Published On: Jun 10,2019
The top court in Canada, recently found that section 9 of the Charter was violated when the police had entered a fenced backyard area for the purposes of questioning and “carding” five (5) racialized men without the requisite grounds for so doing. In broad strokes, s. 9 of the Canadian Charter of Rights and Freedomsavers: Everyone has the right notto be arbitrarily detained or imprisoned. By way of general principles, “detention” under s. 9 of the Charter refers to “a suspension of the individual’s liberty interest by a significant physical or psychological restraint” (see: Reginav. Grant, at para. 44(1.); see also Regina v. Mann, 2004 SCC 52 (CanLII),  3 S.C.R. 59, at para. 19; Regina v. Clayton, 2007 SCC 32 (CanLII),  2 S.C.R. 725, at para. 66; Reginav. Suberu, at paras. 3, 21 and 24)
In Reginav. Lee, Tom, et. 2019 SCC 34, by way of a three (3) to two (2) majority found a breach of s. 9. The relevant facts were as follows. Three (3) police officers had entered the yard at night after being told it was at a “problem address” with “concerns of drug trafficking in the rear yard.” The five (5) men in the yard had been talking and appeared to be doing nothing wrong. The police questioned them, required them to produce identification, and directed some of them to keep their hands in sight. When the police asked the accused what was in a satchel he was carrying, the accused fled. The police caught and arrested him, finding cocaine, a loaded firearm, and cash. The trial judge held the accused was not detained until the police asked what was in his satchel, and that the police were entitled to enter the backyard pursuant to the doctrine of implied licence.
Justices Brown and Martin JJ., Karakatsanis J. concurring, held that there are three (3) factors in determining whether a detention exists:
the circumstances leading to the encounter as reasonably perceived by the accused;
the police conduct; and
the characteristics or circumstances of the accused.
All three factors supported the conclusion that the accused was detained the moment the police entered the backyard. Despite an absence of a finding of racial profiling, the accused’s status as a racialized person was relevant to an assessment of the encounter. At paragraph 97, the Supreme Court of Canadastated, as follows in relevant part:
. We do not hesitate to find that, even without these most recent reports, we have arrived at a place where the research now shows disproportionate policing of racialized and low-income communities (see D. M. Tanovich, “Applying the Racial Profiling Correspondence Test” (2017), 64 C.L.Q. 359). Indeed, it is in this larger social context that the police entry into the backyard and questioning of Mr. Le and his friends must be approached. It was another example of a common and shared experience of racialized young men: being frequently targeted, stopped, and subjected to pointed and familiar questions. The documented history of the relations between police and racialized communities would have had an impact on the perceptions of a reasonable person in the shoes of the accused. When three officers entered a small, private backyard, without warrant, consent, or warning, late at night, to ask questions of five racialized young men in a Toronto housing co-operative, these young men would have felt compelled to remain, answer and comply.
With respect to the notion of experience with police encounters and it’s nexus to detention, the SCC categorical rebuked such contentions. The fact that a person has experienced repeated interactions with the police (as the accused had) does not mean they are less likely to feel intimidated or detained by police, and may in fact contribute to a sense of “learned helplessness.” In this case, while the defendant had testified that at one point in the encounter he had felt free to leave, the detention analysis was objective and not subjective.The trial judge had also erred by rejecting the accused’s evidence on some issues but then appearing to accept that he had not felt detained. The detention was found to be arbitrary because it lacked the requisite grounds.
On the doctrine of “implied licence”, the Court also rejected the Crown theory; it did not justify the police’s entry into the backyard. This is because there was no need to enter the yard to communicate with the occupants, and the licencedid not authorize the police to enter private property to conduct a speculative criminal investigation.
When considering the exclusion of evidence under Section 24(2) of the Charter, the court found that the police misconduct was serious and had a significant impact on the accused’s s.9 interests. Where the first two (2) Reginav. Grant, 2009 SCC 32, factors make a strong case for exclusion, “the third inquiry will seldom if ever tip the balance in favour of admissibility” (at para. 142). It was “precisely this sort of police conduct that the Charter was intended to abolish” (at para. 5).
A minority opinion was rendered by two (2) justices. Justice Moldaver, writing in dissent for himself and Wagner C.J., stated that the majority had “recast” the facts inconsistently with the findings of the trial judge. He would have held that an arbitrary detention occurred only briefly when the police asked about the contents of the accused’s satchel, and would have admitted the evidence under s.24(2
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