The Supreme Court of Canada steps up for racialized accused persons

Updated: Oct 31, 2019

The SCC found that the accused in this case was arbitrarily detained, in part based on how he, as a racialized young man, would have interpreted his interaction with police. His conviction was set aside on appeal, and he was acquitted.

SCC, in Ottawa
Supreme Court of Canada

R. v. Le, 2019 SCC 34

Mr. Le and several other young men were together in a backyard of a townhouse in Toronto. Police officers entered the backyard and began questioning the men, they also directed them to keep their hands where they could be seen. Mr. Le ran, after an officer asked him what was in a bag he was carrying. Mr. Le was found to have a gun, drugs, and cash.

The trial judge found all of the evidence admissible, in spite of a challenge based on arbitrary detention.

The Supreme Court of Canada interpreted the situation quite differently from the trial judge, and showed a real willingness to overturn findings the trial judge had made. This shows that, in the right circumstances, our highest court will step in rather than defer to a trial judge's view of the facts. This may open the door for appeals that were previously seen as unwinnable, because of facts found at trial.

Our Supreme Court of Canada also made use of the larger social context, and looked at the police action through the lens of the racialized young men the police were actually dealing with. To quote:

" An important consideration when assessing when a detention occurred is that Mr. Le is a member of a racialized community in Canada. Binnie J. in Grant found that “visible minorities who may, because of their background and experience, feel especially unable to disregard police directions, and feel that assertion of their right to walk away will itself be taken as evasive” ((per Binnie J., concurring); see also, Therens, at p. 644 (per Le Dain J, dissenting) on whether citizens truly have a “choice” to obey the police’s commands)."

This is an important protection for communities that are often disproportionately impacted by "street checks" and other random police stops. Going forward, the Supreme Court of Canada has made it clear that the social context racialized people experience must form part of the analysis in looking at whether the police have arbitrarily detained them. In this case, it made a real difference to Mr. Le.

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