Her Majesty the Queen - v. -, 2011 SKPC 43

IN THE PROVINCIAL COURT OF SASKATCHEWAN YOUTH JUSTICE COURT Citation: 2011 SKPC 043 Date: March 10, 2011 Information: 42412166 Location: Saskatoon ____________________________________________________________________________ Between: Her Majesty the Queen - and - J.N.B-N.

Appearing: Sean Moen For the Crown Tanis Talbot For the Defence Note: Sections 110 and 111 of the Youth Criminal Justice Act contain prohibitions against publication of a name or other information that would identify someone as either a young person being dealt with under the Act , or as a child or young person who is a victim or a witness in relation to an offence alleged under the Act . _____________________________________________________________________________ JUDGMENT D.E. LABACH , J _____________________________________________________________________________

INTRODUCTION [ 1 ] The young person, J.N.B-N., was charged on Information #42412166 with carrying a concealed weapon contrary to s. 90 of the Criminal Code .

The weapon in question was alleged to be a set of homemade brass knuckles and the charge also stipulated that the accused was not authorized under the Firearms Act to carry such a weapon concealed. [ 2 ] Prior to the trial, counsel for the young person filed with the Court a written notice of their intention to argue that J.N.B-N’s rights pursuant to sections 8 and 9 of the Charter had been violated and that the appropriate remedy was the exclusion of all evidence seized as a result of the alleged breaches pursuant to section 24(2) of the Charter .

The Crown acknowledged receiving timely notice of this Charter application. [ 3 ] At the beginning of the trial, the Court entered into a voir dire on these Charter issues. The Crown called the two police officers involved in the case as witnesses on the voir dire and the Defence did not call any evidence. After the voir dire was completed, on application of the Crown and with the consent of the Defence, all evidence called on the voir dire was applied to the trial proper. The Crown then closed its case. Defence counsel advised that they had no evidence to call on the trial proper and closed their case.

Both counsel then made closing argument on the Charter issues on the voir dire and on one other issue, that being whether the item seized from J.N.B-N. fell within the definition of a weapon as set forth in

section 2 of the Criminal Code . My decision on the issues on the voir dire are dispositive of the case and as such, I do not have to deal with this latter issue. FACTS [ 4 ] On June 21, 2010, Constable Baron, was in uniform working general patrol duties in the City of Saskatoon. At 3:32 p.m. he was dispatched to the bus mall on 23 rd Street between 2 nd and 3 rd Avenues regarding a group of seven people who were hanging around.

The dispatch was worded as follows: Group of seven individuals in southeast corner of 200 - 23 rd Street East, three in green t-shirts, two of which are Celtics jerseys and may possibly be members of the Crazy Chronics street gang. There was no information in the dispatch that any of these seven individuals had done anything wrong or were doing anything wrong. The dispatch merely indicated that they were suspicious and should be moved along. [ 5 ] Constable Baron attended to the bus mall and at 3:36 p.m. he noticed three males on 2 nd Avenue walking northbound away from 23 rd Street.

One of these males was wearing a green Celtics jersey. None of these three were doing anything wrong and he had no reason to suspect that they were involved in any sort of criminal activity. He felt that these three had been part of the group of seven that were the subject of the dispatch. [ 6 ] Constable Baron decided to stop them and speak with them. He pulled his police cruiser slightly ahead of them and got out and met them on the sidewalk as they were proceeding north on 2 nd Avenue.

His intention was to obtain their names and dates of birth and to check on CPIC to see if any of them were on any conditions or had outstanding warrants. [ 7 ] As Constable Baron was asking the three young persons their names and birth dates, Constable Thorsteinson attended in another patrol car. He too was responding to the dispatch. He parked behind Constable Baron’s police cruiser and stood on the sidewalk slightly north of the three boys, in effect blocking their progress northbound. Constable Baron was standing with his back to 2 nd Avenue facing the males and the they were backed up against a building.

