  

Justice Moldaver found that reasonable suspicion for the police must be grounded in objectively discernible facts.  While it is critical that the line between a hunch and reasonable suspicion be maintained to prevent the police from engaging in indiscriminate or discriminatory practices, it is equally vital that the police be allowed to carry out  their duties without undue skepticism or the requirement that their every move be placed under a "scanning electron-microscope".

Officer training and experience can play an important role in assessing whether the reasonable suspicion standard has been met.  Therefore in assessing whether a case for reasonable suspicion has been made out, the court should analyze the objective reasonableness through the lens of a reasonable person standing in the shoes of the police officer.  Police training and experience should not be accepted uncritically by the courts.  The courts don’t owe deference to a police officer’s view of the circumstances because of his or her training or experience in the field.  Essentially a trial judge must appreciate the significance  of police training and experience when evaluating the worth of the factors considered in forming the belief that the accused might be involved in a drug-related offence.   

In this case, the trial judge accepted the that the police officers' testimony was credible.  The factors identified by the officers provided the objective basis needed to support his belief that Mr. MacKenzie might be involved in a drug-related offence.  Looking at the totality of the evidence through the lens of an officer with training and field experience in the transportation and detection of drugs, the officers’ subjective belief that Mr. MacKenzie might be involved in a drug-related offence was objectively substantiated.

The dissenting judges held a much difference view.  They held that judges must scrutinize dog-sniff searches and that courts must remain vigilant and not shirk their role in evaluating police conduct for Charter compliance, particularly where the only effective check on that action is after the fact independent judicial assessment.   

The dissenters (decision written by Justice LeBel) held that police cannot simply draw on their experience in the field to create broad categories of “suspicious” behaviour into which almost anyone could fall.  Such an approach risks transforming the already flexible standard of reasonable suspicion into the generalized suspicion standard that has been rejected in the past.  The "constellation of facts" grounding reasonable suspicion must be based in the evidence tied to the individual and capable of supporting a logical inference of criminal behaviour.  While undertaking an objective assessment of the evidence from the police officers perspective, a court should not show that police officer’s testimony any particular deference.  The danger of placing undue emphasis on an officer’s testimony is that a court may inadvertently subvert the objective component of the reasonable suspicion standard.

Justice LeBel, held that in this case the police lacked the requisite reasonable suspicion to conduct the dog-sniff search.   Specifically, the police lacked objective grounds on which to justify deploying a sniffer dog to search Mr. MacKenzie’s car.  He found that the trial judge had not committed an error of law or a palpable and over-riding error of fact.   He understood the reasonable suspicion standard.  The police in this case relied on markers that applied broadly to innocent people or markers only of generalized suspicion that were at best highly equivocal.  The dissenting judges would have allowed Mr. MacKenzie's appeal and restored the decision of the trial judge.

Regards,

Blair

Supreme Court Finds That Unlawfully Obtained Evidence Still Admissible

In a decision, delivered by Justice Thomas Cromwell of the Supreme Court of Canada, the court found that even though a police search of an accused's personal computers was unlawful, the evidence obtained as a result of the search should not be excluded, because the "violation was not serious" and because the police believed on reasonable grounds that the computer search was authorized by a warrant.  

 

In this case ( R v. Vu, 2013 SCC 60 ) the police charged Vu with production of marijuana, possession of marijuana for the purpose of trafficking and theft of electricity.  The police obtained a search warrant authorizing the search of a residence for evidence of theft of electricity.  The warrant allowed the police to search for documentation identifying the owners and/or occupants of the residence.   Even though the Information to Obtain a Search Warrant ("ITO") indicated that the police intended to search for, among other things, "computer generated notes", the warrant did not specifically refer to computers or authorize the search of computers.  In the course of their search of the residence, police found marijuana.  They also found two computers and a cellular telephone.  A search of these devices led to evidence that Vu was the occupant of the residence. 

 

At trial, Vu claimed that these searches had violated his rights under s. 8 of the Canadian Charter of Rights and Freedoms ("Charter") - which gives everyone the right to be free from unreasonable searches and seizures - and asked the judge to exclude the evidence.  The judge concluded that the ITO did not establish reasonable grounds to believe that documentation identifying the owners and or occupants would be found in the residence and so the warrant could not authorize the search for such documents.  In addition, the trial judge found that police were not authorized to search the personal computers and cellular telephone because those devices were not specifically mentioned in the warrant.  She excluded most of the evidence obtained as a result of those searches and acquitted Vu of the drug charges.  

