POLICE VIOLATED MAN'S CHARTER RIGHTS

Officer Detained Man Because Of Race, Queen's Bench Justice Rules

EDMONTON - A Court of Queen's Bench judge essentially threw out drug
and gun charges against a Lebanese-Canadian man Friday, arguing
Edmonton police unlawfully detained him on suspicion of drug dealing
and violated his charter rights.

The justice ruled the officer seemed to be acting on the assumption
Safadi was a drug dealer because of his ethnicity and the discovery of
as many as five cellphones inside the car.

"The power to detain cannot be executed on a hunch," Court of Queen's
Bench Justice Lawrie Smith told the court before staying all nine
counts against Khaled Fadl Safadi, charges stemming from an arrest on
June 1, 2003. "It was an arbitrary detention and the answers given (by
Safadi) were compelled."

A stay means the charges can again be brought forward within one year
but that rarely occurs. Safadi, 26, of Edmonton was released from
custody shortly after the justice made her decision.

Smith found that Const. Kevin Berge violated Safadi's charter rights
by detaining and questioning him as a passenger in a 1993 BMW pulled
over for improper window tinting at 97th Street and Yellowhead Trail.
It was during that questioning that packets of cocaine were discovered
hidden in Safadi's mouth. A gun was subsequently found on him. In
court, the Crown argued that Berge had every right to detain and
question Safadi because the officer had seen him without a seatbelt --
a violation of the traffic code.

Smith rejected the claim, pointing to Berge's own notes from the
incident.

"Const. Berge made no note of the seatbelt until he stopped the car
and looked around," she said. "This contradicted what he said at the
preliminary (hearing)."

Neither the drugs nor the gun would have been found without the
unlawful questioning of Safadi, Smith said. That action tainted all
the evidence in the case, she said, before staying all charges against
Safadi.

While everyone has a moral responsibility to assist the police, there
is no legal obligation, Smith said Friday. Berge's questioning --
before reading Safadi his rights -- effectively forced the man to
incriminate himself, she told the court.

"Mr. Safadi had a higher right to privacy as to the contents of his
mouth," she said.

"The accused had a privacy right to things secured on or in his
person."

The incident comes days after the federal government announced $2.2
million dollars to help police departments across the country grapple
with issues surrounding racial profiling and bias in policing.

The Edmonton Police Service is not part of that federal
partnership.

"Our legal advisers will need to take a look at the ruling before we
can offer up any comment," Andy Weiler, an Edmonton police spokesman,
said Friday.