Two Saskatoon police officers committed "serious" violations of a teenager's charter rights when they detained him without reason and then, because of "spidey sense," invaded his privacy with an unreasonable search, a judge said Tuesday. 

The search revealed homemade brass knuckles but Judge Daryl Labach threw out the evidence and found the teen not guilty of carrying a concealed weapon.

The police officers' conduct "fell somewhere between negligence and a blatant disregard for the accused's charter rights," Labach found.

People have to know police will stick to the laws protecting freedom and privacy, Labach wrote in an 18-page decision dated March 10.

Police Chief Clive Weighill said the officers were acting in good faith.

"There's a big difference between a ruling on a point of law than an officer doing something you would term as misconduct," Weighill said.

Such cases arise three or four times per year, he said.

"They're usually minor rulings in law more than police misconduct," he said.

The decision pertained to charges that were laid June 21 against the 16-year-old.

Constables Dennis Baron and Justin Thorsteinson had responded to a 3:30 p.m. complaint about a group of seven youths who might have been members of a street gang and who were hanging around at the 23rd Street bus mall.

Baron arrived and saw three males walking north on Second Avenue.

They weren't doing anything wrong and the officer had no reason to think they had done anything illegal, Labach found after hearing testimony from both officers.

Baron stopped the trio and asked their names and birth dates so he could check to see if any of them were on conditions or had outstanding warrants.

Thorsteinson arrived in a second car and stood beside the group, who were backed up against a building, with Baron in front of them.

The officers' positions took away three of the four avenues the males had for leaving, Labach found. At that point all three were being detained, he found.

"The accused felt that he had no choice but to obey the officer's request to stop and answer his questions," Labach found.

For a detention to be lawful there must be a clear connection between the person and a "recent or ongoing criminal offence," Labach wrote, quoting a 2004 Supreme Court decision.

"Const. Baron acknowledged that he had no reason to believe that the accused had committed a crime nor was the accused committing a crime," Labach wrote.

Nor did Baron have reason to believe the males were on conditions or were breaching any conditions, Labach wrote.

"Const. Baron did not have the appropriate basis to detain the accused for an investigative detention and therefore the detention was arbitrary and a breach of the accused's rights," he wrote.

The computer check showed none of the males were on any conditions but the officers still didn't let them leave, Labach found.

Baron said one of the males seemed nervous and it got his "spidey sense" going.

Thorsteinson searched him and found a machete under his shirt and arrested him.

Baron saw a marijuana leaf motif on the hat of another male and asked him about drug use. That youth admitted he had smoked marijuana that day and Baron told him he was being de-tained for a drug offence. A small amount of marijuana and a knife were found in his possession.

Baron told the 16-year-old youth to turn out his pockets and patted him down, resulting in the discovery of the homemade brass knuckles.

"If the investigative detention is not lawful, the search incident to it cannot be lawful," Labach wrote.

"Spidey sense, whatever that term may mean, is hardly enough to justify the further detention of the accused," he wrote.

"The conduct of the officers in this case cannot be condoned," he wrote.

Their unjustified action "undermines every young person's or adult's right to be free from being detained and searched by the police if they are doing nothing wrong and there is no reason to suspect that they are doing or have done anything wrong."

"While the police have a common law duty to investigate crime, they are not empowered to undertake any and all action in the exercise of that duty," Labach quoted from the Supreme Court decision.

"This was a baseless detention. The impact on the accused's right to liberty was serious," Labach wrote.

April 13, 2011
Star Phoenix
http://www.thestarphoenix.com/Youth+...#ixzz1JRyHpLsl
(Canada)