Tom Le Appellant v. Her Majesty The Queen, 2019 SCC 34

SUPREME COURT OF CANADA Citation: R. v.

Le, 2019 SCC 34, [2019] 2 S.C.R. 692 Appeal Heard: October 12, 2018 Judgment Rendered: May 31, 2019 Docket: 37971 Between: Tom Le Appellant and Her Majesty The Queen Respondent - and - Director of Public Prosecutions, Criminal Lawyers’ Association of Ontario, Canadian Muslim Lawyers Association, Canada Without Poverty, Canadian Mental Health Association, Manitoba and Winnipeg, Aboriginal Council of Winnipeg, Inc., End Homelessness Winnipeg Inc., Federation of Asian Canadian Lawyers, Chinese and Southeast Asian Legal Clinic, Canadian Civil Liberties Association, Scadding Court Community Centre, Justice for Children and Youth and Urban Alliance on Race Relations Interveners Coram: Wagner C.J. and Moldaver, Karakatsanis, Brown and Martin JJ.

Joint Reasons for Judgment: (paras. 1 to 166) Brown and Martin JJ. (Karakatsanis J. concurring) Dissenting Reasons: (paras. 167 to 311) Moldaver J. (Wagner C.J. concurring) R. v. Le , 2019 SCC 34, [2019] 2 S.C.R. 692 Tom Le Appellant

v. Her Majesty The Queen Respondent and Director of Public Prosecutions, Criminal Lawyers’ Association of Ontario, Canadian Muslim Lawyers Association, Canada Without Poverty, Canadian Mental Health Association, Manitoba and Winnipeg, Aboriginal Council of Winnipeg, Inc., End Homelessness Winnipeg Inc., Federation of Asian Canadian Lawyers, Chinese and Southeast Asian Legal Clinic, Canadian Civil Liberties Association, Scadding Court Community Centre, Justice for Children and Youth and Urban Alliance on Race Relations Interveners Indexed as: R. v. Le 2019 SCC 34 File No.: 37971. 2018: October 12; 2019: May 31.

Present: Wagner C.J. and Moldaver, Karakatsanis, Brown and Martin JJ. on appeal from the court of appeal for ontario Constitutional law — Charter of Rights — Arbitrary detention — Remedy — Exclusion of evidence — Police entering private backyard where five young men were gathered without warrant or consent — Police questioning men and requesting documentary proof of identities — Accused fleeing backyard and caught in possession of firearm, drugs and cash — Whether encounter between police and accused infringed accused’s right to be free from arbitrary detention — If so, whether admission of evidence would bring administration of justice into disrepute warranting its exclusion — Canadian Charter of Rights and Freedoms, ss. 9 , 24(2) .

One evening, five young racialized men, including the 20-year-old accused, were gathered in the private backyard of a townhouse at a Toronto housing co-operative when three police officers arrived. The young men appeared to be doing nothing wrong. They were just talking. Two officers entered the backyard, without a warrant or consent. They immediately questioned the young men and requested documentary proof of their identities. The third officer patrolled the perimeter of the property, then stepped over the low fence enclosing the backyard and directed one of the men to keep his hands where he could see them.

One officer questioned the accused, demanding that he produce identification and asking him what was in the satchel he was carrying. At that point, the accused fled, was pursued and arrested, and found to be in possession of a firearm, drugs and cash. At his trial, the accused sought the exclusion of this evidence under s. 24(2) of the Charter on the basis that the police had infringed his constitutional rights to be free from unreasonable search and seizure and from arbitrary detention, contrary to ss. 8 and 9 of the Charter .

In convicting the accused, the trial judge held that he lacked standing to advance a s. 8 claim, that he was detained only when the officer asked him about the contents of his bag, that the detention was not arbitrary, and that had a breach of Charter rights occurred, the evidence would be admissible. A majority at the Court of Appeal agreed and dismissed the accused’s appeal from his convictions. Held (Wagner C.J. and Moldaver J. dissenting): The appeal should be allowed, the evidence excluded, the convictions set aside and acquittals entered.

Per Karakatsanis, Brown and Martin JJ.: The circumstances of the police entry into the backyard effected a detention that was both immediate and arbitrary. This was serious Charter -infringing police misconduct, with a correspondingly high impact on the accused’s protected interests. It was precisely this sort of police conduct that the Charter was intended to abolish. On balance, the admission of the evidence would bring the administration of justice into disrepute. Since the appeal can be disposed on the basis of ss. 9 and 24(2) of the Charter , there is no need to resolve the s. 8 issue.

The prohibition of arbitrary detention in s. 9 of the Charter is meant to protect individual liberty against unjustified state interference. It limits the state’s ability to impose intimidating and coercive pressure on citizens without adequate justification. Not every police-citizen interaction is a detention within the meaning of s. 9 ; a detention requires significant physical or psychological restraint.

Psychological detention by the police can arise in two ways: (1) the claimant is legally required to comply with a direction or demand by the police; or (2) a claimant is not under a legal obligation to comply with a direction or demand, but a reasonable person in the subject’s position would feel so obligated, and conclude that they were not free to go.

Therefore, even absent a legal obligation to comply with a police demand or direction, and even absent physical restraint by the state, a detention exists in situations where a reasonable person in the accused’s shoes would feel obligated to comply with a police direction or demand and that they are not free to leave. In determining the point of detention for the purposes of s. 9 of the Charter , it is essential to consider all of the circumstances of the police encounter. The Court in R. v. Grant , 2009 SCC 32 , [2009] 2 S.C.R. 353, adopted three non-exhaustive factors that can aid in the analysis.

In the instant case, each of these factors support the conclusion that the accused’s detention began the moment the police entered the backyard and made contact with the young men. The first factor — the circumstances giving rise to the encounter as they would reasonably be perceived by the individual — supports a finding of detention arising prior to the officer’s inquiry about the contents of the accused’s satchel.

The conduct of the police exceeded the norms of community policing, there was no obvious cause for any police presence in the backyard, the police never expressly communicated to the young men why they were there, they immediately started questioning them, and the height of the fence allowed full interaction without entry. Therefore, a reasonable person would not perceive the police entry into the backyard as merely assisting in meeting needs or maintaining basic order.

The second factor — the nature of the police conduct — supports the conclusion that a detention arose as soon as the police officers entered the backyard and started asking questions. Many considerations influence the analysis under this factor. When the police enter a private residence as trespassers, as they did here, it both colours what happens subsequently and strongly supports a finding of detention at that point in time. The actions of the police and the language used may show that the police are immediately taking control of a situation.

Here, the contemporaneous actions of the police and the language employed illustrate they were exerting dominion over the individuals in the backyard from the time of entry. There was physical proximity and the officers positioned themselves in a way to question specific young men apart from the others, in a manner to block the exit. Furthermore, with respect to the place where the interaction occurred and the mode of entry, the nature of any police intrusion into a home or backyard is reasonably experienced as more forceful, coercive and threatening than when similar state action occurs in public.

Coming over the fence to enter a private residence conveys a show of force. Living in a less affluent neighbourhood in no way detracts from the fact that a person’s residence is a private and protected place. The reputation of a particular community or the frequency of police contact with its residents does not in any way license police to enter a private residence more readily or intrusively than they would in a community with higher fences or lower rates of crime.

Here, there was a tactical element to the encounter and the mode of entry involving three uniformed officers suddenly occupying a backyard and taking control over the people in it late at night would be seen as coercive and intimidating by a reasonable person. The police conduct towards others would also likely have an impact on how a reasonable person in the accused’s shoes would perceive the unfolding situation. Witnessing a repeated sequence of command and compliance would lead a reasonable person to believe that they are not free to leave and that even their physical movements are subject to police control.

