Supreme Court asked to tell po­lice to re­spect pri­vacy in pub­lic hous­ing

The Globe and Mail Metro (Ontario Edition) - - NEWS - SEAN FINE

The Supreme Court of Canada is be­ing asked to tell po­lice to re­spect the pri­vacy rights of mi­nori­ties in poor neigh­bour­hoods in a case in which three Toronto of­fi­cers en­tered a pub­lic-hous­ing back­yard with­out per­mis­sion and found a man with a gun and co­caine.

Tom Le, who is Asian-Cana­dian, was chat­ting with four black youths when the of­fi­cers en­tered the town­house yard on a spring day in 2012 and asked them ques­tions. They said they were look­ing for two dan­ger­ous men.

They also wanted to know if the young peo­ple were trespassing, and asked them for iden­ti­fi­ca­tion. They told one young man to keep his hands in front of him.

Mr. Le, who was car­ry­ing a bag, bolted when po­lice asked to look at it. Of­fi­cers tack­led him and found a loaded gun and co­caine on him.

Mr. Le was con­victed of gun and drug of­fences at trial, and the On­tario Court of Ap­peal up­held his con­vic­tion in a 2-1 rul­ing, say­ing that even if the po­lice had no le­gal right to en­ter the back­yard, Mr. Le had no “rea­son­able ex­pec­ta­tion of pri­vacy” as a guest, and his rights there­fore were not vi­o­lated. He ap­pealed to the Supreme Court, which heard the case on Fri­day morn­ing.

To Mr. Le’s lawyers, and sev­eral in­ter­venors, the case raises ques­tions about po­lice con­duct to­ward mi­nori­ties, while to the On­tario gov­ern­ment’s prose­cu­tors, it is about pro­tect­ing com­mu­ni­ties.

“We ask you to look at the big­ger pic­ture here,” Faisal Mirza, rep­re­sent­ing the Mus­lim Cana­dian Lawyers As­so­ci­a­tion, an in­ter­venor group, told the judges. “It deals with a lot of in­no­cent peo­ple who live in these pri­or­ity neigh­bour­hoods. Who feel they can’t just say, ‘ We want to walk away and be left alone.’ ”

That led to a re­veal­ing ex­change with Jus­tice Michael Mol­daver, the court’s lead­ing author­ity on crim­i­nal law. Jus­tice Mol­daver’s ques­tions and com­ments sug­gested he felt the po­lice were trespassing.

“The fact that they tres­passed, I give you,” he said at one point to

Emily Lam, one of Mr. Le’s lawyers. At the same time, he was skep­ti­cal that Mr. Le’s con­sti­tu­tional pri­vacy rights were in­fringed.

When Mr. Mirza said po­lice do not walk into the back­yards of af­flu­ent lawyers and judges, Jus­tice

Mol­daver replied that if they did, they would prob­a­bly be in­vited in for a drink.

Out­side the court­room, Mr.

Mirza said: “It’s in­ter­est­ing that he starts from the premise that it would be in­nocu­ous.”

He called the Le case the bread-and-but­ter of crim­i­nal law for adults and youth in ur­ban cen­tres such as Toronto.

“I think this case has a lot of peo­ple’s at­ten­tion, in the le­gal com­mu­nity par­tic­u­larly,” Mr. Mirza said. “Many of us lived in those town­houses.

“We can al­most see our­selves in those back­yards. Our con­cern is all the peo­ple who never come be­fore the court and how they’re treated.”

The On­tario At­tor­ney-Gen­eral’s de­part­ment of­fered a dif­fer­ent view.

“Po­lice ap­proach Cana­di­ans at their homes and ask ques­tions ev­ery day for a wide va­ri­ety of rea­sons,” it said in its writ­ten le­gal ar­gu­ment filed with the court.

Sa­mara Secter, rep­re­sent­ing Mr. Le, summed up her view of the pros­e­cu­tion’s po­si­tion: “The out­come of that po­si­tion is that we should al­ways ex­pect the state wher­ever we go,” she told the five judges who heard the case. She called that “odi­ous.”

Out­side the court­room, Ms. Lam said that if Mr. Le suc­ceeds in his case, the court would rec­og­nize that there is a dis­pro­por­tion­ate im­pact on racial­ized and marginal­ized com­mu­ni­ties of po­lice in­tru­sions on pri­vacy, and on the right to be free from ar­bi­trary de­ten­tion.

We ask you to look at the big­ger pic­ture here. It deals with a lot of in­no­cent peo­ple who live in these pri­or­ity neigh­bour­hoods. Who feel they can’t just say, ‘We want to walk away and be left alone.’ FAISAL MIRZA REP­RE­SEN­TA­TIVE OF THE MUS­LIM CANA­DIAN LAWYERS AS­SO­CI­A­TION

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