The Supreme Court of Canada is being asked to tell police to respect the privacy rights of minorities in poor neighbourhoods in a case in which three Toronto officers entered a public-housing backyard without permission and found a man with a gun and cocaine.
Tom Le, who is Asian-Canadian, was chatting with four black youths when the officers entered the townhouse yard on a spring day in 2012 and asked them questions. They said they were looking for two dangerous men. They also wanted to know if the young people were trespassing, and asked them for identification. They told one young man to keep his hands in front of him.
Mr. Le, who was carrying a bag, bolted when police asked to look at it. Officers tackled him and found a loaded gun and cocaine on him. Mr. Le was convicted of gun and drug offences at trial, and the Ontario Court of Appeal upheld his conviction in a 2-1 ruling, saying that even if the police had no legal right to enter the backyard, Mr. Le had no “reasonable expectation of privacy” as a guest, and his rights therefore were not violated. He appealed to the Supreme Court, which heard the case on Friday morning.
To Mr. Le’s lawyers, and several intervenors, the case raises questions about police conduct toward minorities, while to the Ontario government’s prosecutors, it is about protecting communities.
“We ask you to look at the bigger picture here,” Faisal Mirza, representing the Muslim Canadian Lawyers Association, an intervenor group, told the judges. “It deals with a lot of innocent people who live in these priority neighbourhoods. Who feel they can’t just say, ‘We want to walk away and be left alone.’ ”
That led to a revealing exchange with Justice Michael Moldaver, the court’s leading authority on criminal law. Justice Moldaver’s questions and comments suggested he felt the police were trespassing. “The fact that they trespassed, I give you,” he said at one point to Emily Lam, one of Mr. Le’s lawyers. At the same time, he was skeptical that Mr. Le’s constitutional privacy rights were infringed. When Mr. Mirza said police do not walk into the backyards of affluent lawyers and judges, Justice Moldaver replied that if they did, they would probably be invited in for a drink.
Outside the courtroom, Mr. Mirza said: “It’s interesting that he starts from the premise that it would be innocuous.” He called the Le case the bread-and-butter of criminal law for adults and youth in urban centres such as Toronto.
“I think this case has a lot of people’s attention, in the legal community particularly. Many of us lived in those townhouses. We can almost see ourselves in those backyards. Our concern is all the people who never come before the court and how they’re treated.”
The Ontario Attorney-General’s department offered a different view. “Police approach Canadians at their homes and ask questions every day for a wide variety of reasons,” it said in its written legal argument filed with the court.
Samara Secter, representing Mr. Le, summed up her view of the prosecution’s position: “The outcome of that position is that we should always expect the state wherever we go,” she told the five judges who heard the case. She called that “odious.”
Outside the courtroom, Ms. Lam said that if Mr. Le succeeds in his case, the court would recognize that there is a disproportionate impact on racialized and marginalized communities of police intrusions on privacy, and on the right to be free from arbitrary detention.