R v Usmann, 2020 ABQB 793

Court of Queen’s Bench of Alberta Citation: R v Usmann, 2020 ABQB 793 Date: 20201218 Docket: 150983633Q1 Registry: Edmonton Between: Her Majesty the Queen Crown - and - Anaa Usmann Accused _______________________________________________________ Reasons for Decision on Voir Dire of the Honourable Justice Johanna C. Price _______________________________________________________ I. Introduction [ 1 ] The Accused, Anaa Usmann is charged with possession of a concealed firearm and related offences contrary to sections 86(1) , 88(1) , 90(1) , 91(1) , 92(1) , and 95(1) of the Criminal Code of Canada , RSC 1985, c C-46 .

Counts 3 and 5 in the Indictment, relating to sections 92(2) and 96(1) of the Criminal Code were stayed by the Crown at the commencement of the trial. [ 2 ] In addition to the firearm charges, Mr. Usmann is charged with possession of cocaine for the purpose of trafficking contrary to section 5(2) of the Controlled Drugs and Substances Act , SC 1996, c 19 . [ 3 ] All of the charges arose after Mr. Usmann was detained in downtown Edmonton in the early morning of August 16, 2015. During a pat-down search a firearm was discovered that was tucked into the front waistband of Mr. Usmann’s pants.

Subsequently, a search incidental to arrest was conducted, and in that search the Edmonton City Police (the “police”) found ammunition in Mr. Usmann’s left pant pocket. Afterwards, when Mr. Usmann was lifted from the ground, the police discovered a bag of cocaine that was on the ground at/or near where Mr. Usmann was first detained and where the search incidental to arrest ensued. The cocaine is believed to have fallen from Mr. Usmann’s clothing. Subsequently, Mr. Usmann was transported to the downtown police station where he was strip-searched. Nothing was found on Mr. Usmann in the strip search.

In reply oral argument, Counsel for the Defence advised that Mr. Usmann does not take issue of the manner in which the strip search was conducted.

[ 4 ] Counsel agreed at the commencement of the trial that the evidence before me in the voir dire would apply in a blended fashion to the trial proper. I was advised by counsel for the Crown that: identity, jurisdiction, the nature of the drug seized, in addition the firearms certificate, active ammunition and continuity of exhibits were all admitted.

Further, I was advised that the element of possession for the purpose of trafficking was also admitted. [ 5 ] In dealing with the admissions, several documents were exhibited at the outset of the voir dire without objection, including: the firearm and ammunition Certificate of Analysis, the Affidavit of Wade Price in relation to Mr.

Usmann not being a holder of a registration certificate in relation to the firearm, the Affidavit of Wade Price in relation as to the last known holder of the registration certificate of the firearm, and the CV and Report of Sargent Campeau relating to the cocaine found being possessed for the purpose of trafficking. [ 6 ] It is Mr. Usmann’s position in this application that the police did not have grounds to detain, question or search his person.

He submits that he was unlawfully detained and searched (and later strip-searched) because he was a black man walking through a neighborhood in which a disturbance had earlier been reported. For those reasons his counsel submits that the evidence found on Mr. Usmann should not be admitted. [ 7 ] Mr. Usmann alleges that his rights were breached under the Canadian Charter of Rights and Freedoms ,

Part 1 of the Constitution Act , 1982 , being

Schedule B to the Canada Act 1982 (UK), 1982, c 11 . [ 8 ] Mr. Usmann seeks a declaration that the Police breached his rights under sections 8 and 9 of the Charter . Those sections provide as follows: 8. Everyone has the right to be secure against unreasonable search or seizure. 9. Everyone has the right not to be arbitrarily detained or imprisoned. [ 9 ] Mr. Usmann also asks this Court to grant him a remedy under

section 24 of the Charter , which provides as follows: 24.

(1) Anyone whose rights or freedoms, as guaranteed by this Charter , have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.

