Urban Alliance on Race Relations Welcomes Supreme Court's Decision

By Neil Armstrong

Photo contributed   Nigel Barriffe, Chair of the Board of the Urban Alliance on Race Relations

A judgment by the Supreme Court of Canada is being hailed as very significant regarding the rights of civilians in relation to carding and the over-policing of racialized and marginalized communities

"We are elated for this decision. It affirms that just because one lives in a less affluent neighbourhood doesn't mean our lives are any less valuable," says Nigel Barriffe, Chair of the Board of the Urban Alliance on Race Relations, one of the interveners in the case.

In the 3-2 majority decision in the case of R v. Le, the Supreme Court set aside the convictions of the appellant, Tom Le, and acquitted him.

The 170-page decision outlines that one evening [May 25, 2012], five young racialized men [four Black men and one Asian man], including the 20‑year‑old accused, were gathered in the private backyard of a townhouse at a Toronto housing co‑operative when three police officers arrived.

The young men appeared to be doing nothing wrong. They were just talking. Two officers entered the backyard, without a warrant or consent. They immediately questioned the young men and requested documentary proof of their identities.

The third officer patrolled the perimeter of the property, then stepped over the low fence enclosing the backyard and directed one of the men to keep his hands where he could see them. One officer questioned the accused, demanding that he produce identification and asking him what was in the satchel he was carrying.

At that point, the accused fled, was pursued and arrested, and found to be in possession of a firearm, drugs and cash.

At his trial, the accused sought the exclusion of this evidence under Section 24(2) of the Canadian Charter of Rights and Freedoms on the basis that the police had infringed his constitutional rights to be free from unreasonable search and seizure and from arbitrary detention.

In convicting the accused, the trial judge held that he lacked standing to advance the arbitrary detention claim, saying that he was detained only when the officer asked him about the contents of his bag, that the detention was not arbitrary, and that had a breach of Charter rights occurred, the evidence would be admissible. A majority at the Court of Appeal agreed and dismissed the accused’s appeal from his convictions.

 However, the Supreme Court of Canada ruling said the circumstances of the police entry into the backyard effected a detention that was both immediate and arbitrary.

“This was serious Charter  -infringing police misconduct, with a correspondingly high impact on Mr. Le’s protected interests. Indeed, it was precisely this sort of police conduct that the Charter  was intended to abolish. On balance, the admission of the evidence would, in our view, bring the administration of justice into disrepute. We would, therefore, allow the appeal, exclude the evidence seized from Mr. Le, set aside his convictions and enter acquittals,” the court said in its judgment.

The court also noted that: "Living in a less affluent neighbourhood in no way detracts from the fact that a person’s residence, regardless of its appearance or its location, is a private and protected place.”

The decision also noted that, "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,” it said referencing Justice Michael Tulloch’s 2018 report on carding.

“Such a practice contributes to the continuing social exclusion of racial minorities, encourages a loss of trust in the fairness of our criminal justice system, and perpetuates criminalization.”

Barriffe says this decision affirms that there is not a two-tier system of Charter-protected privacy rights in our country. Police, therefore, will be considered to have engaged in an arbitrary detention (in violation of s. 9 of the Charter), if, without a valid reason, warrant or consent, they engage in carding by entering on to the private property of a resident in a racialized, high-crime, low-income neighbourhood while the resident is doing nothing illegal or suspicious.”

 He said it also affirms that where the police obtain incriminating evidence from an individual in these circumstances, the Court should order that this evidence be excluded because the police obtained the evidence through a violation of the individual's rights.

“In other words, the case indicates that evidence obtained through the violation of individuals' right to be free from arbitrary detention, cannot be accepted by the court, because accepting such tainted evidence would significantly harm the reputation of the courts and court process in the eyes and minds of the general Canadian public. Because of this, the SCC [Supreme Court of Canada] in this case excluded the incriminating evidence found on the accused, set aside the individual's conviction at lower levels of court, and acquitted the individual of the charges laid against him.”

UARR congratulated Emily Lam and Samara Secter who represented the applicant, Tom Le, and the hard work and skilled advocacy of all the interveners and their counsel.

[This story has been published in the North American Weekly Gleaner, June 27-July 3, 2019.]