R v Omar – Using Social Context to Inform Arbitrary Detention Rules
On May 23, 2019, the Supreme Court of Canada (“SCC”) released its decision on R v Omar, 2019 SCC 32 [Omar SCC], which considered whether the Ontario Court of Appeal (“ONCA”) had erred in excluding evidence under s. 24(2) of the Charter. Omar dealt with an arbitrary detention and subsequent search and seizure that resulted in the finding of a gun and cocaine. The accused was subsequently charged with several firearms offences and possession for the purpose of trafficking.
Despite finding that the police had no reason to stop the respondent or Smith and ask for ID, based on her findings that the police officers who stopped Mr. Omar had acted in good faith and, therefore, their Charter-infringing conduct was not serious, the trial judge refused to exclude the evidence under s. 24(2). At the ONCA, in R v Omar, 2018 ONCA 975 [Omar ONCA], Justice Sharpe, writing for the majority, found that this case was similar to R v Grant, 2003 SCC 32 [Grant], which considered the arbitrary detention of a black male and found that similar conduct moving forward would be less justifiable by police officers (Grant, para 133). On this basis, Justice Sharpe concluded that the trial judge erred in assessing the seriousness of the police’s Charter-infringing conduct and attributing it to good faith, and that “to admit the evidence would be to condone ignorance of Charter standards” (Omar ONCA, para 61). Justice Brown disagreed with the majority and issued a strong dissent. On appeal to the SCC, in three short paragraphs, the SCC adopted Justice Brown’s dissent and restored the convictions.
At around 1 a.m. in the morning, Mr. Omar and his acquaintance, Morpheu Smith, were walking down the street in Windsor, Ontario, in a quiet area of the town. Two officers had been on duty, on the lookout for a white male, 5’7, 200 lbs, who had robbed two Mac’s Milk stores a week earlier while armed.
The respondent was a black male of slight build. When the officers noticed the respondent and his acquaintance walking down the street, they stopped them and shone an “alley” light at them. The record suggests it was only at this time that the officers realized the respondent was a black male. After shining the light, the officers asked, “Hey guys what’s going on?” They then got out of the patrol car, approached the men, and asked for their IDs. Only the respondent had ID. He gave it to the officer, who ran the information through the Canadian Police Information Centre. The second officer then proceeded to ask the respondent a series of questions, including “What are you up to?” and “Where do you live?” The officer also directed the men to keep their hands out of their pockets. Upon giving this direction a second time, the officer spotted the barrel of a gun in the respondent’s pocket and tackled him, placed him under arrest, and searched him, finding ammunition. A later search revealed that the respondent was also in possession of cocaine.
The trial judge found that, at minimum, the respondent had been detained unlawfully from the time he was asked for his identification, as there was no reasonable suspicion for the stop.
Justice Brown, in his dissenting judgment, strongly disagreed that the police had acted ignorantly or that their conduct fell on the serious end of the spectrum as it relates to the test for s. 24(2). In his opinion, Justice Brown focussed on the uncertainty of law and the difficulty involved in assessing when a psychological detention manifests during police interaction with the public.
Missing from Justice Brown’s analysis is an examination of the social context—particularly the history of systemic discrimination against black men. Had evidence of this context been provided and meaningfully engaged with, I believe Justice Brown and the SCC’s decisions may have changed.
The uncertainty of law
Justice Brown disagreed with the majority’s finding that the facts of this case were clearer than Grant. He notes that, despite Grant, “it is not always easy to determine in given circumstances whether and when [a detention] legally occurs” (Omar ONCA, para 76).