In addition, the overall duration of an encounter may contribute to the conclusion that a detention occurred, although a detention can occur within a matter of seconds, depending on the circumstances. What the accused in this case saw occurring to others likely increased the perception and reality of coercion, as the others simply did what the police told them to do.

Although the interaction lasted less than a minute, the impact of the police conduct in that short space of time would lead any reasonable person to conclude that it was necessary to comply with police directions and commands, and that it was impossible to leave or walk away without the permission of the police once they entered the backyard.

With respect to the third factor — the particular characteristics or circumstances of the individual —, a reasonable person imbued with the experiences that accompany the accused’s particular circumstances would conclude that there was a detention from the moment the officers entered the backyard and started asking questions. Courts must appreciate that individuals in some communities may have different experiences and relationships with police than others and such may impact upon their reasonable perceptions of whether and when they are being detained.

At the detention stage, the analysis 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 reasonable person in the shoes of the accused is presumed to be aware of this broader racial context. Evidence about race relations that may inform whether there has been a detention under s. 9 , like all social context evidence, can be proved in legal proceedings by direct evidence, admissions, or by the taking of judicial notice.

Because the focus is on how the combination of a racialized context and minority status would affect the perceptions of a reasonable person in the shoes of the accused and not on what motivated the officers to act as they did, a finding that there has been no racial profiling has therefore little bearing. While the accused’s level of sophistication could also bear on the timing of a detention, merely because an individual has had repeated interactions with the police does not mean that the individual has acquired a level of sophistication in dealing with the police.

A reasonable person who has been stopped by the police on multiple prior occasions would more likely perceive that it is necessary to simply submit to police demands. What a reasonable person may perceive may also be influenced by age and the knowledge, life experience and discernment associated with that age group.

The focus of the s. 9 analysis should not be on what was in the accused’s mind at a particular moment in time, but rather on how the police behaved and, considering the totality of the circumstances, how such behavior would be reasonably perceived by a person imbued with the experiences that accompany the accused’s particular circumstances. In this case, the documented history of the relations between police and racialized communities would have had an impact on the perceptions of a reasonable person in the shoes of the accused.

Research studies have established that racial minorities are both treated differently by the police and that such differential treatment does not go unnoticed by them. We have arrived at a place where the research now shows disproportionate policing of racialized and low-income communities. Indeed, it is in this larger social context that the police entry into the backyard and questioning of the accused and his friends must be approached. It was another example of a common and shared experience of racialized young men: being frequently targeted, stopped, and subjected to pointed and familiar questions.

Where a detention is established, a court must consider whether the detention is arbitrary. The detention must be authorized by law, the authorizing law must not be arbitrary, and the manner in which the detention is carried out must be reasonable. Since no statutory or common law power authorized the accused’s detention at the moment the police entered the backyard and made contact with the young men, it was an arbitrary detention that infringed the accused’s Charter right. First, the police were trespassers.

The implied licence doctrine, which allows the police, or any member of the public, on legitimate business to proceed from the street to the door of a house so as to permit convenient communication with the occupant of the dwelling, does not apply to excuse the police presence in the backyard because even if communication was the officers’ purpose, it did not necessitate their entry onto private property. The police

also had a subsidiary purpose — a speculative criminal investigation —, which exceeds the authorizing limits of the implied licencedoctrine. Second, the police had no legal authority to detain the accused. No statute authorized the police officers to detain anyone in thebackyard, and the common law power to detain for investigative purposes could not be invoked. The latter only allows the police todetain an individual for investigative purposes where, in the totality of circumstances, there are reasonable grounds to suspect a clearnexus between the individual and a recent or still unfolding crime.

A suspect’s presence in a so-called high crime area is not by itself abasis for detention and the mere presence of non-suspects in an area frequented days or weeks earlier by a person of interest cannotfurnish such a basis. The receipt of general information about contraband in relation to an address does not, without more specificity,give rise to reasonable suspicion in relation to recent or ongoing criminal activity.

Where evidence is obtained in a manner that infringes a Charter right or freedom, s. 24(2) provides that such evidence mustbe excluded if it is established that, having regard to all the circumstances, its admission would bring the administration of justice intodisrepute. While the exclusion of evidence may provoke immediate criticism, the focus is on the overall repute of the justice system,viewed in the long term by a reasonable person, informed of all relevant circumstances and of the importance of Charter rights, and noton the impact of state misconduct upon the criminal trial.

It is the sum, and not the average, of the seriousness of the Charter-infringingconduct and the impact of the breach on the Charter-protected interests of the accused that determines the pull towards exclusion. Themore serious the state-infringing conduct and the greater the impact on the Charter-protected interests, the stronger the case forexclusion. Where these inquiries, taken together, make a strong case for exclusion, society’s interest in an adjudication of the case on itsmerits will seldom if ever tip the balance in favour of admissibility.

When considering the first line of inquiry — the seriousness of the Charter-infringing conduct —, for state misconduct to beexcused as a good faith (and, therefore, minor) infringement of Charter rights, the state must show that the police conducted themselvesin a manner consistent with what they subjectively, reasonably and non-negligently believed to be the law. Here, good faith cannot beascribed to these police officers’ conduct. Their own evidence makes clear that they fully understood the limitations upon their ability toenter the backyard to investigate individuals.

This was serious police misconduct and weighs heavily in favour of a finding thatadmission of the resulting evidence would bring the administration of justice into disrepute. The second line of inquiry — the impact on the Charter-protected interests of the accused — entails asking whether and towhat extent, in the totality of the circumstances, the Charter breach actually undermined the interests protected by the right infringed.Here, when weighed against the absence of justification to investigate the young men at all, the impact of this police misconduct isheightened considerably.

The discovery of the evidence was only possible because of the serious s. 9 breach in this case. This line ofinquiry also strongly favours a finding that admission of the evidence in this case would bring the administration of justice into disrepute. The third line of inquiry — society’s interest in adjudication of the case on its merits — typically pulls toward inclusion ofthe evidence.

Courts must be careful to dissociate themselves and their trial processes from the violation of longstanding constitutionalnorms reflected in the Court’s Charter jurisprudence that has emphasized the importance of individuals’ liberty interests. On balance, inthis case, this line of inquiry provides support for admitting the highly reliable evidence. In this case, in view of the application of the three Grant lines of inquiry, admission of the fruits of the police conduct wouldbring the administration of justice into disrepute, and as such, the evidence must be excluded.

Per Wagner C.J. and Moldaver J. (dissenting): The appeal should be dismissed. While the appellant was arbitrarily detained,resulting in a breach of his s. 9 Charter rights, admission of the evidence would not bring the administration of justice into disrepute. The fundamental principles that govern the nature and scope of appellate review include the principle that fact finding isreserved to trial courts. The threshold for interfering with a trial judge’s factual findings and findings of credibility is stringent.

Appellateintervention is justified only where the trial judge has made a palpable and overriding error. Given that, before the Court, the appellantdoes not allege that any of the trial judge’s findings of fact were tainted by palpable and overriding error or were unreasonable and thereis no challenge to the trial judge’s credibility assessment, the Court must perform its legal analysis based on the factual foundation laidby the trial judge. It would be inappropriate for the Court to substitute its own findings for those of the trial judge. The police entry into the backyard was unlawful.

The police were trespassers from the moment they set foot on the property,given that the implied licence doctrine could not apply in the present case. This doctrine, which allows police officers and other membersof the public, on lawful business, to enter onto private property and approach the door of the residence in order to speak with the owneror occupier, could not apply for the sole reason that the police could readily make contact with the potential owner/occupier from outsidethe property.

