Supreme Court says Toronto police breached Charter in minority search case

The Supreme Court of Canada has sent a stern message to police over how they interact with racial minorities in inner-city neighbourhoods in a decision criticizing three Toronto officers for entering a public-housing backyard without permission or a warrant in their search for two suspected criminals.

The case of Tom Le involved some of the hot-button issues of urban policing – guns, drugs and heavy-handed tactics in high-crime areas, tactics that included carding young racialized men.

Mr. Le, who is Asian Canadian, had been chatting in a yard with four young black men on a May night in 2012, when three officers entered, demanded to see identification documents, asked them what they were doing and told them to hold their hands out. When Mr. Le appeared nervous, the officers asked him what was in his satchel. He ran off. Police ultimately found drugs, a gun and cash in the bag.

Ontario Superior Court Justice Kenneth Campbell found Mr. Le guilty of several gun and drug offences, rejecting his argument that police violated his rights under the Charter of Rights and Freedoms, or that any racial profiling had occurred. The Ontario Court of Appeal upheld the convictions by a 2-1 margin.

But the Supreme Court, in a 3-2 ruling on Friday, threw out the convictions and ordered Mr. Le acquitted because of what they described as serious violations of his rights.

While Justice Campbell had noted the incident happened in a high-crime area, the Supreme Court majority said that did not give police licence to enter a private yard. “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,” Justice Russell Brown and Justice Sheilah Martin wrote for the majority, supported by Justice Andromache Karakatsanis.

They also said they agreed with the dissenting appeal court judge – Justice Peter Lauwers – who said police would probably not have so “brazenly entered a private backyard and demanded to know what its occupants were up to in a more affluent and less racialized community.”

As for the police demand to see their identification, they said, “Carding takes a toll on a person’s physical and mental health.”

A key issue was whether police had detained Mr. Le, and if so, if the detention was illegal. The majority said as soon as the police entered, there was an arbitrary detention – because police had no valid investigative reason for being in the yard (they could have simply spoken from the other side of the low fence) and because their intimidating behaviour, seen from Mr. Le’s point of view, would have made him feel he could not leave, even though he had the right to do so. And to understand what he felt, courts must be prepared to walk in “the shoes of the accused,” which includes understanding the racial context.

The dissenting judges – Justice Michael Moldaver and Chief Justice Richard Wagner – said the majority had twisted the facts and made the police behaviour look worse than it was. While they agreed the police entry into the yard was illegal, they said the officers acted in good faith and the acquittals would undermine the justice system’s reputation.

“The police will have to be a lot more careful after this decision, I would imagine, in using their powers,” one of Mr. Le’s lawyers, Emily Lam, said in an interview.

“It’s an acknowledgement that where you live doesn’t dictate the level of rights you get,” said Samara Secter, another of his lawyers.

Faisal Mirza, a lawyer who represented the Canadian Muslim Lawyers Association, which intervened in the case, called the ruling “a very significant step forward in our Charter jurisprudence, to understand that people experience interactions with the police in very different ways.”

The Toronto police did not reply to a request for comment. Security guards had told the three officers one of the two suspects had been seen nearby days or weeks earlier and that there was a concern drug traffickers had been in the yard.