R. v. Le 2019 SCC 34

https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/17804/index.do

R. v. Le: What are you rights when it comes to interaction with the police?

The Canadian Charter of rights and Freedoms guarantees protection from arbitrary detention and unreasonable search and seizure.

s. 9 Everyone has the right not to be arbitrarily detained or imprisoned.

In R. v. Le, the Supreme Court of Canada considered when is the person detained within the meaning of section 9, which police actions are arbitrary and unlawful, and which are justified in law.

When is the person detained?

The Court reminded us that a person is to be considered “detained” when an ordinary person in a similar situation would believe that they were not free to leave and were required to comply with the demands of the police.

The Court also spoke about the relationship between race and detention. The Court stated at paragraph 75,

At the detention stage of the analysis, the question is how a reasonable person of a similar racial background would perceive the interaction with the police. The focus is on how the combination of a racialized context and minority status would affect the perception of a reasonable person in the shoes of the accused as to whether they were free to leave or compelled to remain. The s. 9 detention analysis is thus contextual in nature and involves a wide ranging inquiry. It 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.

Facts of the case

The police observed five young males in the backyard talking. The backyard had a waist- high fence around it and a small entry point. The police entered the backyard and began to question the young men. At one point the police directed the men to keep their hands visible and requested identification.  One of those males was Tom Le, who was a member of a visible minority. The police directed Mr. Le to open the bag that he was carrying and to produce the contents of it for the officers’ immediate inspection. Mr. Le ran away and after a brief chase, he was arrested, and his bag was searched. In the bag, the officers found a gun, drugs, and cash. Mr. Le was charged accordingly.

The majority of the Supreme Court of Canada held that the officers’ conduct in this case was illegal – that the police arbitrarily detained Mr. Le when they entered the backyard and that the subsequent search was therefore also illegal.

What is arbitrary detention?

Detention is arbitrary when it is not authorized by statute and is not in pursuit of a lawful, investigative purpose. The Court defined an investigative purpose as follows,

reasonable grounds to suspect a clear nexus between the individual and a recent or still unfolding crime

Put simply, the police can only detain a person if they reasonably believe that the person has either just committed a crime or is in the process of committing one.

The Le case demonstrates the importance of section 9 of the Charter, the right not to be arbitrarily detained. The Court reaffirms that section 9 is intended to limit the state’s ability to impose intimidating and coercive pressures on citizens without adequate justification. The majority of the Court described the police as “trespassers” and their actions as “shocking” and said that their conduct in this case is exactly what the Charter was designed to protect against.

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About the author

I am one of the senior partners at Bytensky Shikhman, a criminal litigation firm in Toronto, Ontario, Canada. In my 25+ year career, I have conducted numerous trials and appeals before all levels of Court in Ontario, defending just about every type of charge in our criminal law. I am also an Adjunct Professor of Trial Advocacy at Osgoode Hall Law School and currently the Treasurer of the Criminal Lawyers' Association of Ontario. I am also an Adjunct Professor for Trial Advocacy at Osgoode Hall Law School, York University and a regular lecturer and placement supervisor for Osgoode's Intensive Programme in Criminal Law.

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