Liberty is at the heart of a free and democratic society.

In R. v. Le the Supreme Court of Canada excluded a firearm and drugs from evidence as a result of a breach of Mr. Le’s s. 9 Charter right to be free from arbitrary detention. This right is meant to protect individual liberty against unjustified state interference. Adetention 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.

The case tackled a number of issues. The focus here will be on policing racial minorities.

The facts of the case provide the context for this analysis. Three police officers noticed four Black men and one Asian man, by all appearances doing nothing wrong, in the backyard of a townhouse at a Toronto housing co-operative. The backyard was small and was enclosed by a waist-high fence. Without a warrant, or consent two officers entered the backyard and immediately questioned the young men while a third officer patrolled the perimeter of the property, stepped over the fence and yelled at one young man to keep his hands where the officer could see them. Mr. Le was one of these men. Police demanded that he produce ID. They also asked him what was in the satchel he was carrying. At that point, Mr. Le fled, was pursued and arrested.

Members of racial minorities have disproportionate levels of contact with the police and the criminal justice system in Canada.

The court found this case was an example of “carding”. This common police practice of asking individuals who they are and demanding proof of their identities for no apparent reason has been controversial for some time given concerns about the potential for discriminatory use of the practice.

The court explained:

The impact of the over-policing of racial minorities and the carding of individuals within those communities without any reasonable suspicion of criminal activity is more than an inconvenience. Carding takes a toll on a person’s physical and mental health. It impacts their ability to pursue employment and education opportunities. Such a practice contributes to the continuing social exclusion of racial minorities, encourages a loss of trust in the fairness of our criminal justice system, and perpetuates criminalization.

The court also addressed the fact that this event took place in an area of Toronto known to have a high rate of violent crime. The court concluded 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 community. Living in a less affluent neighbourhood in no way detracts from the fact that a person’s residence, regardless of its appearance or its location, is a private and protected place.

The evidence was excluded given the serious nature of the breach. To those who would question the court excluding a gun and drugs from the case, the court explained that the result was the direct product of the manner in which the police chose to conduct themselves — and not of an indifference on the part of the court towards violence, drugs, or community safety.

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