By: Ulfa Ismail
R. v. Le, 2019 SCC 34, [2019] 2 S.C.R. 692
LSOU Publications
November 1, 2023
Terms
S.9 of the Charter of Rights and Freedoms: Detention or imprisonment
States that everyone has the right to not be arbitrarily detained or imprisoned.
S. 24(2) of the Charter of Rights and Freedoms: Exclusion of evidence bringing administration of justice into disrepute
In proceedings under subsection (1) section (2) states that if a court concludes that evidence was brought in a way which infringed upon any charter rights and freedoms, the evidence should be excluded if circumstances suggest that the inclusion of evidence will lower peoples faith and trust in the justice system.
Background
On May 25th, 2012 around 10:40 p.m., Mr. Tom Le, then a resident of the Toronto Housing Co-operative known as L.D. townhouse, was spending time with four friends. The group consisted of all males, Mr.Le being Asian and his four friends being black.
Without having witnessed a crime, obtaining a warrant, sufficiently warning occupants or receiving Mr.Le’s consent, three police officers, Csts. Teatero, Reid and O’Toole simply entered Mr.Le’s residence by way of his backyard gate.
Before entering, officers had spoken with the co-operatives security guard. In conversation, Mr.Le’s residence was described as a “problem address” where a wanted suspect sometimes roamed and drug dealing took place.
After entering Mr.Le’s private residence, two officers began questioning Mr. Le, asking about the contents of his bag and demanding he produce identification documents. Meanwhile, a third officer remained on guard, patrolling the bordering areas of Mr.Le’s residence and at one point, directing one of Le’s friends to keep his hands where he could see them. The property’s exit remained physically blocked by officers. Upon being questioned, Mr.Le unsuccessfully attempted to flee the scene and was arrested. Upon searching him and his bag police found a handgun, 13 grams of crack cocaine and a considerable amount of cash.
Procedural Posture
Following his arrest Mr.Le received ten firearm and drug-related charges. At trial, he argued that the evidence could not be used against him in court because doing so violated his Section 9 Rights under the Canadian Charter of Rights and Freedoms which states that “everyone has the right not to be arbitrarily detained or imprisoned”. However, given Section 24(2), evidence collected in this case could only be excluded if the latter would bring the administration of justice into disrepute. In simplified terms, evidence acquired in a manner considered unlawful can be excluded if submission of said evidence would diminish trust in the courts and justice system.
At trial, it was agreed upon that the manner in which officers had entered Mr.Le’s backyard and questioned his friends was unlawful. However, the trial judge held that Mr.Le was not wrongfully detained upon police’s initial entry. Rather, detainment only began when officers had questioned Le about his bag. Without being physically restrained, Mr.Le displayed signs of nervousness when being questioned. Given this behaviour, officers had reason to suspect that the bag contained a firearm. The evidence, which had been collected from Mr.Le while he was detained and attempted to flee, was admissible. Consequently, Mr.Le was found guilty.
On Appeal to the Court of Appeal for Ontario
At the Court of Appeal for Ontario, the majority agreed with the judgements made by the trial judge. The majority held that any technical breaches were made in good faith and had minimal potential impact on people’s faith in the justice system. Also relevant was the reliability of evidence and the seriousness of the charges. Hence, Mr.Le’s appeal was dismissed.
Response to the Appeal
On appeal to the Supreme Court of Canada, the majority disagreed with the lower courts and held that Mr.Le was illegally detained. To answer the question of when detainment starts, it is important to consider how an ordinary person may interpret police behaviour. Given the manner in which police entered Mr.Le’s backyard, it was reasonable for Mr.Le to believe that he was not free to go and thus, was detained. Given this reasonable interpretation of the circumstances, the majority held that detainment had begun the moment officers entered Mr.Le’s backyard.
Additionally, Le’s residence being described to police as a “problem address” by housing security did not serve as reasonable grounds for suspicion. That being so, the detainment of Mr.Le was unlawful.
If the detainment and entry of evidence were allowed, this would harm people's faith in the justice system. This loss of trust was especially consequential given that the incident had taken place in a low-income neighbourhood with individuals who were members of racially marginalized groups. To ensure communities are kept safe and have trust in law enforcement, the
responsibility of the policing system to lawfully engage with community members must be taken seriously.
Implications
R. v. Le is a case which emphasizes the seriousness of Charter-infringing conduct that can contribute to a decreased level of faith in the Canadian justice system, especially by communities marginalized on the basis of race and economic status.
So as not to infringe on Section 9 of the charter, it is critical that police do not wrongfully detain individuals in their line of duty. The question of what constitutes detainment is relevant to approach from a place which considers the unique circumstances of an individual. The historical and ever-present reality of racial profiling in policing instills a level of distrust that can be disproportionately high among racialized minorities. Due to this, members of marginalized communities can reasonably form different interpretations of police behaviour and therefore, have a different understanding of their rights and restrictions when interacting with police.
Outside of themes of marginalization and race, there are various cases which may bring a person to incorrectly interpret an interaction with police as detainment. An individual for example, may have a tendency to feel anxious around police for reasons outside of marginalization. With that, there is the larger question of what other types of scenarios deem it reasonable for courts to define detainment from the perspective of the individual interacting with police, rather than the police themselves. The lack of clarity around what constitutes as detainment may be rooted in a number of broader issues. Namely, that people lack knowledge of their rights and restrictions or perhaps, are fearful of exercising said rights in the face of police authority.
The practice of carding, in which a police officer approaches an individual and asks for ID with no apparent reason to suspect criminal activity, remains legal in Canada. In the pursuit of safer communities and improving relations with police, courts must consider the unique contexts of racialized individuals so as not to harm Canadians' faith in the larger justice system.
Works Cited
CanLII. “Schedule the Constitution Act, 1982, Schedule B to the Canada Act 1982 (UK), 1982, c 11.” Canlii.org. Accessed October 29, 2023. https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html.
Supreme Court of Canada. “Case in Brief: R. V. Le,” 2019. https://www.scc-csc.ca/case-dossier/cb/2019/37971-eng.pdf.
Supreme Court of Canada. “R. V. Le - SCC Cases.” Lexum.com, May 31, 2019. https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/17804/index.do.
Here's a link to a document with this case brief, as well as complete citations: https://docs.google.com/document/d/1Xrb4z9sSj2sRjBdq7r3SxQa2bAIRdBDD8gQaNdwImc8/edit?usp=sharing
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