[ 8 ] The three gave names of K.P., J.S. and J.N.B-N. and provided their dates of birth. Constable Baron then attended back to his police cruiser to run this information on his in-car computer. While he did this, Constable Thorsteinson stayed with the three young persons. As he sat in his police cruiser running this information on CPIC, Constable Baron noted that one of these boys, J.S., appeared to be nervous. [ 9 ] The CPIC check came back negative as none of the three boys were on conditions nor had any outstanding warrants. Constable Baron returned to the group.

He noticed nothing untoward or unusual about how the three young persons were acting except J.S.’s nervousness. According to him, this got his “spidey sense” going. Consequently, he asked J.S. why he was nervous. J.S. responded that he suffered from ADHD. [ 10 ] Constable Baron noted that K.P. was wearing a toque with a marijuana logo on the front. He questioned K.P. about drug usage and K.P. advised him that he had consumed marijuana earlier that day.

As a result of this information, Constable Baron advised K.P. that he was being detained for a drug offence and he asked K.P. to turn out his pockets. [ 11 ] K.P. acquiesced to the officer’s request. When he turned out his pockets he pulled out two baggies with what Constable Baron believed were flakes of marijuana in them. As a result, the officer arrested K.P. for possession of marijuana. Constable Baron then patted K.P. down for officer safety reasons and located a butterfly knife in his possession.

He then arrested K.P. for possession of a prohibited weapon. [ 12 ] While this was occurring, Constable Thorsteinson noticed J.S. adjusting something under his shirt. After Constable Baron located the knife on K.P., Constable Thorsteinson told J.S. that he was going to search him for officer safety reasons. Upon searching J.S. he located a machete under his shirt and arrested him. [ 13 ] After placing K.P. in the back of his police cruiser, Constable Baron returned to the sidewalk to deal with the accused, J.N.B- N.

There was no indication the accused was acting strangely, however the officer told him to turn out his pockets to see if there was anything dangerous inside them. The accused acquiesced and pulled out a small piece of metal from a car ignition and a key. Constable Baron then asked the accused if he could give him a pat-down search for officer safety reasons and the accused again acquiesced. In the accused’s pocket he located what he felt were homemade brass knuckles and he arrested the accused for possession of a prohibited weapon. ISSUES ON THE VOIR DIRE (a.) Was there a violation of J.N.B-N’s

section 9 Charter right to be free from arbitrary detention? (b.) Was there a violation of J.N.B-N’s

section 8 Charter right to be free from unreasonable search and seizure? (c.) If either or both of these Charter rights were violated, should the evidence seized from J.N.B-N. be excluded pursuant to section 24(2) of the Charter? ANALYSIS (a.) Was there a violation of J.N.B-N’s

section 9 Charter right to be free from arbitrary detention?

[14]

Section 9 of the Charter states that everyone has the right not to be arbitrarily detained or imprisoned. A person alleging asection 9 violation must show, on a balance of probabilities, firstly, that he or she was either detained or imprisoned and secondly, that itwas arbitrary. [15] Counsel for J.N.B-N. argued that he was detained when Constable Baron and Constable Thorsteinson surrounded him andhis two friends on the sidewalk and Constable Baron began asking them for their names and dates of birth. In their view the officers hadno lawful basis on which to detain them.

Crown counsel on the other hand took the view that none of the three were detained at thisstage as they were not obliged to answer any questions put to them by either of the officers and were free to leave at any time. It wastheir position that it was not until each of the young persons were arrested that they were actually detained. [16] Dealing with this issue of detention, I take direction from the Supreme Court’s decision in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353.

In that case, three police officers were on patrol for the purposes of monitoring an area near schools witha history of assaults, robberies and drug offences. The accused, a young black man, was walking down a sidewalk when two of theofficers drove past him. The accused stared at him and fidgeted with his coat and pants in a way that aroused their suspicions. Theysuggested to the third officer that he should have a chat with the accused to see if there was any need for concern. This officerpositioned himself in the accused’s path and initiated an exchange with him.

