R. v. Le, 2019 SCC 34
Constitutional law — Charter of Rights — Arbitrary detention — Exclusion of evidence
On appeal from a judgment of the Ontario Court of Appeal (Doherty, Lauwers and Brown JJ.A.), 2018 ONCA 56, affirming a decision of Campbell J., 2014 ONSC 2033.
One evening, five young racialized men, 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 s. 24(2) of the Charter on the basis that the police had infringed his constitutional rights to be free from unreasonable search and seizure and from arbitrary detention, contrary to ss. 8 and 9 of the Charter. In convicting the accused, the trial judge held that he lacked standing to advance a s. 8 claim, 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.
Held (Wagner C.J. and Moldaver J. dissenting): The appeal should be allowed, the evidence excluded, the convictions set aside and acquittals entered.
Per Karakatsanis, Brown and Martin JJ.:
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 the accused’s protected interests. It was precisely this sort of police conduct that the Charter was intended to abolish. On balance, the admission of the evidence would bring the administration of justice into disrepute. Since the appeal can be disposed on the basis of ss. 9 and 24(2) of the Charter, there is no need to resolve the s. 8 issue.
The prohibition of arbitrary detention in s. 9 of the Charter is meant to protect individual liberty against unjustified state interference. It limits the state’s ability to impose intimidating and coercive pressure on citizens without adequate justification. Not every police‑citizen interaction is a detention within the meaning of s. 9; a detention requires significant physical or psychological restraint. Psychological detention by the police can arise in two ways: (1) the claimant is legally required to comply with a direction or demand by the police; or (2) a claimant is not under a legal obligation to comply with a direction or demand, but a reasonable person in the subject’s position would feel so obligated, and conclude that they were not free to go. Therefore, even absent a legal obligation to comply with a police demand or direction, and even absent physical restraint by the state, a detention exists in situations where a reasonable person in the accused’s shoes would feel obligated to comply with a police direction or demand and that they are not free to leave.
In determining the point of detention for the purposes of s. 9 of the Charter, it is essential to consider all of the circumstances of the police encounter. The Court in R. v. Grant, 2009 SCC 32,  2 S.C.R. 353, adopted three non‑exhaustive factors that can aid in the analysis. In the instant case, each of these factors support the conclusion that the accused’s detention began the moment the police entered the backyard and made contact with the young men.
The first factor — the circumstances giving rise to the encounter as they would reasonably be perceived by the individual — supports a finding of detention arising prior to the officer’s inquiry about the contents of the accused’s satchel. The conduct of the police exceeded the norms of community policing, there was no obvious cause for any police presence in the backyard, the police never expressly communicated to the young men why they were there, they immediately started questioning them, and the height of the fence allowed full interaction without entry. Therefore, a reasonable person would not perceive the police entry into the backyard as merely assisting in meeting needs or maintaining basic order.
The second factor — the nature of the police conduct — supports the conclusion that a detention arose as soon as the police officers entered the backyard and started asking questions. Many considerations influence the analysis under this factor. When the police enter a private residence as trespassers, as they did here, it both colours what happens subsequently and strongly supports a finding of detention at that point in time. The actions of the police and the language used may show that the police are immediately taking control of a situation. Here, the contemporaneous actions of the police and the language employed illustrate they were exerting dominion over the individuals in the backyard from the time of entry. There was physical proximity and the officers positioned themselves in a way to question specific young men apart from the others, in a manner to block the exit. Furthermore, with respect to the place where the interaction occurred and the mode of entry, the nature of any police intrusion into a home or backyard is reasonably experienced as more forceful, coercive and threatening than when similar state action occurs in public. Coming over the fence to enter a private residence conveys a show of force. Living in a less affluent neighbourhood in no way detracts from the fact that a person’s residence is a private and protected place. The reputation of a particular community or the frequency of police contact with its residents does not in any way license police to enter a private residence more readily or intrusively than they would in a community with higher fences or lower rates of crime. Here, there was a tactical element to the encounter and the mode of entry involving three uniformed officers suddenly occupying a backyard and taking control over the people in it late at night would be seen as coercive and intimidating by a reasonable person. The police conduct towards others would also likely have an impact on how a reasonable person in the accused’s shoes would perceive the unfolding situation. Witnessing a repeated sequence of command and compliance would lead a reasonable person to believe that they are not free to leave and that even their physical movements are subject to police control. In addition, the overall duration of an encounter may contribute to the conclusion that a detention occurred, although a detention can occur within a matter of seconds, depending on the circumstances. What the accused in this case saw occurring to others likely increased the perception and reality of coercion, as the others simply did what the police told them to do. Although the interaction lasted less than a minute, the impact of the police conduct in that short space of time would lead any reasonable person to conclude that it was necessary to comply with police directions and commands, and that it was impossible to leave or walk away without the permission of the police once they entered the backyard.
