SCC Excludes Evidence Obtained Through Unlawful Police Detention in R v Le


This morning, the Supreme Court of Canada released its decision in R v Le,[1] an important victory in upholding limits on lawful police conduct and emphasizing the ways race changes perceptions of interactions with the police.

In this case, police officers patrolling a Toronto neighbourhood noticed 5 racialized young men in the backyard of a housing complex, and entered the backyard without warning, consent, or a warrant.[2] They began questioning the men, asked for identification, and instructed the men to keep their hands where the officers could see them. The appellant, Tom Le, said he did not have identification, and when the police asked him about the contents of his satchel, he attempted to run from the officers and was found to have a firearm and drugs in his possession.[3] He sought to have these excluded from evidence at trial, on the basis of a violation of his section 8 and 9 Charter rights—to be free from unreasonable search and seizure, and arbitrary detention. At trial, the judge found no Charter infringement and so refused to exclude the evidence, and on appeal, Mr. Le’s conviction was upheld. However, at the SCC, his convictions were overturned, and he was acquitted.

The Supreme Court’s decision focused largely on the concept of unlawful detention, and emphasized the perception of a reasonable person over the intentions of the police officers in making a finding of detention—determining whether a reasonable person would have perceived that he was free to leave the situation and not comply with police orders. In making this determination, the SCC noted that “the reasonable person whose standpoint is determinative and whose mind is sought to be read is one who stands in the accused’s shoes—that is, one who is imbued with the experiences that accompany the accused’s particular circumstances.”[4] They found that “such a reasonable person would…conclude that there was a detention from the moment the officers entered the backyard and started asking questions.”[5]

The SCC highlighted a multitude of factors that led to a finding of detention, including the age, race, and stature of Mr. Le, and the ways the police asserted control over the situation, issuing orders to the young men, asking for identification, and demanding they kept their hands visible.[6] Despite the respondent’s argument that the police were acting “cordially” towards the young men, the SCC noted that that “[t]he nicest of hellos could not mask the fact that three persons entering onto this private property were uniformed officers acting without permission, consent, or legal authorization.”[7] Further, the SCC rejected the respondent’s argument that Mr. Le was able to walk away from the police, and was thus not being detained; given that the interaction was taking place on private property, they ask: “to where, precisely, was Mr. Le expected to “walk away?”[8]

The SCC paid particular attention to the ways that race and socioeconomic status impacted the encounter between Mr. Le and the police. They highlight recent reports on racial profiling and relationships between the police and racialized people in Canada, noting that this forms the “social context” in which the police’s actions must be assessed.[9] In considering the impact of the race of Mr. Le and the other men in the backyard on their perception of the situation, the SCC writes that “[w]hen 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.”[10] Further, noting that the neighbourhood in question was racialized and low-income, they quote Justice Lauwers’ dissent at the Ontario Court of Appeal, who wrote that “it was unlikely that the police officers would have ‘brazenly entered a private backyard and demanded to know what its occupants were up to in a more affluent and less racialized community.”[11]

Consequently, the SCC found that Mr. Le was being detained from the moment the police entered the backyard, because a reasonable person in his shoes would not have understood himself to be free to leave. Because the detention was not grounded in legal authority, it was therefore unlawful and arbitrary, in violation of Mr. Le’s section 9 Charter rights. As a result, the SCC held that it would “bring the administration of justice into disrepute” to admit the evidence obtained because of this unlawful detention, so the firearm and drugs were excluded from evidence, and Mr. Le was acquitted of his charges.

This decision provides an important and timely reminder of the limits on lawful police conduct, and on the ways in which interactions with the police are shaped by race and socioeconomic status, among other factors. While Mr. Le may have been legally free to go when being questioned by the police, as a young racialized man being interrogated by the police on private property, he likely would not have perceived himself to be free to leave the situation. By going into a private backyard in which there was no evidence of wrongdoing, and interrogating five racialized young men, asking for their identification and instructing them to keep their hands visible, the police officers in this case effectively placed them into detention—as a reasonable person in their shoes would not have understood themselves to be free to go.

This blog post was written by a CCLA summer law volunteer. Views expressed do not necessarily reflect the views of the CCLA.

[1] 2019 SCC 34

[2] Ibid at para 1.

[3] Ibid at para 2.

[4] Ibid at para 121

[5] Ibid.

[6] Ibid at para 106 , 122-123.

[7] Ibid at para 47.

[8] Ibid at para 52.

[9] Ibid at para 97.

[10] Ibid.

[11] Ibid at para 59.

Photo by: GTA Emergency_Photography