He asked the accused what was going on and requested hisname and address. The accused began acting nervously and eventually the other two officers approached, flashed their badges and stoodbehind their fellow officer. The accused was asked if he had anything he shouldn’t have to which he answered that he had a small bag ofweed and a firearm. At this point, the officers arrested the accused and searched him locating some marijuana and a loaded revolver. Isummarize these facts because they are extremely similar to the facts of the present case. At trial, the accused alleged violations of hissections 8, 9 and 10(

b) Charter rights. The trial judge found no Charter breaches and convicted the accused. On appeal, the OntarioCourt of Appeal concluded that a detention had occurred during the first conversation the accused had with the officer, the detentionwas arbitrary and there was a breach of

section 9. However, they refused to exclude the evidence under section 24(2). On appeal to theSupreme Court of Canada, the appeal in relation to this Charter issue was dismissed. [17] Chief Justice McLachlan and Madam Justice Charron, speaking for the majority, agreed with the Ontario Court of Appeal thatthere had been a detention in this case. After a very detailed review of the case law in relation to what constitutes a detention, they said: [44] In

summary, we conclude as follows: 1. Detention under sections 9 and 10 of the Charter refers to a suspension of the individual’s liberty interest by a significant physical orpsychological restraint. Psychological detention is established either where the individual has a legal obligation to comply with therestrictive request or demand, or a reasonable person would conclude by reason of the state conduct that he or she had no choice but tocomply. 2. In cases where there is no physical restraint or legal obligation, it may not be clear whether a person has been detained.

To determinewhether the reasonable person in the individual’s circumstances would conclude that he or she had been deprived by the state of theliberty of choice, the Court may consider, inter alia, the following factors:

a) The circumstances giving rise to the encounter as would reasonably be perceived by the individual: whether the police were providinggeneral assistance; maintaining general order; making general inquiries regarding a particular occurrence; or, singling out the individualfor focused investigation.

b) The nature of the police conduct, including the language used; the use of physical contact; the place where the interaction occurred;the presence of others; and the duration of the encounter.

c) The particular characteristics or circumstances of the individual, where relevant, including age; physical stature; minority status; levelof sophistication. See also R. v. Suberu, 2009 SCC 33 , [2009] 2 S.C.R. 460 (S.C.C.) at paras. 23, 25 and 28.

[18] Applying this definition of detention to the facts of the present case, I am satisfied on a balance of probabilities that theaccused (and the other two young persons for that matter) were detained when both officers were present and Constable Baron wasquestioning them about their names and dates of birth. While the accused was not physically restrained by either officer at this stage, areasonable person in J.N.B-N.’s circumstances would conclude that he was not free to choose to walk away or to decline to answer thequestions of Constable Baron. [19] I reach this conclusion for a number of reasons.

Given how quickly Constable Baron arrived at the bus mall after thedispatch, the proximity of the three young people to the bus mall and the fact that one of them was wearing a green Celtic’s jersey, hebelieved that these three were a part of the larger group of seven that were the subject of the dispatch. Even though they were doingnothing wrong and there was no indication that the larger group of seven had done anything wrong, and the group had fractured andwere moving on, Constable Baron made the decision to stop them and get their names and dates of birth and run them on CPIC.

He wasnot just making general inquiries of them. By running their names on the computer he was in effect investigating them for breach ofconditions of undertaking, probation or conditional sentence orders or for outstanding warrants. [20] In order to question them, Constable Baron situated himself so that the accused and the other two males were backed uptoward a building. Constable Thorsteinson meanwhile, took up a position immediately to the north of the three males on the sidewalk. He testified that he stood in that position for safety reasons.

That may have been one reason, but I am satisfied he had another purpose instanding there and that was clearly to block the boys from leaving in that direction. By positioning themselves as they did, the officerseffectively took away three of the four avenues of egress that these boys had. [21] Constable Baron wanted their names and dates of birth so he could run them on CPIC and see if there were any outstandingwarrants or if any of them were on any conditions that they may be violating. While this occurred the three were not free to leave.

Ifone of them would have run or even walked away, I have no doubt that the officers would have stopped them pending the results of theCPIC search. My view in this regard is bolstered by the fact that even after the CPIC check for conditions and warrants came backnegative for all three of them, Constable Baron did not tell them they were free to go. Instead, he began questioning them about otherthings as it appeared he was certain they were doing something wrong, he was just not sure what.