Nonetheless, the trial judge’s finding that the police had legitimate investigatory purposes for entering the backyard isentitled to deference. Even if the police were not justified in entering the backyard in order to investigate whether the young men weretrespassers, two valid investigatory objectives remained: (1) to investigate whether any of the young men were a known suspect or knewthe whereabouts of another known suspect; and (2) to investigate potential drug trafficking in relation to the property.

The appeal can be disposed of without finally deciding whether the unlawful entry by the police into the backyard resultedin a breach of the appellant’s s. 8 Charter rights. That said, it is doubtful that the appellant’s s. 8 argument could withstand scrutiny, asthere is no compelling basis on which to conclude that his informational privacy interests were engaged to any significant degree, and theCourt’s decisions in R. v. Edwards, (SCC), [1996] 1 S.C.R. 128, and R. v. Belnavis, (SCC), [1997] 3S.C.R. 341, cast serious doubt on his territorial privacy argument.

Even if it is assumed for the sake of argument that his s. 8 rights werebreached, any such breach was both inadvertent and insignificant in terms of its impact, thereby making it inconsequential from as. 24(2) perspective.

Section 9 of the Charter protects the right to be free from arbitrary detention or imprisonment. Detention under s. 9 refers toa suspension of the individual’s liberty interest by a significant physical or psychological restraint. Whether a psychological detention hasoccurred is determined objectively, having regard to all the circumstances. The onus is on the applicant to show that in thecircumstances, he or she was effectively deprived of his or her liberty to choose whether to stay or leave.

While the test is objective, theindividual’s particular circumstances and perceptions at the time may be relevant in determining whether a reasonable person in thecircumstances would perceive himself or herself as not being free to go. The factors in determining whether and when a psychological

detention has occurred include the circumstances giving rise to the encounter as they would reasonably be perceived by the individual, the nature of the police conduct, and the particular characteristics or circumstances of the individual where relevant. The determination of whether and when a detention has occurred based on a trial judge’s underlying findings of fact is a question of law subject to the standard of correctness. In the present case, it is not disputed that a detention occurred; the question is one of timing.

Applying the relevant factors with a view to determining the point at which the appellant was detained, beginning with the circumstances giving rise to the encounter, the trial judge found that the police had at least two valid investigatory purposes; the police encounter in the backyard therefore took place in the context of a legitimate police investigation and the young men had no reason to believe otherwise.

The trial judge’s findings make clear that this was not a fishing expedition, and it is not open to an appellate court to substitute its views for the views of the trial judge according to what the appellate court thinks the evidence establishes. The interaction began with a series of general inquiries, rather than an attempt by the police to single out any particular individual for focused investigation. This militates against the conclusion that the detention was immediate.

Turning to the nature of the police conduct, the following principles expressed by the majority are endorsed: if it can be shown that the police conduct at issue was aggressive, then that would be a significant factor in the analysis; police conduct towards third parties can influence how a reasonable person in the claimant’s shoes would perceive his or her own freedom of movement; the setting in which the police interaction takes place is a relevant consideration — in particular, a police intrusion into a private space may reasonably be perceived as communicating some measure of control over the occupants; the duration of the police encounter is a relevant consideration; and an unlawful police entry can generally be expected to have an intimidating effect and may therefore cause a reasonable person to be less inclined to believe he or she is free to walk away.

In this case, the trial judge was presented with two strikingly different accounts of what occurred on the night in question. He accepted the account provided by the police and rejected that of the appellant and his friends. Thus, on the trial judge’s findings, this was not a shakedown, an instance of racial profiling, or a mere fishing expedition. Rather, it was a legitimate investigation performed by the police, and there was no finding of bad faith.

In concluding that the police were aggressive, that they were engaged in a fishing expedition, and that their conduct demonstrated that they were exerting dominion over the individuals in the backyard from the time of entry, the majority has recast the record in a manner that is inconsistent with the positive findings of fact that the trial judge made in favour of the police. It is not open to an appellate court to recharacterize police conduct based on its own appreciation of the evidence to arrive at its own view of how a reasonable person in the circumstances would perceive that conduct.

Turning to the particular characteristics and circumstances of the individual, there is agreement with the majority on a number of points, including the following: a person may experience a police interaction differently depending on his or her age, race, life experience, and other personal characteristics, and these factors should be taken into account in the s. 9 analysis; the judicially constructed reasonable person must reflect and respect racial diversity, as well as the broader state of relations between the police and various racial groups; credible reports, studies, and other materials on race relations may assist courts in understanding how racialized persons may experience police interactions differently, and while it is generally preferable that all relevant materials be placed before the trial judge and made the subject of submissions from the parties, courts may take judicial notice of such materials where the test set out in R. v.

Spence , 2005 SCC 71 , [2005] 3 S.C.R. 458, is met; and a young person of small physical stature like the appellant may reasonably perceive a greater power imbalance vis-à-vis the police, as compared to how a larger, more mature person might perceive the situation. The appellant is an Asian-Canadian man of slight build who was 20 years old at the time of the incident. The trial judge expressly anchored his analysis in the perspective of a reasonable person in the position of the appellant, and he took into account the visible minority status of the appellant and his friends.

The appellant testified that he considered himself free to go until the police engaged him directly. The claimant’s own perception of whether and when he or she was detained is not determinative, but it may be a relevant consideration. Here, the appellant’s testimony suggests that a reasonable person in the circumstances would not have considered himself detained from the moment the police set foot in the backyard. Finally, in determining the timing of the appellant’s detention, the Court’s decisions in R. v. Grant , 2009 SCC 32 , [2009] 2 S.C.R. 353, and R. v.

Suberu , 2009 SCC 33 , [2009] 2 S.C.R. 460, make clear that as a general rule, only when the police move from general questioning to focussed interrogation will a detention result. General neighbourhood policing and preliminary or exploratory questioning are generally insufficient to effect a detention. In the case at hand, at the initial stage of the interaction, the police officers were simply orienting themselves to the situation and engaging in pre-detention exploratory interaction.

While it can be difficult to ascertain with any degree of certainty the point at which a psychological detention occurred, it could reasonably be said that the appellant was detained, at the earliest, when the third officer entered the backyard and directed one of the young men to keep his hands in front of him, an order which he complied with immediately.

In all the circumstances, upon seeing this clear exercise of police authority and his friend’s immediate compliance, it is realistic to conclude that a reasonable person in the appellant’s circumstances would have considered himself effectively deprived of his liberty of choice, even though he did not consider himself to be detained at this point. The detention in this case was arbitrary. At the moment when the appellant was detained, the police had not yet developed reasonable grounds to suspect he was armed — a prerequisite to a lawful investigative detention.

This resulted in a breach of the appellant’s s. 9 Charter rights. However, the arbitrary detention was momentary, lasting mere seconds before the police developed reasonable grounds to suspect the appellant was armed, thereby transforming the arbitrary detention into a lawful one. Since the conclusion on the Charter breach issues differs from that of the trial judge, a fresh s. 24(2) analysis must be undertaken, accepting the trial judge’s underlying factual findings absent any suggestion that they were tainted by a palpable and overriding error.

The first line of inquiry to be considered is the seriousness of the Charter -infringing state conduct. This involves a consideration of whether admission of the evidence would send a message to the public that the courts, as institutions responsible for the administration of justice, effectively condone state deviation from the rule of law. The court must fix the police misconduct on a spectrum ranging from the minor and inadvertent to the wilful or reckless. As an appellate court, the Court cannot simply substitute its own view of the police conduct for that of the trial judge or recharacterize the evidence.