With respect to the third factor — the particular characteristics or circumstances of the individual —, a reasonable person imbued with the experiences that accompany the accused’s particular circumstances would conclude that there was a detention from the moment the officers entered the backyard and started asking questions. Courts must appreciate that individuals in some communities may have different experiences and relationships with police than others and such may impact upon their reasonable perceptions of whether and when they are being detained. At the detention stage, the analysis takes into consideration the larger, historic and social context of race relations between the police and the various racial groups and individuals in our society. The reasonable person in the shoes of the accused is presumed to be aware of this broader racial context. Evidence about race relations that may inform whether there has been a detention under s. 9, like all social context evidence, can be proved in legal proceedings by direct evidence, admissions, or by the taking of judicial notice. Because the focus is on how the combination of a racialized context and minority status would affect the perceptions of a reasonable person in the shoes of the accused and not on what motivated the officers to act as they did, a finding that there has been no racial profiling has therefore little bearing. While the accused’s level of sophistication could also bear on the timing of a detention, merely because an individual has had repeated interactions with the police does not mean that the individual has acquired a level of sophistication in dealing with the police. A reasonable person who has been stopped by the police on multiple prior occasions would more likely perceive that it is necessary to simply submit to police demands. What a reasonable person may perceive may also be influenced by age and the knowledge, life experience and discernment associated with that age group. The focus of the s. 9 analysis should not be on what was in the accused’s mind at a particular moment in time, but rather on how the police behaved and, considering the totality of the circumstances, how such behavior would be reasonably perceived by a person imbued with the experiences that accompany the accused’s particular circumstances. In this case, 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. Research studies have established that racial minorities are both treated differently by the police and that such differential treatment does not go unnoticed by them. We have arrived at a place where the research now shows disproportionate policing of racialized and low‑income communities. Indeed, it is in this larger social context that the police entry into the backyard and questioning of the accused 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.
Where a detention is established, a court must consider whether the detention is arbitrary. The detention must be authorized by law, the authorizing law must not be arbitrary, and the manner in which the detention is carried out must be reasonable. Since no statutory or common law power authorized the accused’s detention at the moment the police entered the backyard and made contact with the young men, it was an arbitrary detention that infringed the accused’s Charter right. First, the police were trespassers. The implied licence doctrine, which allows the police, or any member of the public, on legitimate business to proceed from the street to the door of a house so as to permit convenient communication with the occupant of the dwelling, does not apply to excuse the police presence in the backyard because even if communication was the officers’ purpose, it did not necessitate their entry onto private property. The police also had a subsidiary purpose — a speculative criminal investigation —, which exceeds the authorizing limits of the implied licence doctrine. Second, the police had no legal authority to detain the accused. No statute authorized the police officers to detain anyone in the backyard, and the common law power to detain for investigative purposes could not be invoked. The latter only allows the police to detain an individual for investigative purposes where, in the totality of circumstances, there are reasonable grounds to suspect a clear nexus between the individual and a recent or still unfolding crime. A suspect’s presence in a so‑called high crime area is not by itself a basis for detention and the mere presence of non‑suspects in an area frequented days or weeks earlier by a person of interest cannot furnish such a basis. The receipt of general information about contraband in relation to an address does not, without more specificity, give rise to reasonable suspicion in relation to recent or ongoing criminal activity.