Clearly, they were not free to leave atthis time either. [22] The accused did not testify nor did he call any evidence on the voir dire. I have no direct evidence as to how he felt whenConstable Baron stopped him and his two friends. However, as Chief Justice McLachlan stated in Grant, supra, at paragraph 50, that isnot fatal to the Court’s determination as to whether there had been a detention or not because the test for detention is an objective one. [23] Both officers in this case were in full uniform and their encounter with these young persons was deliberate and notparticularly short in duration.

While there is no evidence before me as to the ages of J.S. or K.P., the accused, J.N.B-N., was 16 at thistime. The power imbalance was obvious and exacerbated by the youth of the accused. Our Supreme Court has recognized the reducedcapacity of young people to understand their rights and their increased disposition to answer questions put to them by persons in authority(See R. v. H.(L.), 2008 SCC 49 , [2008] 2 S.C.R. 739 (S.C.C.) at paras. 24 and 33).

I have no hesitation finding that the accusedfelt that he had no choice but to obey the officer’s request to stop and answer his questions and was therefore detained. [24] A detention is not a breach of

section 9 unless it is arbitrary. A detention will be arbitrary if it is not authorized by law, if thelaw authorizing it is itself arbitrary or if it does not meet the criteria for an investigative detention as set down in R. v. Mann, 2004 SCC52 , [2004] 3 S.C.R. 59 (S.C.C.). [25] The accused in this case was not doing anything wrong nor had he done anything wrong. He was simply walking down thestreet with two friends. There was no law authorizing Constable Baron to detain the accused in these circumstances.

I am satisfied thatthe only reason Constable Baron detained the accused was for investigative purposes. [26] In order for an investigative detention to be lawful, it must meet the test set forth in R. v. Mann, supra. In that case, Mr.Justice Iacobucci outlined the test as follows:

[34] The case law raises several guiding principles governing the use of a police power to detain for investigative purposes. The evolution of the Waterfield test, along with the Simpson articulable cause requirement, calls for investigative detentions to be premised upon reasonable grounds. The detention must be viewed as reasonably necessary on an objective view of the totality of the circumstances, informing the officer’s suspicion that there is a clear nexus between the individual to be detained and a recent or ongoing criminal offence.

Reasonable grounds figures at the front end of such an assessment, underlying the officer’s reasonable suspicion that the particular individual is implicated in the criminal activity under investigation.

The overall reasonableness of the decision to detain, however, must further be assessed against all of the circumstances, most notably the extent to which the interference with individual liberty is necessary to perform the officer’s duty, the liberty interfered with, and the nature and extent of that interference, in order to meet the second prong of the Waterfield test. [35] Police powers and police duties are not necessarily correlative. 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.

Individual liberty interests are fundamental to the Canadian constitutional order. Consequently any intrusion upon them must not be taken lightly and, as a result, police officers do not have carte blanche to detain. The power to detain cannot be exercised on the basis of a hunch, nor can it become a de facto arrest. [ 27 ] In R. v. Yeh, [2009] S.J. No. 587 (Sask. C.A.) the Saskatchewan Court of Appeal determined that a recent or ongoing criminal offence necessarily included suspected offence. Speaking for the majority, Mr. Justice Richards said: [94] . . . .

As a result, I conclude that, at common-law, the police may detain an individual for purposes of an investigation when they have reasonable grounds to suspect he or she is involved in criminal activity. It is not necessary that the detention be in relation to a known, as opposed to a suspected offence. [ 28 ] In the present case, Constable Baron acknowledged that he had no reason to believe that the accused had committed a crime nor was the accused committing a crime. The dispatch he had received did not specifically mention the accused or provide a description of him.

It suggested that seven individuals in the bus mall, some of whom were wearing green or Boston Celtics jerseys, may be members of a street gang known as the Crazy Chronics and they should be moved along. It did not state that any of the seven were involved in any sort of illegal activity. [ 29 ] When Constable Baron arrived at the bus mall he noticed the accused, K.P. and J.S., approximately one-half block away heading northbound on 2 nd Avenue.