(2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter , the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute. [ 10 ] In reply, the Crown says that the police were responding to a serious gun complaint where shots were fired. The Crown argues that the police had reasonable grounds to suspect Mr. Usmann was involved.

It is further submitted by the Crown that on detaining Mr. Usmann, a pat-down search was conducted for officer safety reasons where a gun was discovered tucked into the waistband of his pants. Further, when they conducted the strip search following his arrest, the Crown’s position is that the police had additional reasonable and probable grounds to believe that weapons or evidence were concealed on Mr. Usmann justifying the search. The Crown’s position is that the evidence found on Mr. Usmann is admissible. [ 11 ] In

summary , I find that there were no breaches of Mr. Usmann’s rights under any of sections 8 or 9 of the Charter . [ 12 ] A

summary of the evidence and my reasons follow. II.

Summary of the Evidence A. Events of August 16, 2015 Testimony of Constable Kenneth McKinnon [ 13 ] In the early morning of August 16, 2015 Constable Kenneth McKinnon who had served as an Edmonton police officer for less than one year by that time, gave evidence that he and his partner, while on patrol duty, responded to a call that came in at 2:47AM.

The details of the 911 call that Constable McKinnon could recall at the voir dire were that: there had been an argument between parties present, the witness saw muzzle flashes, and a license plate number and vehicle description was provided over the air, which was a silver Toyota, with license plate number K94513. The suspect vehicle and its occupants were believed to be involved in a weapons complaint that took place at 107 Avenue and 109 Street.

That information was relayed by radio and the mobile workstation in the police car. [ 14 ] Constable McKinnon gave evidence that while gridding the area they had located the suspect vehicle between 111 Avenue and 110 Avenue just east of 107 Street in the alley, heading eastbound in the alley. He further gave evidence that they caught up to the suspect vehicle to confirm that the license plate number on that car was the same as that which had been broadcast for the suspect vehicle.

When they made that determination that it was the same, they indicated that they had found the suspect vehicle and that they were following it. They followed the suspect vehicle for 2 more blocks and others “ hopped ” on the call. Constable McKinnon explained that they wanted other police to join them for the actual stop. They believed the suspect vehicle could be related to a firearms offence and they wanted to make sure they had plenty of resources. [ 15 ] They then stopped the suspect vehicle just north of 108 Avenue on 106 Street .

The suspect vehicle was travelling south on 106 Street. [ 16 ] Constable McKinnon said that he and his partner were the first police car there and that they initiated the stop of the suspect

vehicle at 2:57AM. Shortly thereafter another police car arrived to assist the stop and arrest. [ 17 ] Constable McKinnon gave evidence that there were only two people in the suspect vehicle. After searching the two people associated with the suspect vehicle, no weapons were found and those individuals were released. [ 18 ] Constable McKinnon presented as a credible witness. There was nothing in any of his testimony at the voir dire that led me to believe otherwise. Testimony of Constable Stephen Farrand [ 19 ] Constable Stephen Farrand testified that he was on duty in the early morning of August 16, 2015.

He had served as an Edmonton police officer for 3 years by that time and was a patrol constable for the downtown division. He was partnered with Constable Shawn Cline. He gave evidence that there was a “Trouble Not Known Call” that originated at 109 Street and 107 Avenue regarding a dispute between a group of males and a female and that it escalated when it was reported that there was a firearm involved. Constable Farrand described that a “Trouble Not Known Call” is when not all of the facts are immediately known.

He explained that it is a way to categorize calls. [ 20 ] Constable Farrand recalled the following details of what was broadcast over the police radio about the call: “There was an argument between 4 black males and a black female that was being called in by a third party complainant. They were reporting that this argument escalated when they seen what looked like a muzzle flash from a gun. The complainant continued to provide updates that were relayed over the police radio that the group of males was also associated to a silver or light coloured car.

As the car left that location we continued to receive updates that the firearm had again been discharged and as other units located the vehicle in question which had a license plate that was confirmed. I was responding to attempt to assist them with a ‘high risk traffic stop’”. [ 21 ] Constable Farrand explained that a “high risk traffic stop” occurs when there is a threat to the safety of the public, or to the officers or to the subjects involved themselves. Typically there is more than one police officer involved in the stop.

