A senior Ontario judge has called out Toronto police officers who arrested a man on gun and drug charges for “casually intimidating and oppressive misconduct,” and wondered if their actions would have been different in a whiter and wealthier neighbourhood.

The criticism came in a dissenting opinion from Ontario Court of Appeal Justice Peter Lauwers, who recently disagreed with his two colleagues on a panel hearing the appeal of Tom Le, convicted in 2014 of firearm and drug-related offences and sentenced to five years in prison.

Lauwers’ colleagues — Justices David Doherty and David Brown — upheld Le’s convictions. The split decision means Le has a right to appeal to the Supreme Court of Canada without first having to seek permission.

“We’re seriously considering an appeal to the Supreme Court,” said his lawyer, Emily Lam.

Le, 20 years old at the time, was arrested carrying a fully loaded, semi-automatic Ruger pistol, cocaine and “considerable cash,” the Appeal Court said.

He and friends had been sitting in the townhouse backyard of another friend at the Atkinson Housing Co-operative in Alexandra Park. Aside from Le, who is Asian, the other four men are Black, Lauwers noted in his dissent.

Three police officers in the area that night were looking for two wanted individuals known to be involved in violent crimes. A security guard for the housing complex said one of the wanted men hung around behind the home where Le and his friends were spending time that night.

“The backyard was surrounded by a waist-high wooden fence. There was an opening in the fence where the walkway was. There was no gate,” Doherty wrote for the majority.

“The officers saw five young men, once of whom was the appellant, sitting in the backyard talking. According to the police, the young men were simply talking and not doing anything wrong. The officers did not recognize any of the young men.”

Two of the officers walked through the gateway without asking permission, with one of them addressing the young men by asking, “How are you guys doing?” Doherty wrote, and asked if any of them lived in the townhouse. When one of the men said he lived there with his mother, an officer asked for identification, and Le was soon asked to show ID as well.

When an officer became concerned Le might have a weapon in his bag and asked what was in it, Le fled but was soon apprehended.

Doherty concluded that Le’s right to be free from unlawful search and seizure had not been violated, saying he had no reasonable expectation of privacy because as an invited guest, he could not legally prevent the police from accessing the property.

In his 29-page dissent, Lauwers concluded that several of Le’s charter rights had been violated and the evidence should have been tossed as a result.

“Perhaps the officers were emboldened by the sense they were doing the right thing in trying to root out criminality in the community. They seem to have assumed the young men in the backyard were up to no good and decided to confront them suddenly,” 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.”

He concluded the police entry “was an unlawful trespass and this tainted everything that followed,” noting the officers did not have the townhouse occupant’s consent to enter the backyard. He called the entry no more than a “fishing expedition.”

“From the unlawful entry flow the arbitrary detention, the flight, the arrest, the search, and the finding of the evidence — the gun, the drugs and the money. The intimidating and oppressive police entry operated to arbitrarily detain those present in the backyard including the appellant,” Lauwers wrote.

“The kind of casually intimidating and oppressive misconduct involved in the unlawful police entry into the backyard must be condemned by the court.”

One of the officers had testified at trial they were asking the men questions to investigate whether they were trespassing, but Lauwers wrote that “there was no trespassing complaint to which the police were responding.”

The judge found Le had been arbitrarily detained by the police when they arrived on the property.

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“The police were asking pointed questions. It was not a casual conversation. This was not an atmosphere where the young men had any freedom of movement,” Lauwers wrote.

“The appellant says this created an atmosphere of detention. I agree. The suggestion that the appellant was free to leave simply has no reality to it … The appellant’s young age, minority status, and his comparatively small physical stature also favour a finding of psychological detention by police upon their entry in the backyard.”

Lauwers found the charter breaches to be so significant that he would have excluded the evidence and entered acquittals for Le.