Case on privacy rights headed to SCC

An Ontario case headed to the Supreme Court will focus on whether guests in a backyard have a reasonable expectation of privacy in police searches.

The Supreme Court decision could have wide-ranging effects for people who currently do not have standing to challenge a search or detention when they are an invited guest on a property, say lawyers. A factum filed by the appellants in Tom Le v. Her Majesty The Queen addresses the question of whether invited guests at backyard gatherings have a right to be left alone by the state.

“Richer people can essentially purchase their privacy, in terms of building taller fences, walls, gates. People in poverty don’t have that same ability,” says Emily Lam, a partner at Kastner Law and one of the lawyers representing Le.

“If privacy rights are linked to ownership and control, that means that people living communally or in social housing might not get the same privacy protection as more affluent people.”

The case, which will be heard by the SCC on Oct. 12, revolves around Le, who in 2012 was visiting friends in a fenced backyard at the Atkinson Housing Co-operative, a subsidized housing complex in Toronto.

Andrew Furgiuele, trial and appellate counsel at Doucette Santoro Furgiuele, who was not involved in the case, says the matter is one to watch.

“Now there is a realistic chance that [the reasonable expectation of privacy] could change,” says Furgiuele.

The factum said that police did a “walk-through” of the common area around the edge of the backyard, looking for two people that were neither Le or his friends.

The police “started questioning the young men in the backyard, asking who they were, if they lived there, and what was going on.” When questioned, Le ran and two officers tackled him to the ground nearby. The police found a gun, cash and 13 grams of crack cocaine on Le’s person and in his bag, the factum said.

Before the Court of Appeal, justices David Doherty and David Brown upheld the trial judge’s analysis, writing in the January decision that they would dismiss Le’s appeal, adding that any breach was “technical, inadvertent, and made in good faith” while the “evidence was highly reliable and the crimes very serious.”

“[T]he trial judge had to evaluate the witnesses’ credibility. He found that the police officers were credible, the appellant was a liar, and some parts of the evidence of the other four young men were inaccurate,” Doherty wrote.

Justice Peter Lauwers dissented, writing that he would allow the appeal, quash the appellant’s convictions and enter acquittals on all counts. 

“The police entry was an unlawful trespass and this tainted everything that followed,” Lauwers wrote. “I doubt that 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 racialized community.”

Samara Secter, an associate at Addario Law Group and one of the lawyers representing Le, says the case “is really about the competing interests of community policing versus privacy rights.”

“I think [the pair of major issues] plays out in two ways in the case. The first is the question about whether an invited guest in a backyard gathering has a reasonable expectation of privacy,” she says. “And then the second issue that is underlying the entire case is whether Charter rights are being applied as thoroughly to marginalized people as they are to other individuals, because this case revolves around racialized youth in a social housing context.”

A second, unrelated case, R. v. Szilagyi, 2018 ONCA 695, also deals with Charter rights and police search, says Andrew Menchynski, who represented appellant George Szilagyi before the Court of Appeal for Ontario. The decision allowed the appeal, set aside the conviction and entered an acquittal, concluding that evidence obtained in the police search must be excluded “in order to uphold the repute of the administration of justice.”

At issue in that decision was whether police “acted in good faith” in obtaining the search warrant and arresting the appellant.

According to the appeal decision, published Aug. 24, Szilagyi was charged with drug-related offences “after police executed a search warrant for his residence for the purpose of finding an unlicensed firearm and ammunition.”

“There was neither a firearm nor ammunition, but the police found and seized illegal drugs, cash, and a cellphone in the residence,” said the decision, which also said that Szilagyi was arrested outside his home in London, Ont.

The warrant to search Szilagyi’s home was based “almost entirely” on tips provided by two confidential informants, wrote Justice Kathryn Feldman, who wrote the appeal decision, with justices Mary Lou Benotto and Harriet Sachs concurring. One of the informants was “untested and unproven,” and that person’s tip was uncorroborated. Furthermore, Szilagyi alleged on appeal, the police drafted an “intentionally confusing” request for a warrant, which “gave the misleading impression that the [informant] was credible and had no criminal convictions.”

The trial judge found that the police acted in good faith, because they sought and obtained a warrant and the officer has since changed his practice of omitting informants’ full criminal record. But the Court of Appeal disagreed.

“In this case, the trial judge concluded that the police officer was acting in good faith. A conclusion as to good faith cannot be grounded on a lack of bad faith. The trial judge was incorrect to equate a lack of bad faith on the officer’s part to good faith conduct,” Feldman wrote, adding in later paragraphs: “It was an error by the trial judge to mitigate the seriousness of the police conduct by characterizing it as good faith, even if the police did not have the specific intent to mislead.”

Rick Visca, who represented the Queen, says that although the case was a very focused appeal on one aspect of the tests around Charter rights, the R. v. Szilagyi, 2018 ONCA 695 decision is really a discussion about principles established in earlier cases. He says the decision does not suggest, for instance, that an informer’s full criminal record has to be disclosed to an issuing justice.

“The court is saying, ‘This is why the justice ought not to have issued the warrant.’ In my view, the police may be criticized where they perform warrantless searches where they act on their own . . . but they’re not to be criticized for the same degree when they present information to a legal officer for their consideration,” Visca says.

Menchynski says the Court of Appeal makes it clear police don’t “get credit for doing what is expected,” such as applying for a warrant or for being honest in their warrant application. Plus, Menchynski says, even when the police apply for a warrant, evidence may be excluded where the grounds for a search are weak or if police make some omissions or mistakes in their application, even if these mistakes or omissions are not done in “bad faith.”

“Just because the police applied for a warrant and did not intentionally or negligently mislead an issuing justice does not automatically mean that they were acting in ‘good faith,’ Menchynski says.