Further he said depending on the nature of the complaint, the police involved in the “high risk traffic stop” may have their firearms drawn or available during the stop. [ 22 ] When he first heard the complaint over the police broadcast, Constable Farrand said that he and his partner immediately started heading in the direction of the “Trouble Not Known Call” at 109 Street and 107 Avenue.

As updates about the complaint continued to come in, his intentions changed to go and assist with the “high risk traffic stop”. [ 23 ] When asked to provide all of the information he was aware of as it evolved, Constable Farrand added that the complainant had reported that the firearm had been pointed towards him and shot at him and that prior to the police having stopped the suspect vehicle that “subjects had fled from the suspect vehicle”.

All of what he was hearing was being broadcast over the police radio in real time. [ 24 ] Constable Farrand further gave evidence that he never made it to the “high risk traffic stop” because in his attempt to get there to assist, he observed two males running across the street who matched the description that was given. He said they were running away from the location of where the “high risk traffic stop” was taking place.

He said that he felt it more prudent to investigate to see if those males were related to the firearm complaint instead of attending the location of the “high risk traffic stop” where the suspect vehicle was. [ 25 ] Constable Farrand said that he believed that the two men he and Constable Cline saw were involved in the “crime of a firearm being discharged”. When asked what aroused his suspicions he said the following: “It seemed suspicious given the proximity to where the traffic stop was being conducted, it was very close to that location. It was suspicious in that they did match the suspect descriptions.

It was suspicious in that it was 3 in the morning and there was not a lot of people around. It was suspicious in that it did not appear to me that they were out exercising, it seemed more of a panic run, they were not dressed as if they were training or anything like that”. [ 26 ] When Constable Farrand was again asked why he believed that the two men he saw running across the street were involved in the crime of a firearm being discharged, he said the following: “The proximity to where the car was located. The circumstances in that someone was... or at least it was relayed that someone had fled the vehicle.

They matched the gender and physical description of the subjects believed to be involved. The timing of the day. It was 3 in the morning. There wasn’t a lot of people out. Certainly not a lot of people running around. And just the way, that they were running, it didn’t seem like they were exercising. It seemed like they were running from something”. [ 27 ] Constable Farrand said that there were no other people that he could recall being around in the immediate vicinity when he first observed the suspects. [ 28 ] Constable Farrand made a U-turn and engaged the emergency lights on the police vehicle.

He explained that it was dark and that it would help identify that they were the police. He said that he exited the vehicle, announced that he was the police, and directed them to stop and put their hands in the air and place them where Constable Farrand could see them so as to make sure there were no weapons. The suspects complied. He said that he addressed the person he now knows to be Mr. Usmann and advised him that he was being detained for a weapons complaint and that he needed to check him for weapons. He said that he asked Mr. Usmann if he had any weapons on him and Mr.

Usmann said that he did not. [ 29 ] Constable Farrand gave evidence that he felt it was necessary to conduct a pat down search in the circumstances because at that point there was information that there was a firearm involved. A firearm had been discharged at least twice at that point. He said that he didn’t want to be shot or for anyone else to be shot.

[ 30 ] According to Constable Farrand, the purpose of asking Mr. Usmann if he had any weapons was: “Strictly for safety purposes. If he did happen to have it on him, I didn’t want him to reach for it. If he did, that would have put a lot of people at risk”. [ 31 ] He described what happened when he detained Mr. Usmann as follows: “Given the remarks with the firearm being present and used. I had my firearm out and in low ready position in case I needed to respond. I provided verbal direction to Mr. Usmann to face away from me. I advised him what I was doing, patting him down for weapons.

