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Charter Rights and Private Property: Police Trespassing

By October 20, 2021No Comments

In May 2019, the Supreme Court of Canada decided an important case on police powers and personal property rights. This ruling stems from R v Le, a case about five young men in a disadvantaged Toronto neighbourhood. The Court weighed whether the police rightfully crossed into the backyard to question a group of men minding their own business.

The five men were sitting in a fenced yard when police officers approached. Police walked through the fence, even though the men had not done anything wrong. The police began to question the group and ask for their identification. When officers began questioning Mr. Le, he ran from the police. When Le was caught, he was found with drugs, cash, and a firearm. Mr. Le was convicted based on the evidence police gathered. On appeal, the defence argued that the evidence against Le should have been excluded because police infringed his Charter rights. Ultimately, the Supreme Court ruled that the police actions amounted to an infringement of Mr. Le’s section 9 Charter rights. Furthermore, the Court created guidelines for police interacting with minority groups and searching private property.

Can Police Enter Private Property?

Everyone has the right under the Charter to be free from unreasonable searches. This means that police cannot enter private property without authorization. Authorization can come in different forms. For example, police can get permission from the resident, or they can have legal authority (i.e. if they have a search warrant).

In R v Le, police were close to the scene because they were investigating an unrelated case. In questioning the security guard at that address, the guard mentioned that the men’s townhouse had a lot of problems. This information prompted the police to enter the backyard and begin questioning the occupants. The police did not ask the resident’s permission and they had no reason to enter the property. When police do not have permission, they are trespassers, just as when a regular person enters without permission.

The neighbourhood Mr. Le was visiting was known to have a history of crime, including drug and gang violence. However, the Court noted that living in a high-crime neighbourhood does not reduce someone’s right to enjoy their property. Similarly, police do not get more investigative power because there are working in a high-crime neighbourhood. Regardless of the community, all people have the right to enjoy their property. Therefore, the court found that the police had no right to enter the backyard where Mr. Le was visiting with his friends.

Can Police Detain Me Without a Reason?

The Charter provides that everyone has the right not to be arbitrarily detained. This right means that police cannot detain someone without a reason. Unless you are under arrest, the police have only a limited power to hold you. However, many citizens may not know about their Charter rights and may feel obligated to listen. For this reason, sometimes it is unclear if someone has been detained.

To determine if a person was detained, courts look at whether someone in the accused’s shoes would feel like they had to comply. In Le, the Supreme Court said that the accused’s prior experiences should be considered when determining whether there was a detention. This finding is important because of how racism affects interactions between police and community members.

Racial profiling continues to be a problem in Canada. People who have had previous negative police interactions may more readily believe they are detained or they are not free to leave. Likewise, people stopped by the police on prior occasions may believe they are required to comply. The Court also recognized that the over-policing and carding of minority groups without reason is more than an annoyance and has a significant impact on a person’s health and opportunity.

The Court in Le ruled that the police officers’ actions pointed to arbitrary detention. Upon entering the backyard, police took control by requesting identification and ordered the men to keep their hands visible. Entering a private backyard was a show of force that exceeded what is expected of community policing. Although Mr. Le may have been legally free to leave, his experience as a young minority person made him believe he had to comply.

What Are The Reasons for Detention?

One reason the police might detain someone is for “investigative purposes.” Detention for investigative purposes is used when a crime has occurred. This detention is permitted because it allows the police time to gather the necessary information to solve a crime. However, this power is not endless. Police are also limited in the amount of time they can hold someone for questioning. Although the police claimed they had detained Mr. Le for investigative purposes, nothing had occurred at the residence that would justify this detention. The Court clarified that to hold someone for investigative purposes, there must be a clear link between the person and a recent crime.

Can Police Search Me Without a Reason?

Police cannot search anyone unless they have a valid reason. Valid reasons for a search include a search warrant, or just after arrest (known as a search incident to arrest). Similar to detention, police also have a limited power to search for investigative purposes. When searching for investigative purposes, police can only conduct a “pat-down.” Police cannot force people to empty their pockets when searching for incidents in an investigation. The purpose of this search is to ensure a person doesn’t have anything that would endanger the police or the public.

During the questioning of Mr. Le and his friends, the police asked Mr. Le what he had in his bag. Mr. Le was not required to provide this information because the police had no legal reason to enter the backyard or to ask about his belongings.

What Happens if my Charter Rights are Violated?

If the police violate your Charter rights, your lawyer can apply to have the evidence excluded. Only evidence obtained through the police’s violation is eligible for exclusion. Furthermore, when a Charter right is violated, the evidence is not automatically thrown out. The court will look at several factors including the seriousness of the charges and how seriously the police violated the person’s Charter rights.

In Le, the police would not have found the evidence against Mr. Le if they had not trespassed on private property. The Court found that the police had knowingly entered the occupant’s property without permission. The police began to interrogate the group when they had no reason to believe they had done anything illegal. The Court also found police had been aggressive and took control over the groups’ movements as soon as they entered the yard.

People’s homes are private and should be protected from interference. Police should not be allowed to interfere with people and their property whenever they want. For these reasons, the Court excluded all evidence, Le’s conviction was overturned, and he was acquitted on all charges.


Through R v Le, the Court condemned police actions that infringe on personal property rights. This decision helps hold police accountable, limiting police power to interfere without reason. This decision is also an important step forward for minority groups. Police officers need to recognize how racial profiling and over-policing in racialized communities shape the community’s interaction with the police.

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