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SCC acknowledges asserting rights with police is a privilege

My family was forced to flee Iran, my country of birth, to avoid government persecution and police brutality. For many years after arriving in Canada, I felt anxiety and fear whenever I saw a police car pass by, even though I had had no police interaction in Canada. I did not become fully comfortable with the thought of police interactions until I became a lawyer and felt confident that I would be able to defend my own rights and the rights of other individuals.

Often, individuals fleeing their countries of birth have either witnessed or been personally subjected to police brutality, sometimes for things that we take for granted in Canada such as peacefully protesting or writing a blog post that may be critical of the government.

These individuals may be much more reluctant to challenge a police officer, ask any probative questions or assert their rights under the Charter when they come in contact with police in Canada. Their terrifying experiences with police and authority in their own countries often follow them in their new lives in Canada.

This situation is often exacerbated by the fact that racialized minorities are often treated negatively by law enforcement officers. For example, while a racialized individual may know and want to assert their rights under the Charter, they may be too afraid to do so due to fear of repercussions, including violence and even arrest. It is not unusual to see an individual charged with assault on a police officer when, in fact, it is the accused that has been assaulted. It is much easier for many racialized individuals, especially young men, to answer questions, produce identification and comply with any police orders than to stand up and assert their rights.

In R. v. Le, the Supreme Court of Canada recognized that racial minorities may have a different perception when it comes to their rights under the Charter, including the right to be free from unreasonable search and seizure (s. 8) and the right to be free from arbitrary detention (s. 9).

The case rested on arbitrary detention because the police entered a fenced backyard in a community housing building and interrogated and searched five racialized young men.

Police did not have a warrant or reasonable cause to enter the premises. The police officers started asking for names and identification, ordered one of the young men to put his hands where they could see them and asked Le what he had in his bag. Le made a run for it and was apprehended, his bag was searched and money, drugs and a gun were discovered.

Le was convicted at trial and his conviction was upheld by the Court of Appeal for Ontario, which agreed with the trial judge that if there was a s. 9 Charter breach, it was not serious enough to warrant the exclusion of evidence.

Thankfully, in its 170-page decision, not only did the SCC overturn the conviction, it also delved into an extensive discussion on how racial minorities may have a very different perception when it comes to knowing and asserting their rights under the Charter.

In its arbitrary detention analysis, the court found: “S. 9 detention analysis is thus contextual in nature and involves a wide-ranging inquiry. It takes into consideration the larger, historic and social context of race relations between the police and the various racial groups and individuals in our society.” 

The court touched on the fact that racialized people have more frequent contact with the police and they may be treated differently than other non-racialized people. The difference in the way racialize people are treated by the police is not lost on them and this, along with other aspects of their personal experiences, may inform the way they interact with the police. 

In my opinion, another factor that may greatly impact a racialized person’s interaction with the police is their country of birth and the role the government and the police play in the lives of ordinary citizens in that country. In Canada, where many racialized people have fled their countries of birth due to persecution or war, it is not unusual to find a fear of police and authority figures within these groups. The experiences of these minority groups will be very different from those of individuals born in Canada who are exposed to the rule of law from the very beginning and do not witness or experience mass police brutality or government-based persecution in their daily lives.

In Le, the court  touched on the economic status of an individual and how that may impact the person’s treatment by the police and their reaction to this treatment. The court stated:

“Placing the mode of entry aside, we agree with Lauwers J.a.’s observation that it is 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 and less racialized community.’”

A person’s economic status often impacts where they live and what resources are available to them. Living in less affluent neighbourhoods with higher crime rates often comes hand in hand with more policing in the neighbourhood. Combined with the fact that there may not be many resources available to inform these individuals of their rights under the law, this often leads to them acquiescing rather than demanding change.

The SCC’s in-depth discussion on how race may play a role in the individual’s perceptions with respect to police contact and Charter rights is a welcome reminder for law enforcement officers, defence lawyers, Crowns and the judiciary to take into account personal circumstances of individual including race and economic status when considering Charter-related issues.