I began conducting the process, patting the back of his pants, his upper thighs and then intending to continue the search until I checked to make sure he didn’t have any weapons on him. As I was completing the search I noticed that Mr. Usmann was lowering his arms and his right hand towards the front of his waist band. I recognized that in a high stress situation; their arms might get tired, I directed him to please keep his arms up. My perception was that he was reaching for that area so I checked that area next, the front of his waistband.

I discovered a hard object, I lifted his shirt out of the way and discovered the handle of what appeared to be a handgun tucked into his pants”. [ 32 ] After removing the firearm that he located on Mr. Usmann, Constable Farrand put Mr. Usmann facedown on the ground and advised via police radio that he had apprehended a subject and located a firearm on the subject. Other officers arrived. Another officer assisted with handcuffing Mr. Usmann while Constable Farrand began the process to secure and render the firearm safe. The firearm that was confiscated from Mr. Usmann was a 40 Calibre Smith and Wesson firearm.

The make and model of the handgun was CZG2000 and it had a serial number Z0018. [ 33 ] In cross examination of Constable Farrand the following exchange occurred: “Q. Just to be clear the only description you had of people involved in this complaint was ‘black males’ correct? A. Associated to a vehicle, correct. Q. You are told that there is a vehicle stop happening about a block north of where you are when you see these two black males, correct? A. Correct. Q. You would have stopped any black males in the neighbourhood? A. I don’t think that is fair to say.

I wouldn’t have just spotted a black male and pulled over. There was more to it than that. It was the running, it was the proximity, it was the description, it was the time of day. There is a number of factors besides from ‘black male’ that caused me to speak with Mr. Usmann. Q. Okay, let’s take those one at a time. ... You mention earlier that black males associated with vehicle but you have no way of knowing that these two black males were associated with the vehicle that stopped up the street. Is that fair to say? A. I suspected that they could be. Q.

Wouldn’t that apply to any black male walking down the sidewalk in that neighbourhood at that time A. Not necessarily, I stopped these two particular black males, given what was spoken about in combination with everything. That’s why they were stopped. Not just alone the fact that they were black. Q. The combination of everything is what I’m trying to unpack and look at individually. We talked about the time, physical description being black males, the proximity to the physical stop, we talked about the fact that they were running across the avenue. Have I left anything out? I want to make sure we get everything.

A. The way they were running was a factor. Q. I asked you about that. Let’s unpack that a little bit. You described it as a panic run, correct? A. Correct. Q. Does that have to do with the speed of the way they were running or something else? A. It’s again a combination of everything. It is the speed in which they were running. It wasn’t how do you say... If I was to go for a jog for example, my stride would be consistent, I would be focussed on running itself. It would be consistent. They were running in a hurry is how I would describe it. Panicked. It didn’t appear at face value...

My perception of them was not that they were out for exercise or a jog. They were running from something. Q. I’m not challenging that that is your perception. But what was your perception based on? A. The cadence of their stride; again not looking before you cross the road way. I don’t seem to recall them wearing athletic equipment but I can’t say what they were wearing at the time. I just remember having that thought and that perception. Q. But you can’t tell us what they were wearing? A. That’s correct.

Q. Okay, anything else to it? I want to give you a full opportunity to explain. A. I appreciate that. Just every gut extinct as a police officer made me believe that I should talk to these two people”. [ 34 ] I found Constable Ferrand to speak in a candid and matter of fact manner. He was not hesitant in his responses. He was clear. He presented as a credible witness. Testimony of Constable Shawn Cline [ 35 ] On August 16, 2015, Constable Cline was just 2 days into the on-street portion of his training as a police officer.

He was partnered with Constable Farrand. [ 36 ] He gave evidence that he and Constable Farrand were involved in investigating the weapons complaint call that night. He recalled that there was information broadcast over the police radio that there were shots fired in the area of 107 Avenue and 109 Street. He said that he and Constable Farrand headed into the area. He recalled that the suspect vehicle involved was a 2015 Toyota Camry.

He indicated that updates were broadcast and he recalled learning over the broadcast that the suspect vehicle left the area of the initial complaint and was stopped in the area of 106 Street and 108 Avenue. It was also broadcast that some of the passengers aboard the suspect vehicle had fled.