Where evidence is obtained in a manner that infringes a Charter right or freedom, s. 24(2) provides that such evidence must be excluded if it is established that, having regard to all the circumstances, its admission would bring the administration of justice into disrepute. While the exclusion of evidence may provoke immediate criticism, the focus is on the overall repute of the justice system, viewed in the long term by a reasonable person, informed of all relevant circumstances and of the importance of Charter rights, and not on the impact of state misconduct upon the criminal trial. It is the sum, and not the average, of the seriousness of the Charter ‑infringing conduct and the impact of the breach on the Charter ‑protected interests of the accused that determines the pull towards exclusion. The more serious the state‑infringing conduct and the greater the impact on the Charter ‑protected interests, the stronger the case for exclusion. Where these inquiries, taken together, make a strong case for exclusion, society’s interest in an adjudication of the case on its merits will seldom if ever tip the balance in favour of admissibility.
When considering the first line of inquiry — the seriousness of the Charter ‑infringing conduct —, for state misconduct to be excused as a good faith (and, therefore, minor) infringement of Charter rights, the state must show that the police conducted themselves in a manner consistent with what they subjectively, reasonably and non‑negligently believed to be the law. Here, good faith cannot be ascribed to these police officers’ conduct. Their own evidence makes clear that they fully understood the limitations upon their ability to enter the backyard to investigate individuals. This was serious police misconduct and weighs heavily in favour of a finding that admission of the resulting evidence would bring the administration of justice into disrepute.
The second line of inquiry — the impact on the Charter ‑protected interests of the accused — entails asking whether and to what extent, in the totality of the circumstances, the Charter breach actually undermined the interests protected by the right infringed. Here, when weighed against the absence of justification to investigate the young men at all, the impact of this police misconduct is heightened considerably. The discovery of the evidence was only possible because of the serious s. 9 breach in this case. This line of inquiry also strongly favours a finding that admission of the evidence in this case would bring the administration of justice into disrepute.
The third line of inquiry — society’s interest in adjudication of the case on its merits — typically pulls toward inclusion of the evidence. Courts must be careful to dissociate themselves and their trial processes from the violation of longstanding constitutional norms reflected in the Court’s Charter jurisprudence that has emphasized the importance of individuals’ liberty interests. On balance, in this case, this line of inquiry provides support for admitting the highly reliable evidence.
In this case, in view of the application of the three Grant lines of inquiry, admission of the fruits of the police conduct would bring the administration of justice into disrepute, and as such, the evidence must be excluded.
Per Wagner C.J. and Moldaver J. (dissenting):
The appeal should be dismissed. While the appellant was arbitrarily detained, resulting in a breach of his s. 9 Charter rights, admission of the evidence would not bring the administration of justice into disrepute.
The fundamental principles that govern the nature and scope of appellate review include the principle that fact finding is reserved to trial courts. The threshold for interfering with a trial judge’s factual findings and findings of credibility is stringent. Appellate intervention is justified only where the trial judge has made a palpable and overriding error. Given that, before the Court, the appellant does not allege that any of the trial judge’s findings of fact were tainted by palpable and overriding error or were unreasonable and there is no challenge to the trial judge’s credibility assessment, the Court must perform its legal analysis based on the factual foundation laid by the trial judge. It would be inappropriate for the Court to substitute its own findings for those of the trial judge.