He had no information that these three had been part of the larger group of seven, that they had been in the bus mall or that they were members in a gang known as the Crazy Chronics. He simply assumed that they were part of the group who had been referred to in the dispatch because he had arrived at the bus mall within four minutes of getting the dispatch, as a result of their proximity to the bus mall and that one of the boys was wearing a Boston Celtics jersey. [ 30 ] When he saw them they were not doing anything wrong nor did he have any information that they had done anything wrong.

If these three were part of a larger group of seven in the bus mall minutes earlier, then the reason for the dispatch had already occurred, that is, they had dispersed and were moving along. Despite this, Constable Baron decided to stop these three young persons and check to see if they were on conditions for anything or in warrant status. However, he had no reason to believe that they were on conditions, that they were breaching any conditions, or that they had outstanding warrants.

In essence, he had no reason to investigate them for a breach of a court order. [ 31 ] After stopping them, the evidence is that he asked them their names and dates of birth and upon receiving that information, he attended to his patrol car to run their names on CPIC. There is no evidence that he asked them if they had just been in the bus mall with others, if they were part of the Crazy Chronics or if they were on any court ordered conditions for anything.

Thus, even after speaking to them, he had no more information to suspect they were breaching any court orders, had outstanding warrants or were involved in any criminal activity. I cannot even say that he had a hunch that the accused was doing something wrong. Looking at the totality of the evidence, Constable 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 under

section 9 of the Charter. (b.) Was there a violation of J.N.B-N’s

section 8 Charter right to be free from unreasonable search and seizure?

[32] In R. v. Mann, supra, Mr. Justice Iacobucci determined that an officer may do a protective pat down search of an individualdetained for an investigative detention where the officer has reasonable grounds to believe that his or her safety or that of others is atrisk. At paragraph 40, he said: [40] The general duty of officers to protect life may, in some circumstances, give rise to the power to conduct a pat down search incidentto an investigative detention.

Such a search power does not exist as a matter of course; the officer must believe on reasonable groundsthat his or her own safety, or the safety of others, is at risk. I disagree with the suggestion that the power to detain for investigativesearches endorses an incidental search in all circumstances: See S. Coughlin, “Search Based on Articulable Cause: Proceed with Caution or Full Stop?” (2002) 2 C.R. (6th) 49, at page 63. The officer’s decision to search must also be reasonably necessary in light of thetotality of the circumstances.

It cannot be justified on the basis of a vague or non-existent concern for safety, nor can the search bepremised upon hunches or mere intuition. [33] Of course since this limited right to search does not occur unless there is an investigative detention, if the investigativedetention is not lawful, the search incident to it cannot be lawful. [34] Although she was discussing a search incident to arrest, Madam Justice Jackson’s comments in the Saskatchewan Court ofAppeal’s decision in R. v. Janvier, 2007 SKCA 147 , [2007] S.J. No. 646, are just as appropriate to a search incident to aninvestigative detention.

At paragraph 50 she said: [50] For the search incident to the arrest to be lawful, it is trite law that the arrest itself must be authorized by law. Having found that thearrest was not lawful, it follows that the police officer could not rely on the common law power to search incident to arrest. [35] As a result, since the initial detention of the accused was arbitrary, Constable Baron’ search of the accused thereafter wasunreasonable and a violation of his

section 8 Charter right. (c.) If either or both of these Charter rights were violated, should the evidence seized from J.N.B-N. be excluded pursuant to section24(2) of the Charter? [36] In an assessment of whether evidence should be excluded under section 24(2) of the Charter, a Court must assess and balancethe following three factors to determine if admission of the evidence would bring the administration of justice into disrepute:

a) the seriousness of the Charter infringing state conduct;

b) the impact of the breach on the Charter protected interests of the accused; and

c) society’s interest in the adjudication of the case on its merits. [37] In R. v. Grant, supra, Chief Justice McLachlan gave direction as to this overall inquiry in light of the meaning “bring theadministration of justice into disrepute”. At paragraph 68, she said: [68] The phrase “bring the administration of justice into disrepute” must be understood in the long term sense of maintaining theintegrity of, and public confidence in, the justice system. Exclusion of evidence resulting in an acquittal may provoke immediatecriticism. But section 24(2) does not focus on immediate reaction to the individual case.

