Supreme Court of Canada to Pronounce on Reasonable Expectations of Privacy


On October 12th 2018, the Supreme Court of Canada, through their hearing of an Ontario case Tom Le v. Her Majesty The Queen, was asked to consider what degree of reasonable expectation of privacy is to be expected in a friend’s backyard.

In 2012, Mr. Le was visiting friends in a fenced backyard when Officers representing the Toronto Police Department entered the backyard to question the young men regarding a dangerous man they were searching for. The officers then began to ask Mr. Le and his friends more personal questions. They told one young man to keep his hands in front of him and requested identification from them all. When Mr. Le was questioned on the contents of his bag, he attempted to flee the scene. Mr. Le’s attempt was left unsuccessful, an officer caught up to him, tackled him and searched his bag to find a loaded gun and cocaine.

Some additional facts which are crucial to the understanding of this case are that the parties questioned were young racialized men, Mr. Le was Asian and his friends were Black. Additionally, the backyard in question was located in the Atkinson Housing Co-operative, a subsidized housing complex in Toronto. Many suggest that these facts highlight an underlying issue of this case: are Charter rights applied just as carefully to marginalized groups, such as these young racialized men in a social housing context, as they would be to a group of non-racialized youth in a more affluent neighbourhood?

At the Supreme Court hearing, Mr. Le’s lawyers along with several intervenors, including the Canadian Civil Liberties Association, raised concerns relating to community policing and the practice’s effect on minority groups. One of the intervenors, Faisal Mirza, representing the Muslim Canadian Lawyers Association, asked the court to “look at the bigger picture,” he said “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.’” This is in reference to the way section 8 and 9 of the Charter were being applied in the case at hand.

The respondents, the Ontario Attorney-General’s department, offered a different angle to the issue. They said that “the race of the Appellant and his friends had no bearing on the police entry into the backyard.” Instead, they argued that the evidence should be admitted under section 24(2) of the Charter because the Charter-infringing state conduct was not serious, the impact on the Appellant’s Charter-protected rights was minimal and society has an interest in the adjudication of the case on its merits.

The Supreme Court of Canada’s eventual ruling on this case could expand the current discussion on the disproportionate bearing on racialized and marginalized communities of police intrusions on privacy, and on the right to be free from arbitrary detention. The outcome of this case may change the future discourse regarding community policing of minority groups. More broadly, the decision of this case will provide clarification on the extent to which the Charter protects against police intrusions on property where one may believe they benefit from privacy.

This blog post was written by a CCLA-PBSC RightsWatch student. Views expressed do not necessarily reflect the views of the CCLA or PBSC.