By: Adam Newman, associate
“Over 250 years ago, William Pitt (the elder), speaking in the House of Commons, described how “[t]he poorest man may in his cottage bid defiance to all the forces of the crown. It may be frail — its roof may shake — the wind may blow through it — the storm may enter — the rain may enter — but the king of England cannot enter! — all his force dares not cross the threshold of the ruined tenement” (house of commons, speech on the excise bill (march 1763), quoted in Lord Brougham, historical sketches of statesmen who flourished in the time of George III (1855), vol. I, at p. 42)” (R v Le, 2019 SCC 34 at Para 59)
The quote above describes the fact that the entering of a police officer into someone’s home- or a backyard in the case of R v Le – is not any more justifiable simply because that person lives in a poor neighbourhood or has a run-down house. Sentiments like these are found throughout the recent decision of the majority in R v Le released on May 31, 2019. The decision of the majority highlights the importance of being sensitive to the rights of individuals within their socio-economic context.
More specifically, the decision deals with the Section 9 of the Canadian Charter of Rights and Freedoms (the “Charter”) right of individuals and the question of when a detention arises (Section 9 states: “Everyone has the right not to be arbitrarily detained or imprisoned”). The majority outlines a clear test for this:
- When one is legally compelled to comply with a direction or demand of the police; or
- When a person is not compelled legally to comply with a police 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.
The case at bar dealt with the second criteria for a detention, as there was no legal authority for police detention through common law or statute. As a reminder the common law power to detain for investigative purposes requires the police to have reasonable grounds to suspect, given the totality of the circumstances, a clear nexus between the individual and a recent or still unfolding crime. Importantly, the presence of the accused in a high crime area cannot in itself be a basis for detention.
To determine whether the second criteria is fulfilled the court looks at three non-exhaustive factors already outlined by the case of R v Grant:
- The circumstances giving rise to the encounter, as they would reasonably be perceived by the individual;
- The nature of the police conduct;
- A reasonable person imbued with the experiences that accompany the accused’s particular circumstances.
The majority in Le states at paragraph 73, referring to the decision of R v Grant:
“by expressly including the race of the accused as a potentially relevant consideration, this court acknowledged that, based on distinct experiences and particular knowledge, various groups of people may have their own history with law enforcement and that this experience and knowledge could bear on whether and when a detention has reasonably occurred. Thus, to truly engage in the “realistic appraisal of the entire interaction”, as required in grant (at para. 32), 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.”
The majority is very clear that this is an objective assessment. The majority states that since this assessment is objective, it must be looked at from the perspective of a reasonable person in the shoes of the accused. Even more importantly, that a reasonable person is aware of race relations in Canada, it doesn’t matter whether the accused themselves are.
The majority then goes on to consider evidence about race relations in Canada:
“ overall, the OHRC (Ontario Human Rights Commission) expressed serious concerns. The study revealed that “black people are much more likely to have force used against them by the tps (toronto police service) that results in serious injury or death” and between 2013 and 2017, a black person in toronto was nearly 20 times more likely than a white person to be involved in a police shooting that resulted in civilian death (p. 19). The ohrc report reveals recurring themes: a lack of legal basis for police stopping, questioning or detaining black people in the first place; inappropriate or unjustified searches during encounters; and unnecessary charges or arrests (pp. 21, 26 and 37). The report reveals that many had experiences that have “contributed to feelings of fear/trauma, humiliation, lack of trust and expectations of negative police treatment” (p. 25).”
The majority also found that the more experiences an accused has with the police does not mean that the accused has more knowledge of how a police encounter should occur:
“ 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. Indeed, in our view, it is more reasonable to anticipate that frequency of police encounters will typically foster more, not less, “psychological
compulsion, in the form of a reasonable perception of suspension of freedom of choice” (Therens, at p. 644). individuals who are frequently exposed to forced interactions with the police more readily submit to police demands in order to move on with their daily lives because of a sense of “learned helplessness”
(M. E. P. Seligman, “Learned Helplessness” (1972), 23 annu. Rev. Med. 407, at p. 408, as discussed in r. V. Lavallee,  1 S.C.R. 852).”
The Charter was created with the hope of protecting every individual without regard to whether that individual is potentially guilty. In every case involving charter litigation, you should put yourself in the shoes of the accused; consider, what you as an individual would expect in your own backyard? The Charter is meant to protect everyone regardless of socioeconomic status, if not, it is of no value. The majority in this case has made it clear that an important consideration in determining whether there was a Charter violation is an objective assessment of the accused’s background, regardless of whether the accused themselves are aware of how that background effects them.