Rather, it looks to whether the overall repute of the justice system, viewed in the long term, will be adversely affected by admission of the evidence. The inquiry is objective. It askswhether a reasonable person, informed of all relevant circumstances and the values underlying the Charter, would conclude that theadmission of the evidence would bring the administration of justice into disrepute.

[38] The issue in this case is whether in light of the above-noted factors, the admission of the homemade brass knuckles wouldbring the administration of justice into direpute. I now turn to that analysis. Seriousness of the Charter infringing state conduct [39] This factor requires an evaluation of the seriousness of the conduct that led to the breach. Police conduct can run fromblameless to negligent to a blatant disregard for Charter rights. The more severe or deliberate the conduct that led to the violation, thegreater the need for the courts to disassociate themselves from that conduct. (See R. v.

Grant, supra, at paragraphs 72 - 74; R. v.Harrison, [2009] S.C.R. 494 (S.C.C.) at paragraphs 22 - 23). [40] In this particular case, Constable Baron had no reason to stop the accused and his friends. He had no information that theaccused or the other two males had done anything illegal and he did not see them do anything illegal. As far as the officer knew, theaccused’s only fault was being with six others, some or all of which may have been gang members, wandering around the bus mall.

Butthere was no evidence that the officer knew that the accused had been part of the larger group in the bus mall that was the subject of thedispatch or that the accused or any of these other people were part of a street gang. Even if the evidence did establish that the accusedwas part of this larger group, it was not against the law to wander around the bus mall. [41] When Constable Baron saw the accused, K.P. and J.S., they were walking down the street. They did not run from him whenhe identified himself as a police officer.

He did not know who the accused or the other two boys were and he had no reason to believethat they were on any conditions or had outstanding warrants. If the dispatcher’s purpose in sending an officer to the bus mall was tomove this group of individuals along, it had already occurred. Constable Baron did not see the group referred to in the dispatch in thebus mall and even if the accused had been part of that group, he was moving on without the group. [42] It is important to note that Constable Baron asked the accused for his name and date of birth.

There is no indication theaccused gave the officer false information. Thus he would have been aware that the accused was only 16 years of age and thereforesubject to the protections of the Youth Criminal Justice Act.

Section 3 of the Act sets forth the principles that apply to the Act. Specifically, section 3(1)(b)(iii) states that: The criminal justice system for young persons must be separate from that of adults and emphasize . . . enhanced procedural protection toensure that young persons are treated fairly and that their rights, including their right to privacy, are protected. Given the accused’s age, the officer would have been aware that he had an even more onerous obligation than when dealing with anadult. [43] I find support for this position in R. v.

J.(J.T.), (SCC), [1990] 2 S.C.R. 755 (S.C.C.) at pages 766 - 767: A young person is usually far more impressed and influenced by authoritarian figures. No matter what the bravado and braggadocio thatyoung people may display, it is unlikely that they will appreciate their legal rights in a general sense or the consequences of oralstatements made to persons in authority; certainly they would not appreciate the nature of their rights to the same extent as would mostadults. Teenagers may also be more susceptible to subtle threats arising from their surroundings and the presence of persons inauthority.

A young person may be more inclined to make a statement, even though it is false, in order to please an authoritarian figure. It was no doubt in recognition of the additional pressures and problems faced by young people that lead Parliament to enact this code ofprocedure. See also R. v. N.(N.) 2009 ONCJ 508 (Ont. C.J.) at paras. 44, 65 to 68; R. v. H.(L.) supra at para. 33. [44] Constable Baron’s conduct was not blameless. It fell somewhere between negligent and a blatant disregard for the accused’sCharter rights.

