Class aptent taciti sociosqu ad litora

Does ‘Control’ Determine Privacy Rights?

  • August 30, 2018
  • Clayton Rice, K.C.

On April 20, 2018, Toronto criminal lawyers Emily Lam and Samara Secter filed the appellant’s factum in the Supreme Court of Canada in a case styled as Tom Le v The Queen, Court File No. 37971. The factum is anchored in ss 8 and 9 of the Charter of Rights by this opening sentence: “This is yet another case involving police officers and marginalized youth.” Here’s the story.

On May 25, 2012, Le was socializing in the backyard of a townhouse in the Atkinson Housing Co-operative in Toronto owned by the mother of Le’s friend, Leraldo Dixon. The subsidized housing project is often crawling with police officers asking people for identification. On this evening, three officers were looking for two people when a security guard pointed them to an area with a drug problem. The officers took a public footpath to the Dixon residence where two of them walked into the fenced backyard through an open gate. The shakedown began: “How are you guys doing.”

One of the officers stayed outside the fence. He thought Le was “blading” his body – positioning himself to obstruct the officer’s view of his hip. Le had a bag slung over his shoulder. The officer jumped the fence: “What’s in the bag?” Le bolted. A brief foot chase ended when the officer caught him and won an all-out fight. The arrest and subsequent searches yielded a loaded handgun, cocaine and some cash.

Le is Asian. His four friends, including Leraldo who was also in the backyard, are all black.

On April 1, 2014, Le was convicted of drug and firearm offences after his evidence exclusion motion was dismissed by Justice K.L. Campbell of the Ontario Superior Court of Justice in a ruling reported as R v Le, 2014 ONSC 2033. He was sentenced to five years imprisonment. Justice Campbell held, at para 66, that the police were justified in entering the backyard under the implied licence doctrine.

On January 25, 2018, a 2-1 majority of the Ontario Court of Appeal dismissed Le’s appeal reported as R v Le, 2018 ONCA 56. Writing for himself and Justice David M. Brown, Justice David H. Doherty held, at para 30, that the difficulty with the implied licence doctrine in this case is that the police did not have to enter the backyard to contact the occupiers. They were on the other side of the fence. However, Justice Doherty concluded, at paras 57-8, that Le did not have an objectively based reasonable expectation of privacy under the test for a territorial privacy claim in R v Edwards, [1996] 1 SCR 128. Justice Doherty wrote, at para 41: “The appellant had no possession or control of any kind over the backyard. There was no evidence of the appellant’s historical use of, or connection with, the property. The appellant had no means by which to regulate access to the property. He was, as the trial judge indicated, ‘a mere transient guest in the Dixon backyard’ [ ].”

In dissent, Justice Peter D. Lauwers characterized the police entry, at para 81, as intimidating and oppressive. It was an unlawful trespass that tainted everything that followed. The officers did not have a warrant, they did not ask for permission to enter the property, they did not intend to knock on the door, they were not in pursuit of a suspect and there was no emergency. What were they doing, then? They were on a fishing expedition. As Justice Lauwers wrote, at para 110: “[T]he police [intended] to conduct a random investigation of the backyard’s occupants [ ] who were not specifically identified as suspects in any crimes, and who were not engaged in criminal conduct.”

Justice Lauwers went on to hold, at paras 127-8, that Le’s “invited presence alone is sufficient to give rise to a reasonable expectation of privacy.” As former Chief Justice Beverley McLachlin, writing for the majority in R v Marakah, [2017] 2 SCR 608, noted at para 38, “control is not an absolute indicator of a reasonable expectation of privacy nor is lack of control fatal to a privacy interest.” Justice Lauwers concluded that the majority opinion must be rejected as inconsistent with “ordinary life” in a democratic society for two reasons, at para 128: “[T]he 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.”

Justice Lauwers would have excluded the drugs, firearm and cash from evidence under s 24(2) of the Charter commenting, at para 162, that he doubted “the police would have brazenly entered a private backyard and demanded to know what its occupants were up to in a more affluent and less radicalized community.”

And that takes me to my focus here on the normative underpinnings of s 8 of the Charter. The analysis in Le’s factum hits the springboard this way, at para 5: “Canadians do not give up their right to be left alone by the state when they leave their own residences to visit the homes of their friends. Although invited guests at another person’s home cannot control entry by others to the same extent they can in their own homes, this is not dispositive in the privacy analysis. The majority’s approach – which was to treat ‘reasonable expectations of privacy in respect of real property’ as contingent on the ‘ability to control those who can enter’ – is a repackaging of the ‘risk analysis’ rejected by this Court thirty years ago in Duarte. It should not be revived.”

Although the appellant also argues that the subject of the search was not exclusively territorial (the police were really after information about Le and his bag) and that the proprietary based Edwards test must be reassessed in light of the Supreme Court’s recent jurisprudence (or purposively applied by shifting the emphasis from control to presence), the core of the appellant’s normative submission is put this way, at para 22:

“The ability to socialize with friends in private spaces without state interference is vital to citizens’ growth, the maintenance of society, and a free and healthy democracy. It ensures a zone of safety in which we can share personal information with the people that we choose, and still be free from state intrusion. Recognizing a right to be left alone in private spaces to which we have been invited is an extension of the principle that we are not subject to state interference any time we leave our own homes. The right allows citizens to move about freely without constant supervision or intrusion from the state. Fear of constant intrusion or supervision itself diminishes Canadians’ sense of freedom.”

Privacy means more than control. Professor Stephen J. Schulhofer of New York University, School of Law, put the point this way in The Fourth Amendment in the Twenty-first Century: More Essential Than Ever (2012), at pp 13-4: “[A]s a precondition for well-developed political expression and association, privacy is intimately connected to freedom of speech. Government spying may not worry the average citizen who reads best selling books, practices a widely accepted religion and adheres to middle-of-the-road political views. But no one doubts that surveillance can have an inhibiting effect on those who are different, chilling their freedom to read what they choose, to say what they think, and to join with others who are like minded. [T]he Fourth Amendment grew out of bitter experience in the suppression of political dissent. It was designed to assure outsiders some breathing room by creating a buffer between them and the power of the state. Human rights conventions applicable throughout the world endorse the same principle, insisting that safeguards for privacy and personal security are indispensable prerequisites for individual freedom and democratic government.”

Privacy is a democratic principle that has profound implications for social organization. For privacy has a spiritual dimension. Experiencing solitude makes us more fit for social participation and better suited for contribution to the shared pool of mankind’s intellectual wealth. Thirty years ago, in R v Dyment, [1988] 2 SCR 417 Justice Gerald La Forest said this, at pp 427-8: “[G]rounded in man’s physical and moral autonomy, privacy is essential for the well-being of the individual. For this reason alone, it is worthy of constitutional protection, but it also has profound significance for the public order. The restraints imposed on government to pry into the lives of the citizen go to the essence of a democratic state.”

What of those restraints? All undermined when law enforcement and other agents of the state have little incentive to comply with the constitution. “The majority’s reasons,” the appellant submits at para 29, “are an invitation to violate the Charter. As one American writer put it, the police ‘have everything to gain and nothing to lose if they search under circumstances where they know that at least one of the potential defendants will not have standing’.” (See: Eulius Simien Jr., The Interrelationship of the Scope of the Fourth Amendment and Standing to Object to Unreasonable Searches (1988), 41 Ark L Rev 487, at p 539)

This is a factum, then, that pins the test for standing right where it should be – on people; not places. It is a factum twenty-two years in the making.

Le’s appeal will be argued on October 12, 2018.

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