Pubdate: Mon, 29 Jan 2018
Source: Toronto Star (CN ON)
Copyright: 2018 The Toronto Star
Author: Jacques Gallant
Page: GT1


Dissenting opinion found charter rights were violated during 'fishing

A senior Ontario judge has called out Toronto police officers who
arrested a man on gun and drug charges for "casually intimidating and
oppressive misconduct," and wondered if their actions would have been
different in a whiter and wealthier neighbourhood.

The criticism came in a dissenting opinion from Ontario Court of
Appeal Justice Peter Lauwers, who recently disagreed with his two
colleagues on a panel hearing the appeal of Tom Le, convicted in 2014
of firearm and drug-related offences and sentenced to five years in

Lauwers' colleagues - Justices David Doherty and David Brown - upheld
Le's convictions. The split decision means Le has a right to appeal to
the Supreme Court of Canada without first having to seek permission.

"We're seriously considering an appeal to the Supreme Court," said his
lawyer, Emily Lam.

Le, 20 years old at the time, was arrested carrying a fully loaded,
semi-automatic Ruger pistol, cocaine and "considerable cash," the
Appeal Court said.

He and friends had been sitting in the townhouse backyard of another
friend at the Atkinson Housing Co-operative in Alexandra Park.

Aside from Le, who is Asian, the other four men are Black, Lauwers
noted in his dissent.

Three police officers in the area that night were looking for two
wanted individuals known to be involved in violent crimes. A security
guard for the housing complex said one of the wanted men hung around
behind the home where Le and his friends were spending time that night.

"The backyard was surrounded by a waist-high wooden fence. There was
an opening in the fence where the walkway was. There was no gate,"
Doherty wrote for the majority.

"The officers saw five young men, once of whom was the appellant,
sitting in the backyard talking. According to the police, the young
men were simply talking and not doing anything wrong. The officers did
not recognize any of the young men."

Two of the officers walked through the gateway without asking
permission, with one of them addressing the young men by asking, "How
are you guys doing?" Doherty wrote, and asked if any of them lived in
the townhouse. When one of the men said he lived there with his
mother, an officer asked for identification, and Le was soon asked to
show ID as well.

When an officer became concerned Le might have a weapon in his bag and
asked what was in it, Le fled but was soon apprehended.

Doherty concluded that Le's right to be free from unlawful search and
seizure had not been violated, saying he had no reasonable expectation
of privacy because as an invited guest at the house, he could not
legally prevent the police from accessing the property.

In his 29-page dissent, Lauwers concluded that several of Le's charter
rights had been violated and the evidence should have been tossed as a

"Perhaps the officers were emboldened by the sense they were doing the
right thing in trying to root out criminality in the community. They
seem to have assumed the young men in the backyard were up to no good
and decided to confront them suddenly," Lauwers wrote.

"I doubt that the police would have brazenly entered a private
backyard and demanded to know what its occupants were up to in a more
affluent and less racialized community."

He concluded the police entry "was an unlawful trespass and this
tainted everything that followed," noting the officers did not have
the townhouse occupant's consent to enter the backyard. He called the
entry no more than a "fishing expedition."

"From the unlawful entry flow the arbitrary detention, the flight, the
arrest, the search and the finding of the evidence - the gun, the
drugs and the money. The intimidating and oppressive police entry
operated to arbitrarily detain those present in the backyard including
the appellant," Lauwers wrote.

"The kind of casually intimidating and oppressive misconduct involved
in the unlawful police entry into the backyard must be condemned by
the court."

One of the officers had testified at trial they were asking the men
questions to investigate whether they were trespassing, but Lauwers
wrote that "there was no trespassing complaint to which the police
were responding."

The judge found Le had been arbitrarily detained by the police when
they arrived on the property.

"The police were asking pointed questions. It was not a casual
conversation. This was not an atmosphere where the young men had any
freedom of movement," Lauwers wrote.

"The appellant says this created an atmosphere of detention. I agree.
The suggestion that the appellant was free to leave simply has no
reality to it . . . The appellant's young age, minority status, and
his comparatively small physical stature also favour a finding of
psychological detention by police upon their entry in the backyard."

Lauwers found the charter breaches to be so significant that he would
have excluded the evidence and entered acquittals for Le.
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