The fact that he had no reason to stop or detain the accused is exacerbated by the fact that the accused was a youngperson. After checking the accused’s name on CPIC and finding nothing the matter, Constable Baron did not tell the accused he wasfree to go. He said that his “spidey sense” was going off. Spidey sense, whatever that term may mean, is hardly enough to justify thefurther detention of the accused especially when the accused was not doing anything illegal and was not acting nervously or

inappropriately but simply standing there. [ 45 ] R. v. Grant , supra, was a similar fact pattern to this case. In addressing this first factor in her section 24(2) analysis, Madam Justice McLachlin found that the officers’ conduct was neither deliberate, egregious or in bad faith. She felt that the officers’ belief that they did not detain the accused was a mistake in light of the conflicting decisions from the courts as to what constituted a detention. However, she finished by saying: [133] . . . We add that the Court’s decision in this case will be to render similar conduct less justifiable going forward.

While police are not expected to engage in judicial reflection on conflicting precedents, they are rightly expected to know what the law is. [ 46 ] The law having been clarified in Grant , it should have been clear to Constable Baron that he was arbitrarily detaining the accused young person. As a result his conduct falls close to the more serious end of the spectrum favouring exclusion of the brass knuckles. Impact on the Charter protected interests of the accused [ 47 ] There was no reason for Constable Baron to detain the accused in this case.

There was not even the slightest hint that he was doing anything wrong. By all accounts the accused was just walking down the street. Constable Baron could not have even had a suspicion that the accused was up to no good as he had absolutely no information, no observations and no complaint that the accused had done anything illegal. [ 48 ] A person’s right not to be deprived of his liberty is a fundamental right in Canadian society. An officer has a duty to investigate crime and to detain people who he has reasonable grounds to suspect have committed or are committing a crime.

But he cannot detain someone for no reason. Constable Baron was not abusive and he did not handcuff the accused however this does not take away from the fact that this was a baseless detention. The impact on the accused’s right to liberty was serious. [ 49 ]

Section 8 of the Charter protects a person’s right to privacy. However, in the context of an arrest or an investigative detention or with warrant, an officer is authorized to search a person. But in the absence of an arrest, a lawful detention or a warrant a person has a right to be free from unreasonable searches. In this case, the search of the accused’s pockets would not have occurred but for his arbitrary detention.

While I can appreciate that once the officers located weapons on K.P. and J.S. they were concerned with whether the accused had a weapon, had they not improperly stopped him to begin with, there never would have been a search of his pockets. The impact on the accused’s right to privacy was serious also. Society’s interest in the adjudication on the merits [ 50 ] Society has an interest in ensuring that those who break the law are brought to trial and dealt with accordingly. The evidence of the brass knuckles is real evidence that is central to the Crown’s case.

Without its admission, the Crown could not prove their case against the accused. However, society also has an interest in ensuring that those charged with upholding the law respect the constitutional rights of individuals and abide by the rule of law as they carry out their duties. Thus while the evidence of the homemade brass knuckles would facilitate the discovery of the truth, it is outweighed by the particular facts of this case surrounding the breaches of the accused young person’s liberty and privacy rights and the court’s concern for maintaining the integrity of the judicial system.

Balancing the factors [ 51 ] Balancing all of these factors, to admit the evidence of the brass knuckles would bring the administration of justice into disrepute. While the police eventually located evidence in the pockets of the accused young person implicating him in a crime, they had no reason to suspect that he had a weapon in his pocket and no reason whatsoever to detain him. Society has an interest in having those

accused of a crime having their case adjudicated on the merits but such an interest is outweighed when the police conduct in committing the Charter breaches that uncovered the evidence of a crime is serious. Every individual must be satisfied that their right to liberty and privacy is important and that the state will adhere to the rule of law. Indeed, they expect the Court to protect those principles because without the Court to protect them, no one else will. [ 52 ] The conduct of the officers in this case cannot be condoned.

Their unjustified curtailment of the accused’s young person’s liberty and subsequent violation of his privacy undermines every young person 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.

To find otherwise would undermine Charter values. [ 53 ] Therefore, I exclude the evidence of the brass knuckles in this case CONCLUSION [ 54 ] Having excluded the evidence of the brass knuckles, I acquit the accused J.N.B-N. of the offence of carrying a concealed weapon, to wit: homemade brass knuckles contrary to

section 90 of the Criminal Code . ____________________________ D.E. Labach, J