Here, the trial judge concluded that there was no evidence suggesting that the officers were engaged in racial profiling. Nor were the police abusing their powers in any other manner. On

the trial judge’s findings, it is clear that any breach of the appellant’s Charter rights was technical and inadvertent, and there was nofinding of bad faith on the part of the police. Although the police trespassed, they did not do so wilfully or deliberately. Rather, thetrespass was inadvertent and committed in the course of performing legitimate investigatory duties. The s. 9 breach was far fromegregious. The seriousness of the Charter-infringing conduct falls on the low end of the spectrum. Admission of the evidence would notsend the message that the justice system condones serious state misconduct.

The second line of inquiry focuses on the impact of the Charter breaches on the Charter-protected interests of the applicant.The impact of a Charter breach may range from fleeting and technical to profoundly intrusive. The more serious the impact, the greaterthe risk that admission of the evidence may signal to the public that Charter rights are of little avail, thereby bringing the administrationof justice into disrepute. In addition, the discoverability of the evidence is a relevant consideration in assessing the impact on theindividual’s Charter-protected interests.

The impact of the s. 9 breach on the appellant’s liberty, dignity, bodily integrity, and autonomywas reduced in terms of its significance because the arbitrary detention was fleeting in duration, did not result in any physical detention,and did not involve any aggressive or demeaning conduct on the part of the police. On the other hand, with respect to the discoverabilityof the evidence, the s. 9 breach set in motion a series of events that led to the discovery of the evidence. This is a consideration that mustbe weighed in the balance.

However, that factor alone cannot be allowed to overwhelm the analysis and require near-automatic exclusionof the evidence. Moreover, the impact on the appellant’s Charter-protected interests should be considered in light of the fact that noevidence was obtained during the momentary arbitrary detention; rather, it was discovered only after the police had the grounds neededto perform an investigative detention, and only after the appellant decided to run from the police.

In light of all the circumstances, theimpact on the appellant’s Charter-protected interests was not so great as to clearly overwhelm competing considerations. The third line of inquiry considers society’s interest in the adjudication of the case on its merits. Society generally expectsthat a criminal allegation will be adjudicated on its merits, and it has a collective interest in ensuring that those who transgress the laware brought to trial and dealt with according to the law.

The third Grant line of inquiry asks whether the truth-seeking function of thecriminal trial process would be better served by admission of the evidence, or by its exclusion. The reliability of the evidence, itsimportance to the Crown’s case, and the seriousness of the offences are all factors to be considered. Here, society’s interest in theadjudication of the case on its merits is exceedingly high. The fact that a fully loaded, semi-automatic handgun is implicated is no minorconsideration.

It is essential to both the rule of law and the attainment of the rights enshrined in the Charter that Canadians feel safe andsecure in their communities. The reality that many Canadians live under the constant threat of gun violence and the evils of drugtrafficking and look to the police for protection must not be lost in the s. 24(2) analysis. The evidence in this case is real, reliable, andessential evidence of very serious criminal offences. Exclusion of the evidence would gut the Crown’s case. This line of inquiry pullsstrongly in favour of admission.

In this case, considering all the circumstances, it is clear what must be done to maintain the good repute of theadministration of justice: the evidence must be admitted. Given that the seriousness of the Charter-infringing conduct falls on the lowend of the spectrum and society’s interest in an adjudication on the merits is exceedingly high, the impact on the appellant’sCharter-protected interests is insufficient to tip the scale in favour of exclusion.

The majority’s approach does nothing to recognize thatthe three police officers, in the course of carrying out a legitimate investigation, put their lives on the line for the good of the community.The chambered bullet in the appellant’s semi-automatic handgun could have ended the life of an innocent bystander or one of the policeofficers as they struggled to wrest control of the bag containing the weapon from the appellant. Reasonable and well-informed membersof the public would regard a decision to exclude the evidence as intolerable. Cases Cited By Brown and Martin JJ. Applied: R. v.

Grant, 2009 SCC 32, [2009] 2 S.C.R. 353; referred to: R. v. Shepherd, 2009 SCC 35, [2009] 2 S.C.R. 527;Chromiak v. The Queen, (SCC), [1980] 1 S.C.R. 471; R. v. Mann, 2004 SCC 52, [2004] 3 S.C.R. 59; R. v. Suberu, 2009SCC 33, [2009] 2 S.C.R. 460; R. v. MacMillan, 2013 ONCA 109, 114 O.R. (3d) 506; R. v. Wong, 2015 ONCA 657, 127 O.R. (3d) 321;R. v. Koczab, 2013 MBCA 43, 294 Man. R. (2d) 24, rev’d 2014 SCC 9, [2014] 1 S.C.R. 138; R. v. Therens, (SCC),[1985] 1 S.C.R. 613; Quebec (Commission des droits de la personne et des droits de la jeunesse) v.

Bombardier Inc. (BombardierAerospace Training Center), 2015 SCC 39, [2015] 2 S.C.R. 789; Peart v. Peel Regional Police Services Board (2006), (ON CA), 43 C.R. (6th) 175; R. v. Spence, 2005 SCC 71, [2005] 3 S.C.R. 458; R. v. Find, 2001 SCC 32, [2001] 1 S.C.R. 863; R. v.Golden, 2001 SCC 83, [2001] 3 S.C.R. 679; R. v. Brown (2003), (ON CA), 64 O.R. (3d) 161; R. v. Lavallee, (SCC), [1990] 1 S.C.R. 852; R. v. Collins, (SCC), [1987] 1 S.C.R. 265; R. v. Evans, (SCC),[1996] 1 S.C.R. 8; R. v. Mackenzie, 2013 SCC 50, [2013] 3 S.C.R. 250; R. v. O.(N.), 2009 ABCA 75, 2 Alta.

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Home Office, [1970] 2 All E.R.294. By Moldaver J. (dissenting) R. v. Edwards, (SCC), [1996] 1 S.C.R. 128; R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353; R. v. Suberu,2009 SCC 33, [2009] 2 S.C.R. 460; R. v. Belnavis, (SCC), [1997] 3 S.C.R. 341; Stein v. The Ship “Kathy K”, (SCC), [1976] 2 S.C.R. 802; Beaudoin-Daigneault v. Richard, (SCC), [1984] 1 S.C.R. 2; Lensen v. Lensen, (SCC), [1987] 2 S.C.R. 672; Geffen v. Goodman Estate, (SCC), [1991] 2 S.C.R. 353; Toneguzzo-Norvell(Guardian ad litem of) v. Burnaby Hospital, (SCC), [1994] 1 S.C.R. 114; Hodgkinson v. Simms, (SCC), [1994] 3 S.C.R. 377; Schwartz v.

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Appeal allowed, Wagner C.J. and Moldaver J.dissenting. Emily Lam and Samara Secter, for the appellant. Sandy Tse and Amy Rose, for the respondent. Janna A. Hyman and Carole Sheppard, for the intervener the Director of Public Prosecutions. Jonathan Dawe and Sherif M. Foda, for the intervener the Criminal Lawyers’ Association of Ontario. Faisal Mirza, for the intervener the Canadian Muslim Lawyers Association.

Written submissions only by Byron Williams, Allison Fenske and Dayna Steinfeld, for the interveners Canada WithoutPoverty, the Canadian Mental Health Association, Manitoba and Winnipeg, Aboriginal Council of Winnipeg, Inc., and EndHomelessness Winnipeg Inc. Gerald Chan and Lindsay Board, for the interveners the Federation of Asian Canadian Lawyers and the Chinese andSoutheast Asian Legal Clinic. Kate Robertson, Danielle Glatt and Sean Lewis, for the intervener the Canadian Civil Liberties Association. Tina Lie, for the intervener the Scadding Court Community Centre.