The police entry into the backyard was unlawful. The police were trespassers from the moment they set foot on the property, given that the implied licence doctrine could not apply in the present case. This doctrine, which allows police officers and other members of the public, on lawful business, to enter onto private property and approach the door of the residence in order to speak with the owner or occupier, could not apply for the sole reason that the police could readily make contact with the potential owner/occupier from outside the property. Nonetheless, the trial judge’s finding that the police had legitimate investigatory purposes for entering the backyard is entitled to deference. Even if the police were not justified in entering the backyard in order to investigate whether the young men were trespassers, two valid investigatory objectives remained: (1) to investigate whether any of the young men were a known suspect or knew the whereabouts of another known suspect; and (2) to investigate potential drug trafficking in relation to the property.
The appeal can be disposed of without finally deciding whether the unlawful entry by the police into the backyard resulted in a breach of the appellant’s s. 8 Charter rights. That said, it is doubtful that the appellant’s s. 8 argument could withstand scrutiny, as there is no compelling basis on which to conclude that his informational privacy interests were engaged to any significant degree, and the Court’s decisions in R. v. Edwards,  1 S.C.R. 128, and R. v. Belnavis,  3 S.C.R. 341, cast serious doubt on his territorial privacy argument. Even if it is assumed for the sake of argument that his s. 8 rights were breached, any such breach was both inadvertent and insignificant in terms of its impact, thereby making it inconsequential from a s. 24(2) perspective.
Section 9 of the Charter protects the right to be free from arbitrary detention or imprisonment. Detention under s. 9 refers to a suspension of the individual’s liberty interest by a significant physical or psychological restraint. Whether a psychological detention has occurred is determined objectively, having regard to all the circumstances. The onus is on the applicant to show that in the circumstances, he or she was effectively deprived of his or her liberty to choose whether to stay or leave. While the test is objective, the individual’s particular circumstances and perceptions at the time may be relevant in determining whether a reasonable person in the circumstances would perceive himself or herself as not being free to go. The factors in determining whether and when a psychological detention has occurred include the circumstances giving rise to the encounter as they would reasonably be perceived by the individual, the nature of the police conduct, and the particular characteristics or circumstances of the individual where relevant. The determination of whether and when a detention has occurred based on a trial judge’s underlying findings of fact is a question of law subject to the standard of correctness. In the present case, it is not disputed that a detention occurred; the question is one of timing.
Applying the relevant factors with a view to determining the point at which the appellant was detained, beginning with the circumstances giving rise to the encounter, the trial judge found that the police had at least two valid investigatory purposes; the police encounter in the backyard therefore took place in the context of a legitimate police investigation and the young men had no reason to believe otherwise. The trial judge’s findings make clear that this was not a fishing expedition, and it is not open to an appellate court to substitute its views for the views of the trial judge according to what the appellate court thinks the evidence establishes. The interaction began with a series of general inquiries, rather than an attempt by the police to single out any particular individual for focused investigation. This militates against the conclusion that the detention was immediate.
Turning to the nature of the police conduct, the following principles expressed by the majority are endorsed: if it can be shown that the police conduct at issue was aggressive, then that would be a significant factor in the analysis; police conduct towards third parties can influence how a reasonable person in the claimant’s shoes would perceive his or her own freedom of movement; the setting in which the police interaction takes place is a relevant consideration — in particular, a police intrusion into a private space may reasonably be perceived as communicating some measure of control over the occupants; the duration of the police encounter is a relevant consideration; and an unlawful police entry can generally be expected to have an intimidating effect and may therefore cause a reasonable person to be less inclined to believe he or she is free to walk away.
In this case, the trial judge was presented with two strikingly different accounts of what occurred on the night in question. He accepted the account provided by the police and rejected that of the appellant and his friends. Thus, on the trial judge’s findings, this was not a shakedown, an instance of racial profiling, or a mere fishing expedition. Rather, it was a legitimate investigation performed by the police, and there was no finding of bad faith. In concluding that the police were aggressive, that they were engaged in a fishing expedition, and that their conduct demonstrated that they were exerting dominion over the individuals in the backyard from the time of entry, the majority has recast the record in a manner that is inconsistent with the positive findings of fact that the trial judge made in favour of the police. It is not open to an appellate court to recharacterize police conduct based on its own appreciation of the evidence to arrive at its own view of how a reasonable person in the circumstances would perceive that conduct.