In comparing Grant and Omar, Justice Brown looked at the SCC majority’s judgment in Grant to pinpoint when exactly the detention occurred:
“the encounter developed into one where Mr. Grant was singled out as the object of particularized suspicion, as evidenced by the conduct of the officers. The nature of the questioning changed from ascertaining the appellant’s identity to determining whether he had anything that he should not.” (Grant, para 49) [emphasis added by Justice Brown]
While Justice Brown emphasized the latter sentence, I would emphasize the first instead. The questioning does not need to be as explicit as it was in Grant. In considering what “a reasonable person would conclude by reason of the state conduct that he or she had no choice but to comply” (Grant, para 44). R v Le, 2019 SCC 34 [Le], made clear that race forms part of the analysis. Once an officer stops you, takes your ID, and asks questions about your identity and intentions, the inference for many black folks is that the officer already suspects that you have or have done something that you “should not” have. As recognized in the Ontario Human Rights Commission 2017 Report on racial profiling [OHRC Report], many black folks have “feelings of fear/trauma…lack of trust and expectations of negative police treatment” (OHRC Report, 25) when interacting with police because they “are much more likely to have force used against them by the TPS that results in serious injury or death” (OHRC Report, 37). This is not a new finding. It is also a finding the SCC did not shy away from recognizing in Le. Acknowledging this information in Omar would have provided an opportunity for the court to say police should know better, and do better, in their interactions with black men. It would helped the SCC to develop a solid framework going forward, based on the understanding that when a young black male, walking down the street at 1 a.m., is stopped for no reason and has their ID taken, they are likely to feel as though they have been detained.
Furthermore, Justice Brown noted that Grant was distinguishable, as some key events in Grant did not occur in Omar. Justice Brown referenced the tactical positioning that occurred in Grant and specific line of questioning regarding whether the accused “had anything he should not” or whether he “had committed a crime” (Omar ONCA, para 91).
In his decision, Justice Brown stressed that context is crucial (Omar ONCA, paras 85-86, 92, 95). Yet comparing the events of Grant to those of Omar neglects other important contextual factors, such as the history of relations between the police and the black community.
These findings should dramatically increase the “seriousness” of the actions by the police. Police should a) know better and b) not be given leeway to detain individuals without cause as it places minorities at a heightened risk.
Shaping police interaction with the public
Had the SCC adopted the ONCA majority judgment, it would have read as simply as: stop detaining black men without cause.
In his analysis, Justice Brown noted that the Charter does not require that police abstain from interacting with the public. Since the police have the authority to interact with the public, Justice Brown argued that it would be difficult for officers to know when an interaction turns into a detention. Although Justice Brown stated that this is a complex evaluation, the respondent’s comment that “he was ‘scared’ and that, particularly as a racialized individual, he did not think he could simply walk away from the police and feared he would be shot if he did” (Omar ONCA, para 18) offers significant insight. The sentiments expressed by the respondent have been recorded in history time and time again. Social context helps us go beyond a straightforward assessment of tactics, and to understand the impact that knowledge and history may have. It would have served the SCC well to be presented with this evidence.
This does not mean that officers in this case or others would not have been able to interact with black men. It means officers should take it upon themselves to understand social context in determining whether a reasonable person would feel psychologically detained. If officers do not intend on detaining an individual then, as the ONCA majority judgment noted, they can inform the individual that they can “leave, refuse to provide identification, or decline to answer…questions” (Omar ONCA, para 42) or they can make a purposeful decision to detain someone and inform them of their s. 10(b) rights.
The Honourable Michael Tulloch, in his Report of the Independent Street Checks Review [Tulloch Report], suggested that in moving away from arbitrary detentions “officer[s] should be required to articulate why requesting information is necessary to the inquiry” (Tulloch Report, 117). If there is no need for this information then police officers should not ask for it. I would agree with this.
Justice Sharpe, writing for the majority of the ONCA, made the right judgment. Looking at social context means acknowledging that “there are confirmed court and tribunal findings of racial discrimination in T[oronto] P[olice] S[ervice] officer use of force” (OHRC Report, 30) and holding police to higher standards.
It is unclear why the SCC, having decided R v Le just a little while earlier, did not take into account the same social science research. Going forward, the responsibility lies with counsel to bring forward these reports. Had the SCC adopted the ONCA majority judgment, it would have been a powerful response in limiting the “disregard [by police] for well-established law limiting police powers” (Omar ONCA, para 3) and offered better protection for the rights guaranteed by section 9 of the Charter.