A recent decision by the Supreme Court of Canada is sending a strong message regarding the harm of over-policing racial minorities in inner-city neighbourhoods.
In a 3-2 decision, the Supreme Court of Canada held that the police had no reasonable cause to enter a backyard and question an Asian-Canadian man and therefore set aside his convictions for possessing a gun, drugs and illicit cash.
In the evening of May 25, 2012, twenty year old Tom Le (“Le”) was speaking with four young black men in the backyard of a Toronto housing complex.
Police officers were tipped off by security guards who patrolled the complex that there were concerns of drug trafficking in the backyard of this address and that a suspect had been observed there.
Two police officers entered the backyard without consent or a judicial warrant and began to question and request identification from the young men. A third officer patrolling the perimeter of the property stepped over a low fence and told one of the men to keep his hands where he could see them.
One officer demanded that Le provide his ID and he was asked about the contents of a bag that was slung across his body. Le then attempted to flee the scene and was quickly tackled and apprehended. His bag was found to contain a loaded handgun and a considerable amount of cash. At the police station, Le turned over 13 grams of cocaine to police.
At his trial, Le argued that the evidence should be excluded under section 24(2) of the Charter of Rights and Freedoms as police violated his constitutional rights to be free from arbitrary detention and unreasonable search (contrary to sections 8 and 9 of the Charter).
At trial, the judge rejected Le’s position that police violated his rights under the Charter and found that police had legally detained Le. He was found guilty of several gun and drug offences and was also unsuccessful in challenging his convictions at the Ontario Court of Appeal. Le proceeded to commence an appeal to the Supreme Court of Canada.
SUPREME COURT OF CANADA’S DECISION AND REASONS
Contrary to the lower court decisions, the majority of the highest level of court in Canada threw out the convictions as a result of serious violations of Le’s rights under the Charter. The court ruled that the police actions amounted to an arbitrary detention and serious violation of Le’s rights and therefore the evidence must be excluded.
The purpose of section 9 of the Charter, prohibiting arbitrary detention, is to protect Canadians against unjustified state interference. A detention may not necessarily involve physical restraint, but may exist in a situation where “a reasonable person in the accused’s shoes would feel obligated to comply with a police direction or demand and that they are not free to leave”.
The Supreme Court found that in this case the detention was arbitrary as the police were trespassers and had no legal authority to detain the accused. Furthermore, their intimidating behaviour made Le feel as though he was unable to leave, even though he had the right to do so.
Although the incident occurred in a high-crime neighbourhood, the court found that the police did not have the authority to enter a private yard. The court stated:
Indeed, that a neighbourhood is policed more heavily imparts a responsibility on police officers to be vigilant in respecting the privacy, dignity and equality of its residents who already feel the presence and scrutiny of the state more keenly than their more affluent counterparts in other areas of the city.
The majority judges also found that the police had engaged in “carding” (a topic that we have previously blogged about), which is the police practice of randomly stopping and questioning individuals who are not suspected of any crime. This is a practice that unjustifiably affects racialized individuals.
The court found that the incident of the police entry into the backyard was another example of the experience of racialized young men who are targeted, stopped and questioned.
The court stated:
The impact of the over-policing of racial minorities and the carding of individuals within those communities without any reasonable suspicion of criminal activity is more than an inconvenience. Carding takes a toll on a person’s physical and mental health. It impacts their ability to pursue employment and education opportunities.
Le’s lawyers, were thankful for the Supreme Court decision in favour of their client and the message that is being distributed. Emily Lam stated:
We’re grateful that the court heard us, that they heard the voices of marginalized and racialized communities, all of whom have been saying that they are police differently, and the court recognizing that their experience has been different.
I think this is a push from the Supreme Court to have police recognize that everyone’s rights deserve respect.
There has been no real response from Toronto Police Services other than its spokesperson stating that the ruling is being “reviewed and considered by the Toronto Police Service’s professional standards unit”.
If you have been charged with a criminal offence or have any questions regarding your legal rights, please contact the experienced criminal lawyers at Affleck & Barrison LLP online or at 905-404-1947. We have a 24-hour phone service to protect your rights and to ensure that you have access to justice at all times.