Written submissions only by Mary Birdsell and Jane Stewart, for the intervener Justice for Children and Youth. Written submissions only by Julian N. Falconer and Anthony N. Morgan, for the intervener the Urban Alliance on RaceRelations. The judgment of Karakatsanis, Brown and Martin JJ. was delivered by Brown and Martin JJ. — I. Introduction [1] One evening, three police officers noticed four Black men and one Asian man in the backyard of a townhouse at aToronto housing co-operative. The young men appeared to be doing nothing wrong. They were just talking.

The backyard was small andwas enclosed by a waist-high fence. Without a warrant, or consent, or any warning to the young men, two officers entered the backyardand immediately questioned the young men about “what was going on, who they were, and whether any of them lived there” (2014ONSC 2033, at para. 17 (“TJR”)). They also required the young men to produce documentary proof of their identities.Meanwhile, the third officer patrolled the perimeter of the property, stepped over the fence and yelled at one young man to keep hishands where the officer could see them.

Another officer issued the same order. [2] The officer questioning the appellant, Tom Le, demanded that he produce identification. Mr. Le responded that hedid not have any with him. The officer then asked him what was in the satchel he was carrying. At that point, Mr. Le fled, was pursuedand arrested, and found to be in possession of a firearm, drugs and cash.

At trial, he sought the exclusion of this evidence under s. 24(2)of the Canadian Charter of Rights and Freedoms (“Charter”) on the basis that the police had infringed his constitutional rights to be freefrom unreasonable search and seizure and from arbitrary detention, contrary to ss. 8 and 9 of the Charter. [3] In convicting Mr. Le, the trial judge held that he lacked standing to advance a s. 8 claim, there being no objectivereasonableness to any subjective expectation of privacy that he might harbour as “a mere transient guest” (TJR, at para. 81). As to s. 9,the trial judge held that, while Mr.

Le was detained when he was asked about the contents of his satchel, the detention was not arbitraryas the police had reasonable grounds to suspect he was armed. A majority at the Court of Appeal for Ontario agreed, accepting that, hadit found breaches, it would not have excluded the evidence as any breach would have been “technical, inadvertent, and made in goodfaith” (2018 ONCA 56, 360 C.C.C. (3d) 324, at para. 76, quoting TJR, at para. 106). In dissent, Lauwers J.A. would have found Mr.

Le’sss. 8 and 9 rights were breached and he would have excluded the evidence under s. 24(2). [4] This appeal, therefore, presents several issues: (1) whether this encounter between the police and Mr. Le infringedhis right to be free from arbitrary detention; and (2) whether an invited houseguest enjoys a reasonable expectation of privacy while onthe host’s premises.

Further, depending on its determination of each of these issues, the Court may have to consider whether theadmission of the evidence obtained as a result of the police conduct in this case would bring the administration of justice into disreputewarranting its exclusion under s. 24(2) of the Charter. [5] We are content to dispose of this matter on s. 9 grounds. For the reasons that follow, the circumstances of the policeentry into the backyard effected a detention that was both immediate and arbitrary. This was serious Charter-infringing policemisconduct, with a correspondingly high impact on Mr.

Le’s protected interests. Indeed, it was precisely this sort of police conduct thatthe Charter was intended to abolish. On balance, the admission of the evidence would, in our view, bring the administration of justiceinto disrepute. We would, therefore, allow the appeal, exclude the evidence seized from Mr. Le, set aside his convictions and enteracquittals. II.

Overview of Facts [6] At approximately 10:40 p.m. on May 25, 2012, five young men, including the 20-year-old appellant and his hostL.D., gathered together in the backyard of L.D.’s townhouse, which is part of a Toronto housing co-operative (“L.D. townhouse”). Threepolice officers — Csts. Teatero, Reid and O’Toole — entered the backyard after the following sequence of events. [7] Cst. Teatero was speaking with the security guards who patrol the housing co-operative about a specific individual,N.D.-J.

He showed the security guards a picture of N.D.-J., asked them if they had seen him at their housing co-operative, and was toldthat they had not. Cst. Teatero testified that this meant his presence at the housing co-operative was no longer required for that purpose(A.R., vol. I, at p. 193). [8] The security guards, however, volunteered two pieces of information. First, that an unrelated individual, J.J., hadbeen seen at the back of the L.D. townhouse days or weeks earlier (A.R., vol. III, at p. 16).

Secondly, that the L.D. townhouse was, inone of the security guard’s opinion, a “problem address”, because “there were concerns of drug trafficking in the rear yard” (TJR, atpara. 11).

[ 9 ] Towards the conclusion of this conversation, Cst. Teatero was joined by two other officers — Csts. Reid and O’Toole — and they decided to go together to the rear of the L.D. townhouse. There, they observed five young men, including Mr. Le, in a small backyard. As they approached, they observed the young men who “appeared to be doing nothing wrong. They were just talking” (TJR, at para. 16). They also observed that a fence, which was described by the trial judge as “a waist-high wooden fence” (para. 14), surrounded the backyard.

The fence had an opening that allowed ingress into the backyard and then into the house. While the officers testified in a way that minimized the stature of the fence (calling it a “little two-foot fenc[e]” or a “little mini fence” (A.R., vol. I, at p. 196)), each acknowledged its significance. That is, all officers understood the backyard was private property that was part of a private residence and was not public property or a common area to the co-op (for Cst. Teatero, see A.R., vol. I, at p. 196; for Cst. Reid, see A.R., vol. III, at p. 45; for Cst. O’Toole, see A.R., vol.

III, at p. 164). [ 10 ] Nonetheless, without warning by way of gesture or communication to the backyard occupants, Csts. Reid and Teatero simply entered the backyard through the opening in the fence. Cst. Teatero asked them “what was going on, who they were, and whether any of them lived there”. Cst. Reid engaged in a similar line of questioning. Each of the young men were asked to produce identification. This common police practice of asking individuals who they are and demanding proof of their identities for no apparent reason has its own name. It is known as “carding” (Justice M. H.

Tulloch, Report of the Independent Street Checks Review (2018), at p. xi). [ 11 ] Rather than follow Csts. Reid and Teatero into the backyard, Cst. O’Toole initially patrolled the length of the fence to get a “better angle and better view of everybody” (A.R., vol. III, at p. 135). He testified that a few moments later he stepped over the fence to enter the backyard (A.R., vol. II, at p. 67). Cst. Reid thought he may have been patrolling the fence line for “officer safety . . . to keep a view of both [constables] and . . . the males [being] investigat[ed]” (A.R., vol.

III, at p. 80) and agreed in cross-examination that Cst. O’Toole jumped over the fence when he entered the backyard (A.R., vol. III, at p. 81). [ 12 ] Once inside the backyard, Cst. O’ Toole noticed one of the men sitting on a couch with his hands behind his back. He directed the young man to “put his hands in front of him, and th[e] individual immediately complied” (TJR, at para. 19). [ 13 ] Indeed, Cst. Teatero testified that Cst. O’Toole “yelled at him too to keep his – keep his hands where he can see them” (A.R., vol. I, at p. 230). Cst.

