Criminal Law

Supreme Court reminds police of arbitrary detention rules

By Paul Russell, AdvocateDaily Contributor

A recent court decision should remind police that they cannot just walk onto someone’s property and demand to see identification or randomly detain someone they believe is involved in illegal activity, says Toronto criminal lawyer Melody Izadi.

“Being arbitrarily detained, questioned or carded is a very real thing that happens every day in many racialized neighbourhoods in Toronto and other communities,” says Izadi, an associate with Caramanna, Friedberg LLP.

“The privileges and protections offered by the Charter are for everyone, no matter your skin colour or what neighbourhood you happen to live in,” she tells AdvocateDaily.com.

Izadi cites a Canadian Press story about a 20-year-old Asian-Canadian man who was chatting with four young black men in the backyard of a community housing complex in Toronto one night when police officers showed up.

Two officers entered the yard without consent or a warrant and began asking questions and requesting identification from the men, the story states, while a third officer stepped over a low fence and asked the 20-year-old man about the contents of a satchel he was carrying. The man fled but was apprehended a short distance away, where police found a loaded handgun, cocaine and a considerable amount of cash in his bag.

The trial judge ruled police legally detained the man, who unsuccessfully challenged the conviction in the Ontario Court of Appeal. He took the case to the Supreme Court, with the high court ruling the actions of police amounted to arbitrary detention and a violation of the man’s rights.

“I think the Supreme Court made the right decision,” Izadi says. “Entering anyone’s backyard without a warrant and essentially harassing the people there is simply not the way our law enforcement agencies should operate.”

She says it is noteworthy the Supreme Court was unanimous in declaring the rights of the detained suspect had been breached, especially after two lower courts failed to reach that conclusion.

“It’s surprising the lower courts didn’t find his arrest to be a breach of his Charter rights,” Izadi says.

The judgment states, “The public’s faith in the police rests in part on their belief that the police will not intrude unnecessarily on their property and privacy rights. As such, the police should always be mindful of and respect the owner/occupier’s rights. Doing so is essential to fostering public trust in the police.”

The ruling also references the ongoing tension between police and members of certain ethnic communities and lower-income areas.

“We have arrived at a place where the research now shows disproportionate policing of racialized and low-income communities … another example of a common and shared experience of racialized young men: being frequently targeted, stopped, and subjected to pointed and familiar questions,” court documents read.

Izadi says this verdict should be a wake-up call to police forces across the nation.

“I think this will send the message down through the ranks that this type of behaviour is intolerable, though it is regretful that it had to be appealed up to the highest court to get resolved,” she says, adding that the actions of the police should always be in accordance with the Charter.

“There are so many socially constructed ideas about who is a criminal and who is not, and who is deserving of Charter protection,” Izadi says. “The reality is that if it were a group of white men in the backyard having a barbecue wearing dress shirts, it is pretty unlikely the police would have just marched in and started asking questions.”

She says it is significant that the Supreme Court reinforced the notion of what arbitrary detention entails.

“With this ruling, I think the most learned judges in our country are reminding law enforcement agencies about the importance of respecting everyone’s rights to privacy and due process,” Izadi says.

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