Implied License for Differential Treatment

The interaction between law enforcement and notions of privacy in the security of our homes has always been a special focus of s. 8 Charter rights. The treatment of the home as a special place in the law was described by Justice Binnie in R. v. Tessling as a nuanced hierarchy protecting privacy of places, used to evaluate the reasonableness of a person’s expectation of privacy.

This privacy interest is not absolute, and although the “dwelling house” enjoys the greatest expectation of privacy, the perimeter space around the home enjoys a diluted measure of this same expectation.

One example of how the perimeter around a home is treated differently is under the common law doctrine of “implied license,” described in R. v. Evans, where all members of the public are provided a presumptive ability to approach the door of a residence to knock. The police can enjoy this same presumption, and use this license to contact individuals within a house in order to elicit further information.

Use of the implied license at the Akinson Housing Co-operative in Toronto was scrutinized by the Ontario Court of Appeal in R. v. Le last year, and was the basis of the Osgoode Cup Moot this weekend. The co-op was originally a government housing project, which was converted into a non-profit housing co-operative between 1992 to 2003.

Throughout this time the area has been plagued by racial tensions and gang activities, including the largely-Black Project Originals (or P.O. Boys), who were also aligned with the local Asian Assassinz. Drug-related and violent crimes have been known in the area since the introduction of crack cocaine in the 80’s, and the neighbourhood has long been of interest to law enforcement.

In this case, security guards in the housing complex tipped off Toronto Police Service (TPS) of some potential activity by P.O. Boys in one particular backyard, including the potential presence of two individuals associated with violent crimes. The Atkinson Housing Co-operative had expressly authorized police in writing to enforce the provincial Trespass to Property Act in the townhouse complex. As the three officers approached this backyard, they identified 4 Black males and 1 Asian male. The backyard had some couches in it, and was surrounded by a low fence that had a large hole in it – the only way in or out of this backyard.

Two of the officers entered the yard, and a third stood by the hole in the fence. They asked the identity of the individuals for the purposes of ascertaining if they were trespassing, and observed some suspicious movements before the accused fled and was captured. The entire ordeal from start to finish in the backyard was less than a minute, but once apprehended the officers quickly discovered considerable amounts of cash, 13 grams of crack cocaine, and a fully- loaded, operable, semi-automatic Ruger pistol in the possession of the accused. 

Because the officers did not ask for permission to enter the yard, and the drugs and firearm were only found after the accused had been questioned in the backyard, the accused claimed that their ss. 8 and 9 Charter rights had been breached, and the evidence should be excluded under s. 24(2). The Crown relied on the implied license to justify the officer’s activity. Both the trial level judge and the majority of the Court of Appeal denied this Charter application, and refused to exclude the evidence as bringing the justice system into disrepute.

The sole dissent was by Justice Lauwers, who found that the police had entered the backyard illegally as an unlawful trespass. The persons of interest the police were looking for were not present here, and the occupant of the residence, who was present, did not provide consent for them to enter. Although the majority emphasized the lack of control that a guest such as the accused to exert on the property, Justice Lauwers examined the totality of the circumstances and found that as an invited guest the accused did have a reasonable expectation of privacy,

[128] … I have no hesitation in saying that the appellant has shown both the existence of a subjective expectation of privacy and the objective reasonableness of the expectation. The logic of the implicit contrary assertion must be rejected as utterly inconsistent with ordinary life in our free and democratic society. There are two elements to that implicit contrary assertion: the first is that while his host Mr. Dixon would have full Charter protection, as his guest, the appellant had none; the second is that the appellant left his personal Charter protections at home and could not resume them until he returned there. It would be hard to imagine that any citizen would accede to these propositions.

Justice Lauwers also found a s. 9 breach, stating,

[141] …the atmosphere the police created by their questioning would lead a reasonable person in the appellant’s position to believe that he had no choice but to comply with their demands. At one point in the interaction, one of the young men put his hands behind his back. Two of the officers told or yelled at him to keep his hands where they could see them. 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. 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.

This matter has already been appealed to the Supreme Court of Canada, pending disposition by the Court. The factum for the Scadding Court Community Centre, found adjacent to the co-op, states,

Frequent police interactions can impact upon the dignity of an individual and their sense of self-worth. If an individual is stopped by police more frequently, it does not necessarily follow that they will have a better understanding of whether or when a detention has occurred (and therefore that their subjective perceptions should be given greater weight). In fact, the opposite may well be true. Individuals, and particularly racialized youth, who are more frequently stopped by police are likely to be more inclined to feel as though they are not free to leave and must stay to answer the police’s questions.

This sentiment was supported by Justice Binnie in R. v. Grant at paras 154-155, 169, as well as in Justice Le Dain’s dissent in R. v. Therens at para 57.

The trial decision largely discounted the testimony of the accused, finding significant issues with his credibility. His admission of a criminal record, including convictions for robbery, being disguised with intent, assault with a weapon, trafficking in cocaine, and possession of the proceeds of crime, were all noted. The judge found him “cavalier and arrogant,” and concluded much of his testimony was fabricated to bolster the Charter claims. This type of attitude however would not be unusual by a gang member who was on the stand and attempting to save face.

Although this finding is worthy of significant deference on review, there were some important points elicited through this testimony. The accused claimed there were cushions propped up by the fence, acting as a makeshift gate or barrier. The nature of the co-op was such that it was not always maintained in best repair, and individuals would not have the same autonomy to make such repairs themselves.

The accused also indicated a long history of police harassment and brutality in the neighbourhood, albeit not by these three particular officers. He claimed that the officers herded them towards a corner in the yard, and that the only suspicious behaviour may have been that he was trying to leave the yard and enter the dwelling. The impoverished nature of the community, and the history of relationships with law enforcement there, do not make such claims outside the realm of reality.

The Factum for the Urban Alliance on Race Relations states describes some of the contextual factors around the relationship with law enforcement in this neighbourhood,

Carding was a practice ostensibly implemented as a public safety measure. Police were not known to card civilians while they were on or in the property of a private residence, such as inside a home or in the yard of a home. Moreover, in high crime neighbourhoods such as the one where the Atkinson Housing Co-Operative is located, the practice and expectation was that police interactions are restricted to public spaces, and could therefore be avoided by remaining within the boundaries of a private residence, whether one’s own or that of someone else. In communities like this, presence at a private residence is the only reliable way to enjoy a safe zone of privacy, and to feel like one has the “right to be left alone”24 from the police. This is because the police generally focused their attention and activities exclusively on public areas, such as on open cul-de-sacs, streets, alleys, narrow walkways, playgrounds and courtyards in these high-crime communities. One
report of the Ontario Government explains this retreat from public space within high-crime neighbourhoods in the following way:

As fewer people use the public areas for socialization, the space is ceded to those who want to use it for crime. This of course fuels the sense that the area is unsafe, and discourages more people from using it, thus driving the downward cycle for the area. This makes it easy for gangs to control, or appear to control, access to public spaces.

[emphasis added]

The Factum for the Federation of Asian Canadian Lawyers (FACL), also emphasized the use of racial profiling in this case.

The problem with the majority of the Court of Appeal’s analysis is that it allows law enforcement to utilize the natural terrain of an impoverished neighbourhood to take advantage of disrepair, effectively affording a lower expectation of privacy and less protection under the Charter than people who live in more affluent neighbourhoods.

When coupled with a long history of tense relationships with a community that is being policed, such differential treatment may indeed lead some in society to perceive the justice system with greater disrepute. That is a perception that needs to be clarified by the Court, no matter how “protean” the notion of privacy may be.

Omar Ha-Redeye providing the keynote at the 2019 Osgoode Cup

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