Turning to the particular characteristics and circumstances of the individual, there is agreement with the majority on a number of points, including the following: a person may experience a police interaction differently depending on his or her age, race, life experience, and other personal characteristics, and these factors should be taken into account in the s. 9 analysis; the judicially constructed reasonable person must reflect and respect racial diversity, as well as the broader state of relations between the police and various racial groups; credible reports, studies, and other materials on race relations may assist courts in understanding how racialized persons may experience police interactions differently, and while it is generally preferable that all relevant materials be placed before the trial judge and made the subject of submissions from the parties, courts may take judicial notice of such materials where the test set out in R. v. Spence, 2005 SCC 71,  3 S.C.R. 458, is met; and a young person of small physical stature like the appellant may reasonably perceive a greater power imbalance vis‑à‑vis the police, as compared to how a larger, more mature person might perceive the situation.
The appellant is an Asian‑Canadian man of slight build who was 20 years old at the time of the incident. The trial judge expressly anchored his analysis in the perspective of a reasonable person in the position of the appellant, and he took into account the visible minority status of the appellant and his friends. The appellant testified that he considered himself free to go until the police engaged him directly. The claimant’s own perception of whether and when he or she was detained is not determinative, but it may be a relevant consideration. Here, the appellant’s testimony suggests that a reasonable person in the circumstances would not have considered himself detained from the moment the police set foot in the backyard.
Finally, in determining the timing of the appellant’s detention, the Court’s decisions in R. v. Grant, 2009 SCC 32,  2 S.C.R. 353, and R. v. Suberu, 2009 SCC 33,  2 S.C.R. 460, make clear that as a general rule, only when the police move from general questioning to focussed interrogation will a detention result. General neighbourhood policing and preliminary or exploratory questioning are generally insufficient to effect a detention. In the case at hand, at the initial stage of the interaction, the police officers were simply orienting themselves to the situation and engaging in pre‑detention exploratory interaction. While it can be difficult to ascertain with any degree of certainty the point at which a psychological detention occurred, it could reasonably be said that the appellant was detained, at the earliest, when the third officer entered the backyard and directed one of the young men to keep his hands in front of him, an order which he complied with immediately. In all the circumstances, upon seeing this clear exercise of police authority and his friend’s immediate compliance, it is realistic to conclude that a reasonable person in the appellant’s circumstances would have considered himself effectively deprived of his liberty of choice, even though he did not consider himself to be detained at this point.
The detention in this case was arbitrary. At the moment when the appellant was detained, the police had not yet developed reasonable grounds to suspect he was armed — a prerequisite to a lawful investigative detention. This resulted in a breach of the appellant’s s. 9 Charter rights. However, the arbitrary detention was momentary, lasting mere seconds before the police developed reasonable grounds to suspect the appellant was armed, thereby transforming the arbitrary detention into a lawful one.
Since the conclusion on the Charter breach issues differs from that of the trial judge, a fresh s. 24(2) analysis must be undertaken, accepting the trial judge’s underlying factual findings absent any suggestion that they were tainted by a palpable and overriding error. The first line of inquiry to be considered is the seriousness of the Charterinfringing state conduct. This involves a consideration of whether admission of the evidence would send a message to the public that the courts, as institutions responsible for the administration of justice, effectively condone state deviation from the rule of law. The court must fix the police misconduct on a spectrum ranging from the minor and inadvertent to the wilful or reckless. As an appellate court, the Court cannot simply substitute its own view of the police conduct for that of the trial judge or recharacterize the evidence. Here, the trial judge concluded that there was no evidence suggesting that the officers were engaged in racial profiling. Nor were the police abusing their powers in any other manner. On the trial judge’s findings, it is clear that any breach of the appellant’s Charter rights was technical and inadvertent, and there was no finding of bad faith on the part of the police. Although the police trespassed, they did not do so wilfully or deliberately. Rather, the trespass was inadvertent and committed in the course of performing legitimate investigatory duties. The s. 9 breach was far from egregious. The seriousness of the Charter ‑infringing conduct falls on the low end of the spectrum. Admission of the evidence would not send the message that the justice system condones serious state misconduct.