 

The Crown appealed and the British Columbia Court of  Appeal set aside the acquittal and ordered a new trial.  In the Court of Appeal's view, the warrant had properly authorized the searches and there had been no breach of Vu's s. 8 Charter rights.  Vu further appealed to the Supreme Court of Canada.  He raised three issues:

 

1.    Did the search warrant properly permit a search for documentation identifying the owners and/or occupants?

 

With respect to this issue, Justice Cromwell agreed with the Court of Appeal that the ITO had established reasonable grounds to believe that relevant documents would be found in the residence.  It followed that the warrant properly authorized the search for that sort of material.  The Court of  Appeal found that the facts provided in the ITO were sufficient to support a reasonable inference on the part of the issuing justice that documentation evidence of ownership or occupancy would be found in the residence.  The ITO referred to the premises to be searched as a residence and as a "two story house".  It also indicated Vu owned the property and that electricity was being consumed there.  In Justice Cromwell's view it was a reasonable inference that a residence would be the place to look for documents evidencing ownership or occupation.  "Where else would one expect to find such documents if not in the residence itself."

 

2.    Did the warrant authorize the search of the computers and cellular phone?

 

Justice Cromwell held that s. 8 of the Charter seeks to strike an appropriate balance between the right to be free of state interference and the legitimate needs of law enforcement.  The police must obtain judicial authorization for the search before they conduct it, usually in the form of a search warrant.  The prior authorization ensures that before a search is conducted, a judicial officer is satisfied that the public interest in being left alone by government must give way to the government's interest in intruding on the individual's privacy in order to advance the goals of law enforcement.  An authorized search must be conducted in a reasonable manner.  This ensures that the search is no more intrusive than is reasonably necessary to achieve its objections.  Justice Cromwell reviewed the facts found by the trial judge and then noted that the general principle is that authorization to search a place includes authorization to search places and receptacles within that place.  However, this assumption is not justified in relation to computers because computers are not like other receptacles that may be found in a place of search.  He held that, "It is difficult to image a more intrusive invasion of privacy than the search of a personal or home computer.  Computers compromise the ability of the users to control the information that is available about them in two ways.  They create information without the users knowledge and they retain information that the users have tried to erase.  These features make computers fundamentally different from the receptacles of search and seizure lawyers have had to respond to in the past."

 

Justice Cromwell found that the traditional rule concerning the search of "receptacles" found within a search of a place simply cannot apply to computer searches and that prior authorization is required.  This means, in practical terms, that if police intend to search any computers found within a place they want to search, they must first satisfy the authorizing justice that they have reasonable grounds to believe that any computers they discover will contain the things they are looking for.  He added that the police may seize a computer if they come across one in the course of the search and the warrant does not specifically authorize its search and do what is necessary to ensure the integrity of the data and obtain a separate warrant at a later date.

 

3.    Should the evidence found on the computer be excluded?

 

Justice Cromwell found that in this case the search warrant did not authorize the search of computers found in Vu's residence.  However, he also found that the trial judge was wrong in concluding that the ITO contained no facts supporting a warrant to search for documents evidencing ownership or occupation of the residence.  Therefore he had to undertake his own analysis in view of that erroneous finding.  He found that the charter-infringing conduct by the police was "not serious", after all the ITO did refer to intention of the police to search for computer-generated documents and the state of the law with respect to the search of a computer found inside a premises was uncertain when the police carried out their investigation.  One of the police officers admitted in his testimony at trial that he intentionally did not take notes during the search of the computer so he would not have to testify about the details.  Justice Cromwell held that this was clearly improper and could not be condoned.  However, given the uncertainty in the law at the time, and the otherwise reasonable manner in which the search was carried out, Justice Cromwell concluded that the violation was not serious.  In addition, the record did not indicate that the police had gained access to any more information than was appropriate.  And the relevant question was, whether the truth-seeking function of the criminal trial process would be better served by admission of the evidence or by its exclusion.  He was of the view that, on balance, the evidence should not be excluded.  The police believed on reasonable grounds that the search of the computer was authorized by the warrant.  The search did not step outside the purposes for which the warrant had been issued and it did not include forensic examination.  The evidence retained was reliable, real evidence which was important to the adjudication of the charges on their merits.  

 

Accordingly, Justice Cromwell and a majority of the court dismissed Vu's appeal and upheld the order of the Court of Appeal setting aside the acquittals and directing a new trial.  

 

Regards,

 

Blair