O’Toole was not the only one who ordered the young man to keep his hands visible. Cst. Teatero also did so. [ 14 ] At this point, Cst. O’Toole went towards the rear door of the house to question Mr. Le and his friend. After carding Mr. Le’s friend (who provided identification), Cst. O’Toole noticed that Mr. Le had a satchel slung across his body and that he appeared nervous, and “bladed” away from him (blading is a term of art used by police to refer to when they believe persons are angling their bodies in such a way as to conceal something — such as, in this case, the satchel). Cst.

O’Toole demanded identification from Mr. Le (who responded that he did not have any). When asked by Cst. O’Toole what was in the satchel, Mr. Le fled. Csts. O’Toole and Reid pursued, caught and arrested him on a nearby street. After the arrest, Mr. Le and his bag were searched, which led to the discovery of a loaded firearm and cash. Later, while being searched at the police station, he handed the police 13 grams of cocaine that he had in his possession. [ 15 ] Mr. Le was charged with 10 offences including the unlawful possession of a gun, cocaine for the purposes of trafficking, and proceeds of crime.

He pleaded not guilty and sought to exclude the evidence on the basis that the police acted unconstitutionally and breached his rights under ss. 8 and 9 of the Charter . [1] III. Judicial History [ 16 ] Since we are content with disposing of this appeal on the basis of ss. 9 and 24 of the Charter , there is no need to delve into the judicial history of s. 8 in this case. In what follows, then, we outline the judicial history on the ss. 9 and 24 issues only. A. Superior Court of Justice (Campbell J.) [ 17 ] In relation to s. 9 , the trial judge found that Mr. Le was first detained only when Cst.

O’Toole asked him about the contents of his bag. Prior to Cst. O’Toole’s inquiry, no officer had physically restrained Mr. Le or made any demand or direction to him; Mr. Le was not physically stopped or delayed by the officers; and Mr. Le believed he was free to leave. Further, and as to the arbitrariness of the detention, Cst. O’Toole reasonably suspected that Mr. Le was armed with a gun at the moment that he was asked about the contents of his bag because he appeared “nervous”, was “fidgeting” and was “blading” his body away from the officer.

Relatedly, the trial judge was also of the view that the implied licence doctrine authorized police entry onto the property. [ 18 ] The trial judge turned in the alternative to consider whether, had a breach occurred, the evidence would be admissible under s. 24(2) of the Charter and applied the framework established by this Court in R. v. Grant , 2009 SCC 32 , [2009] 2 S.C.R. 353. As to the seriousness of the Charter -infringing conduct, the trial judge held that any breach of the Charter in this case was “technical, inadvertent, and made in good faith”.

The impact of the Charter -infringing conduct was not “especially significant” because Mr. Le “did not make any inculpatory statements or provide the police with any incriminating evidence that they would not have discovered otherwise” (para. 107). Finally, society’s interest in adjudicating the case on its merits was significant — the evidence was reliable and formed an essential part of the Crown’s case. The Grant lines of inquiry, according to the trial judge, weighed in favour of admission. B.

Court of Appeal for Ontario (Doherty J.A., Brown J.A. and Lauwers J.A. (dissenting)) [ 19 ] Writing for the majority of the Court of Appeal for Ontario, Doherty J.A. dismissed the appeal and held that the trial judge did not commit any errors in the ss. 9 and 24(2) analyses. In support of the trial judge’s determination of when the detention arose, he held that Mr. Le’s “own evidence is significant” because “he believed he was free to leave the backyard after the police had entered and began questioning the young men”, meaning he did not believe he was detained (para. 62).

While recognizing that the determination of whether and when a person is detained is objective, he was of the view that individuals’ “perception that [they are] in fact free to leave

. . . must be an important consideration in determining” whether and when they are detained by the police (para. 63). Doherty J.A. furtherheld that Mr. Le’s perceptions are of particular importance because “he is no stranger to street-level encounters with the police”(para. 63). The trial judge’s conclusion that the detention was not arbitrary was not disturbed. [20] The majority also admitted the evidence, accepting that: any breach was “technical, inadvertent, and made in goodfaith”; its impact was minimal; the encroachment on Mr.

Le’s liberty interest was momentary; and the evidence was highly reliable andthe crimes very serious. [21] For three reasons, Lauwers J.A., dissenting, would have held that Mr. Le’s detention occurred at the moment thepolice entered the backyard. First, the police were uninvited, did not seek or obtain permission or consent to enter the backyard, had nogrounds for a warrant, and created a physical barrier blocking the exit.

Second, “the atmosphere the police created by their questioningwould lead a reasonable person in the appellant’s position to believe that he had no choice but to comply with their demands” (para. 141).Such an atmosphere arose not only because of the “pointed questions” that were put to the five young men, but also because the policedemanded one of them to keep his hands where they can be seen (para. 141).

Third, “the appellant’s young age, minority status, and hiscomparatively small physical stature” support a finding of detention at the moment the police entered the backyard (para. 142). [22] Applying s. 24(2) of the Charter, Lauwers J.A. would have found that the admission of this evidence would bringthe administration of justice into disrepute. The police conduct in this case constituted a serious Charter breach because the officersunlawfully entered private property on mere speculation regarding possible criminal conduct.

Further, the impact of the breach wassignificant because it led to the discovery of evidence that the police would not otherwise have discovered. While recognizing thereliability of the evidence and its importance to the Crown’s case, Lauwers J.A. was of the view, after balancing all of the relevantinquiries, that “the kind of casually intimidating and oppressive misconduct involved in the unlawful police entry into a private backyardmust be condemned by the court” (para. 163). IV. Analysis A.

Standard of Review [23] Before engaging in any analysis in this appeal, it is necessary to identify the applicable standard of review.Questions of law on an appeal attract a standard of correctness (R. v. Shepherd, 2009 SCC 35, [2009] 2 S.C.R. 527, at para. 18).Questions of fact attract a palpable and overriding error standard (para. 18).

The application of the law to a given factual matrix, that is,whether a legal standard is met, amounts to a question of law and attracts a correctness standard (Shepherd, at para. 20; Grant, at para.43). [24] In this judgment, we have respected, and used, the trial judge’s findings of fact to assess whether the lower courtswere correct in their assessment of when a detention occurred. Here, the timing of the detention turned on when a reasonable personwould perceive they were under compulsion and not free to leave.

An appeals court is entitled to have a different view of the impact thatpolice conduct would have on a reasonable person in the shoes of the accused. This is not, contrary to our colleague’s view, recasting therecord, but rather engaging in the same type of legitimate review routinely conducted by appeals courts across this country. B.

Section 9 of the Charter [25]

Section 9’s prohibition of “arbitrary detention” is meant to protect individual liberty against unjustified stateinterference. Its protections limit the state’s ability to impose intimidating and coercive pressure on citizens without adequate justification(Grant, at para. 20). Before the Charter, a person was not “detained” absent a “compulsory restraint . . . by due process of law”(Chromiak v. The Queen, (SCC), [1980] 1 S.C.R. 471, at p. 478).

Section 9 of the Charter changed this by altering thelaw’s conception of “detention” in a substantial manner.

Specifically, in Grant, this Court held that a psychological detention by thepolice, such as the one claimed in this case, can arise in two ways: (1) the claimant is “legally required to comply with a direction ordemand” (para. 30) by the police (i.e. by due process of law); or (2) a claimant is not under a legal obligation to comply with a directionor demand, “but a reasonable person in the subject’s position would feel so obligated” (para. 30) and would “conclude that he or she wasnot free to go” (para. 31). [26] Even, therefore, absent a legal obligation to comply with a police demand or direction, and even absent physicalrestraint by the state, a detention exists in situations where a reasonable person in the accused’s shoes would feel obligated to complywith a police direction or demand and that they are not free to leave.