The second line of inquiry focuses on the impact of the Charter breaches on the Charter ‑protected interests of the applicant. The impact of a Charter breach may range from fleeting and technical to profoundly intrusive. The more serious the impact, the greater the risk that admission of the evidence may signal to the public that Charter rights are of little avail, thereby bringing the administration of justice into disrepute. In addition, the discoverability of the evidence is a relevant consideration in assessing the impact on the individual’s Charter ‑protected interests. The impact of the s. 9 breach on the appellant’s liberty, dignity, bodily integrity, and autonomy was reduced in terms of its significance because the arbitrary detention was fleeting in duration, did not result in any physical detention, and did not involve any aggressive or demeaning conduct on the part of the police. On the other hand, with respect to the discoverability of the evidence, the s. 9 breach set in motion a series of events that led to the discovery of the evidence. This is a consideration that must be weighed in the balance. However, that factor alone cannot be allowed to overwhelm the analysis and require near‑automatic exclusion of the evidence. Moreover, the impact on the appellant’s Charter ‑protected interests should be considered in light of the fact that no evidence was obtained during the momentary arbitrary detention; rather, it was discovered only after the police had the grounds needed to perform an investigative detention, and only after the appellant decided to run from the police. In light of all the circumstances, the impact on the appellant’s Charter ‑protected interests was not so great as to clearly overwhelm competing considerations.
The third line of inquiry considers society’s interest in the adjudication of the case on its merits. Society generally expects that a criminal allegation will be adjudicated on its merits, and it has a collective interest in ensuring that those who transgress the law are brought to trial and dealt with according to the law. The third Grant line of inquiry asks whether the truth‑seeking function of the criminal trial process would be better served by admission of the evidence, or by its exclusion. The reliability of the evidence, its importance to the Crown’s case, and the seriousness of the offences are all factors to be considered. Here, society’s interest in the adjudication of the case on its merits is exceedingly high. The fact that a fully loaded, semi‑automatic handgun is implicated is no minor consideration. It is essential to both the rule of law and the attainment of the rights enshrined in the Charter that Canadians feel safe and secure in their communities. The reality that many Canadians live under the constant threat of gun violence and the evils of drug trafficking and look to the police for protection must not be lost in the s. 24(2) analysis. The evidence in this case is real, reliable, and essential evidence of very serious criminal offences. Exclusion of the evidence would gut the Crown’s case. This line of inquiry pulls strongly in favour of admission.
In this case, considering all the circumstances, it is clear what must be done to maintain the good repute of the administration of justice: the evidence must be admitted. Given that the seriousness of the Charter ‑infringing conduct falls on the low end of the spectrum and society’s interest in an adjudication on the merits is exceedingly high, the impact on the appellant’s Charter ‑protected interests is insufficient to tip the scale in favour of exclusion. The majority’s approach does nothing to recognize that the three police officers, in the course of carrying out a legitimate investigation, put their lives on the line for the good of the community. The chambered bullet in the appellant’s semi‑automatic handgun could have ended the life of an innocent bystander or one of the police officers as they struggled to wrest control of the bag containing the weapon from the appellant. Reasonable and well‑informed members of the public would regard a decision to exclude the evidence as intolerable.
Citation: R. v. Le, 2019 SCC 34
SCC File No. : 37971
Reasons for Judgment: Brown and Martin JJ. (Karakatsanis J. concurring)
Dissenting Reasons: Moldaver J. (Wagner C.J. concurring)