Upholding a Drug Trafficker's Charter Rights

"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."
"[Given that three police officers entered a small private backyard without a warrant or permission to question five racial minorities], these young men would have felt compelled to remain, answer and comply."
Supreme Court of Canada

"[Reasonable and well-intentioned members of the public would consider a decision to exclude the evidence and exonerate someone] who was prepared to reach for a loaded weapon during a violent struggle with the police as not merely alarming, but intolerable."
Supreme Court Justice Michael Moldaver, dissenting opinion

A view shows the Supreme Court of Canada in Ottawa. On Friday the high court ruled that Tom Le's charter rights were violated. (Chris Wattie/Reuters)

A majority of the Supreme Court of Canada claimed that actions of police in May of 2012 one night amounted to arbitrary detention, representing a serious violation of 20-year-old Tom Le's -- a resident of a Toronto housing complex considered to be a "problem address" where drug trafficking was known to occur -- Charter rights. The Charter of Rights and Freedoms, they pointed out, protects people like Mr. Le from 'harassment' of this type.

Police, they concluded, had no reasonable cause to enter the backyard where Tom Le, an Asian-Canadian, was standing in conversation with four young black men late at night. The police officers had been informed by security guards at the complex who patrol the housing co-operative that the place gave them concerns about drug trafficking in the rear yard where a suspect had been recently seen.

Two officers entered the yard and began asking questions, requesting identification, a process known as 'carding', which has come under question for appearing to disproportionately target young men of racial minority backgrounds. That police intuition, allied with the very reality that it is young men of racial minority backgrounds that have a tendency to engage in illegal pursuits like drug trafficking disproportionate to their numbers in society, appears to be of little moment to this reasoning.

A third officer patrolled the perimeter of the property, stepped over a low fence, and advised a man to keep his hands visible. While another officer questioned Mr. Le, demanding his ID, he asked about a satchel the man had slung across his body. Mr. Le failed to respond to the query over the contents of the satchel, choosing to flee. He was tackled and apprehended a short distance away.

His bag was scrutinized and seen to contain a loaded handgun and a large amount of cash. He was arrested, taken to the nearest police station, where he then handed police 13 grams of cocaine in his possession. At trial, Mr. Le pleaded not guilty, arguing the seized evidence should be excluded, since police had violated his constitutional rights of freedom from arbitrary detention and unreasonable search.

When the trial judge found for the police, that they had legally detained the defendant, Mr. Le went on to challenge his conviction in the Ontario Court of Appeal which upheld the trial judge's finding of guilt. From there, he took his case to the Supreme Court. This, of course, is the very same Canada that bemoans the trafficking of drugs, cut with fentanyl and carfentanil that is increasingly taking the lives of young Canadians from drug overdoses.

Majority rules. Of the nine members of the Supreme Court, two dissented -- Justice Michael Moldaver and Chief Justice Richard Wagner -- while seven of their colleagues agreed with drug trafficker Tom Le that his Charter rights had been injured, and that the incriminating evidence that made for his conviction be set aside, so that absent 'evidence' he was free from conviction of criminal activity.

What's that old saying? The law is an ass!