Most citizens, after all, will not precisely know the limits of policeauthority and may, depending on the circumstances, perceive even a routine interaction with the police as demanding a sense ofobligation to comply with every request (see S. Penney, V. Rondinelli and J. Stribopoulos, Criminal Procedure in Canada (2nd ed.2018), at p. 83). [27] Having said that, not every police-citizen interaction is a detention within the meaning of s. 9 of the Charter. Adetention requires “significant physical or psychological restraint” (R. v. Mann, 2004 SCC 52, [2004] 3 S.C.R. 59, at para. 19; Grant, atpara. 26; R. v.

Suberu, 2009 SCC 33, [2009] 2 S.C.R. 460, at para. 3). Even where a person under investigation for criminal activity isquestioned, that person is not necessarily detained (R. v. MacMillan, 2013 ONCA 109, 114 O.R. (3d) 506, at para. 36; Suberu, at para.23; Mann, at para. 19). While “[m]any [police-citizen encounters] are relatively innocuous, . . . involving nothing more than passingconversation[,] [s]uch exchanges [may] become more invasive . . . when consent and conversation are replaced by coercion andinterrogation” (Penney et al., at pp. 84-85).

In determining when this line is crossed (i.e. the point of detention, for the purposes of ss. 9and 10 of the Charter), it is essential to consider all of the circumstances of the police encounter.

Section 9 requires an assessment of theencounter as a whole and not a frame-by-frame dissection as the encounter unfolds. [28] In this case, it is common ground that the young men were not “legally required to comply with a direction ordemand” by the police. This is important because it underscores that these young men were not legally required to answer the questionsposed by the police, produce their identification, or follow directions about where they could place their hands. The officers had no legalauthority to force them to do these things.

Therefore, our analysis in this case will focus on the second way a psychological detentionarises: whether a reasonable person, who stood in the appellant’s shoes, would have felt obligated to comply and would not have felt free

to leave as the police entered the backyard and made contact with the men. [ 29 ] There is no dispute, whether among the courts below or the parties to this appeal, that Mr. Le was detained at some point in the backyard. What we must decide is when this occurred and whether it was arbitrary. This is because the analysis of whether s. 9 of the Charter has been infringed proceeds in two stages. The first stage inquires into whether the claimant was detained at all. If that leads to the conclusion that the claimant was detained, the second stage of analysis inquires into whether the detention was arbitrary.

Both stages attract a correctness standard of review. [ 30 ] In our respectful view, the trial judge and the majority of the Court of Appeal for Ontario erred at both stages by concluding that the detention crystallized only when Mr. Le was asked what was in his satchel. Rather, he was detained when the police entered the backyard and made contact. Since no statutory or common law power authorized his detention at that point, it was an arbitrary detention.

(1) Timing of Detention [ 31 ] The sometimes murky line between general questioning (which does not trigger a detention — see Suberu ) and a particular, focussed line of questioning (which does) led this Court in Grant to adopt three non-exhaustive factors that can aid in the analysis. These factors are to be assessed in light of “all the circumstances of the particular situation, including the conduct of the police” ( Grant , at para. 31 ): (

a) The circumstances giving rise to the encounter as they would reasonably be perceived by the individual: whether the police were providing general assistance; maintaining general order; making general inquiries regarding a particular occurrence; or, singling out the individual for focused investigation. (

b) The nature of the police conduct , including the language used; the use of physical contact; the place where the interaction occurred; the presence of others; and the duration of the encounter. (

c) The particular characteristics or circumstances of the individual where relevant , including age; physical stature; minority status; level of sophistication. [Emphasis added; para. 44.] [ 32 ] As we explain below, each of these three factors support the conclusion that Mr. Le’s detention began the moment the police entered the backyard and made contact with the young men. (

a) Circumstances Giving Rise to the Encounter as They Would Reasonably Be Perceived [ 33 ] The circumstances giving rise to the encounter between the officers and the young men in the backyard of the L.D. townhouse support a finding of detention arising prior to Cst. O’Toole’s inquiry about the contents of the appellant’s satchel. [ 34 ] We accept that officers have wide powers to police communities and often do so by walking around. The conduct of the police in this case, however, exceeded the norms of community policing.

Not only did three police officers enter a small private backyard in which five young men were standing around, talking, and “appeared to be doing nothing wrong”, the officers immediately questioned the young men about “what was going on, who they were, and whether any of them lived there”. They also required the young men to produce documentary proof of their identities and gave instructions about where to place their hands.

It is common ground that the police had no legal authority to force the young men to do these things and the young men were under no legal duty to comply. [ 35 ] Based on the relevant considerations in Grant and the officers’ own evidence, the police were not called to the backyard to provide general assistance, maintain order, or respond to unfolding events. No assistance was requested or required by the young men and no specific complaint had been received from a third party about trespassing or any form of disturbance. No order needed to be maintained as the young men were “just talking”.

Nor were the police responding to any particular occurrence. The circumstances were simply that the officers themselves chose to walk to, and then into, that particular backyard. [ 36 ] The trial judge found (at para. 23) that the police officers had two specific investigative purposes: (1) the officers were investigating whether any of the young men were J.J. (or knew the whereabouts of N.D.-J.) and (2) the officers were investigating whether any of the young men were trespassers.

The trial judge would later note (at para. 70) that the police were pursuing a third investigative purpose as well: the L.D. townhouse was a “problem address” in relation to suspected drug trafficking. [ 37 ] These investigative purposes are important when assessing whether the detention was arbitrary and whether the police were acting in good faith. However, when determining whether a detention has occurred, the circumstances giving rise to the encounter are assessed based on how they would reasonably be perceived.

The subjective purposes of the police are less relevant in this analysis because a reasonable person in the shoes of the putative detainee would not have known why these police officers were entering the property. [ 38 ] Thus, the determination of the timing of the detention is not advanced by repeating that the police officers had “legitimate investigatory purposes”, “valid investigatory objectives”, “legitimate investigative aims”, “valid investigatory purposes” and were conducting a “legitimate investigation” (for example, see Moldaver J.’s reasons, at paras. 213, 237-39 and 242).

The legitimacy of any investigation in the context of s. 9 is measured against whether these objectives give rise to reasonable suspicion or not. We conclude that they did not and that the detention was therefore arbitrary. [ 39 ] On the facts of this case, there was no obvious cause for any police presence in the backyard and the police never expressly communicated to the young men why they were there.

For example, the police officers did not tell the occupants of the backyard that they were looking for J.J. or N.D.-J. [ 40 ] In such a situation, a reasonable person would know only that three police officers entered a private residence without a warrant, consent, or warning. The police immediately started questioning the young men about who they were and what they were

doing — pointed and precise questions, which would have made it clear to any reasonable observer that the men themselves were the objects of police attention ( R. v. Wong , 2015 ONCA 657 , 127 O.R. (3d) 321, at paras. 45-46 ; R. v. Koczab , 2013 MBCA 43 , 294 Man. R. (2d) 24, at paras. 90-104 , per Monnin J.A. (dissenting), adopted in 2014 SCC 9 , [2014] 1 S.C.R. 138).

Further, the police demanded their identification and issued instructions, which would have made it clear to a reasonable observer that the police were taking control over the individuals in the backyard. [ 41 ] Even if such conduct is seen as consistent with a concern over trespassing, the reasonable observer would understand that if the police simply wanted to make inquiries, the height of the fence allowed full interaction without entry. The officers could have simply asked their questions from the other side of the fence with an undiminished ability to see and hear any responses.

Instead, they entered the backyard without any consent, without an apparent or communicated purpose, and immediately engaged with the occupants in a manner that demonstrated they were not in fact free to leave. [ 42 ] Regardless of the intentions of the officers as they approached the backyard, or the legitimacy of their investigative purposes, a reasonable person would not perceive their entry into the backyard as merely “assisting in meeting needs or maintaining basic order” ( Grant , at para. 40 ). (

b) Nature of the Police Conduct [ 43 ] The nature of the police conduct takes into account many considerations. A distinctive feature of the police conduct in this case was that the police were themselves trespassing in the backyard. This bears on the question of whether the detention occurred before the officer asked Mr. Le what was in his satchel. Other considerations that influence the analysis include: the actions of the police and the language used; the use of physical contact; the place where the interaction occurred and the mode of entry; the presence of others; and the duration of the encounter. (

i) The Police Officers Were Trespassers [ 44 ] The police entered the property as trespassers. Our colleague accepts this conclusion. The judicially constructed reasonable person must be taken to know the law and, as such, must be taken to know that the police were trespassing when they entered the backyard (Moldaver J.’s reasons, at para. 257).

While not determinative, when the police enter a private residence as trespassers, it both colours what happens subsequently and strongly supports a finding of detention at that point in time. (ii) The Actions of the Police and the Language Used [ 45 ] The language used may show that the police are immediately taking control of a situation through loud stern voices, curt commands, and clear orders about required conduct. However, the power dynamic needed to ground a detention may be established without any of that.

In our view, in the overall circumstances of this case, the actions of the police and the language used supports a finding of detention when the officers entered the backyard and made contact with the men. [ 46 ] Our colleague makes much of the fact that the trial judge said that the police spoke “cordially” when they first entered the backyard. “Cordially” was the label chosen by the judge and was not a descriptor used by any witness. The only evidence comes from one of the young men who said that the police asked “how are you guys doing?” as they entered the backyard.

There was no evidence about the tone of voice employed, but only a recollection of the words used. [ 47 ] In our view, even accepting that there was a cordial greeting, the contemporaneous actions of the police and the language employed immediately after that statement illustrate the police were exerting dominion over the individuals in the backyard from the time of entry. In many instances, and this is one of them, actions speak louder than words.

The nicest of hellos could not mask the fact that the three persons entering onto this private property were uniformed police officers acting without permission, consent or legal authorization. Any momentary “cordiality” must also be placed in perspective and in the context of events as they actually unfolded. The language subsequently used by the police involved questioning the young men, asking for identification and telling one young man to keep his hands visible.

One officer said his partner “yelled” this instruction and the young man complied immediately. [ 48 ] Our colleague says we have changed the trial judge’s factual determination when we use the word “yelled” as the trial judge used the word “told” to describe the same encounter. This is not the case. We are quoting from the testimony of Cst. Teatero who stated: “I told him to keep his hands out and somebody – I think Constable O’Toole – yelled at him too to keep his – keep his hands where he can see them” (A.R., vol. I, at p. 230). The trial judge accepted this officer’s testimony in full.

The trial judge chose to use another word, at a different level of abstraction, to describe what the officer said. [ 49 ] There is no mischief here. Indeed, courts of appeal, including this Court, must be able to explain and expand on what has occurred or did not occur in a given case as long as there is an evidentiary foundation to do so on the record before them and the explanation or expansion does not contradict what the trier of fact has found. For example, a trier of fact may say that it was hot on a certain day.

Courts of appeal may expand on that description by pointing out that the temperature, according to accepted evidence, was 45 degrees. Similarly, a trier of fact may find that an event occurred at night. A court of appeal may provide more specificity by providing the actual time the event occurred. In both of these examples, the added explanation or expansion does not contradict what the trier of fact has found. The addition, in other words, does not overturn the findings of fact — it simply elaborates and provides more precision. Courts of appeal have access to a full evidentiary record for a reason.

We do not accept that providing more detail or precision undermines the fact finding functions of trial courts. (iii) The Use of Physical Contact [ 50 ] There is no evidence the police made any physical contact with the young men. There was, however, physical proximity: once the officers entered the backyard, there were eight people in a small space. Each of the officers positioned themselves in a way to question specific young men apart from the others. Lauwers J.A. observed that the officers positioned themselves in a manner to block the exit.

This type of deliberate physical proximity within a small space creates an atmosphere that would lead a reasonable person to conclude that the police were taking control and that it was impossible to leave.

(iv) The Place Where the Interaction Occurred and the Mode of Entry [ 51 ] There is an important relationship between the fact that this encounter took place at a private residence and the mode of entry employed by the police. The nature of any police intrusion into a home or backyard is reasonably experienced as more forceful, coercive and threatening than when similar state action occurs in public. People rightly expect to be left alone by the state in their private spaces.

In addition, there is the practical reality that, when authorities take control of a private space, like a backyard or a residence, there is often no alternative place to retreat from further forced intrusion. [ 52 ] The private nature of this backyard diminishes the significance of the trial judge’s observation that the nature of the police conduct was attenuated because Mr. Le was asked only for identification, was not delayed on his way anywhere, and had the freedom to either comply or “walk away”.

These were factors recited by this Court in Mann , at para. 19 , in describing circumstances in which a detention does not arise. But, the police conduct in Mann occurred on a downtown street, not at a private residence. In the circumstances of this appeal, t o where , precisely, was Mr. Le expected to “walk away”? And from what was he being “delayed” when he was socializing at a friend’s house?

In our view, such considerations have limited, if any, relevance when applied to police conduct at a private residence. [ 53 ] The mode of entry involved three uniformed officers suddenly occupying a backyard and taking control over the people in it late at night. Our colleague alleges we have mischaracterized the actions of the officers as they entered the backyard and how they would have been reasonably perceived. As one example, he points to the manner in which Cst.

O’Toole entered the backyard, insisting that the trial judge found nothing intimidating or potentially coercive in this action. [ 54 ] To be clear, Cst. O’Toole’s testimony was as follows: “I entered to the right, okay. I came – I didn’t come through the gate when I entered the yard. I stepped over the fence ‘cause that’s where I was” (A.R., vol. II, at p. 67). Whether he “went over”, “stepped over”, or “jumped over” the fence, we are simply explaining how Cst.

O’Toole entered the backyard on the basis of the police officers’ evidence. [ 55 ] However, where a trial judge concludes that this mode of entry was not intimidating or coercive, they are addressing how a reasonable person would perceive that act for the purposes of determining whether there has been a detention under s. 9 of the Charter . This is reviewable on a correctness standard.

We take, and are entitled to take, a different view of whether a reasonable person in the accused’s shoes would, based on this mode of entry, feel they were not free to leave and would feel obligated to comply with a police direction or demand. [ 56 ] The mode of entry would be seen as coercive and intimidating by a reasonable person. Two officers came in immediately. The fact that a third officer first walked the perimeter before entering over the fence would convey to a reasonable person that there was a tactical element to the encounter. Further, a reasonable person would interpret Cst.

O’Toole’s decision to enter by coming over the fence as demonstrating a sense of urgency. In these circumstances, we accept the submission of the intervener the Scadding Court Community Centre that the use of such tactics by the police to enter a private residence communicates an exercise of power and would be so understood by a reasonable person. [ 57 ] In viewing these actions as tactical, we are not, as our colleague suggests, recasting the record.

We are simply articulating how the entry would be reasonably perceived — which is what this Court did in Grant when it held that the taking of tactical positions by police supports a finding of detention. Significantly, the trial judge in Grant did not mention tactical positioning at all. This Court, however, did not hesitate

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