Constable Cline said: “When we learned over the radio that since then there was a vehicle and there were passengers aboard that vehicle that had fled the vehicle, we were looking to see if they were in our area, because we were quite close to where that vehicle was, within 3 or 4 blocks, as we were headed west bound down 107 Avenue”. [ 37 ] Constable Cline said that he then observed the following: “It was quite quiet as I recall, it was around 03:07 when we initially learned of this... as we were heading West bound on 107 Avenue we saw two black males run across the avenue in front of us, at that point based on the proximity of where we spotted them and where the vehicle was believed to have been stopped and passengers fled as well as there not being anyone else that was out and about at that time and they matched the description that was available to us at the time, we turned around on 107 th Avenue and stopped them on 106 Street just south of 107 Avenue”. [ 38 ] Constable Cline was also asked about the information he had about the people having fled the suspect vehicle.

He was asked when he had received that information and when he saw the two individuals running across 107 Avenue. He said this in response: “It would have been very shortly thereafter. I believe when we first responded to the call again before the vehicle component was known, we were probably 12 to fourteen blocks away.

It wasn’t until we were getting quite close that suddenly that new information became known and I don’t have exact timings but I would say probably within 30 seconds to a minute after that information was known”. [ 39 ] Within 30 seconds to 1 minute of learning that individuals had fled the suspect vehicle is when Constable Cline says he saw “two black males” run across 107 Avenue. One of which we know now was Mr. Usmann. [ 40 ] Constable Cline gave evidence that he did not recall any other people in the vicinity of where he and Constable Farrand stopped the suspects.

He went on to say: “To my recollection it was very quiet. Based on the hour. I don’t specifically recall other people or vehicles being around. That’s specifically why it was so suspicious”. [ 41 ] Constable Cline was the passenger in the police car. He said that he approached the other suspect identified as Mr. Abrahim. He said that he got out of the police car and informed that individual that he was being detained in relation to a weapons complaint that occurred near-by and that he matched the description of the suspects. Meanwhile, Constable Farrand approached the other suspect that we now know was Mr.

Usmann. Constable Cline gave evidence that he recalled Constable Farrand saying out loud “gun”. After that he believed that there was an even higher risk that the person he was dealing with may have a firearm as well. He then placed Mr. Abrahim in handcuffs. [ 42 ] The only detail that he could recall was that Mr. Abrahim and Mr. Usmann were black males. When asked whether he recalled what they were wearing, he could not remember, but he did say he did not recall that it was “jogging attire”. [ 43 ] Constable Cline presented as forthright witness.

However, I do note that the time that he recorded of when the call came in (3:07AM) is not consistent with the testimony of the other witnesses. I find that Constable Cline’s belief in regard to the timing of the call was honest but mistaken and I do not otherwise have any concern with his testimony. Testimony of Constable Lance Lazaruk [ 44 ] As at August 16, 2015, Constable Lazaruk had been working for the Edmonton Police Service for 5.5 years.

At the time he was working as a patrol constable in downtown division; however, on the day in question he was acting Sargent of the patrol squad and was on duty. [ 45 ] As acting Sargent he had a number of responsibilities that night including overseeing “calls for service” within the division.

Constable Lazaruk gave evidence that he recalled that the nature of the call that night was a report of a weapons complaint that occurred at 109 Street and 107 Avenue. [ 46 ] The details that he recalled are as follows, shortly before 2:50AM: “The dispatch relayed that a reporter had witnessed a group of males arguing with a female. At one point he described that one of the males had produced a handgun which was fired into the air. He then reported that the same male and the same group entered into a silver

Toyota car. He also provided the license plate number of that car and the car left the area. I believe east bound on 107 Avenue. The reporter followed the car into the area of 106 Street and 108 Avenue where a black male exited and shot the handgun in his direction.

The witness then stated two of the males had left the area on foot while the vehicle exited the area and he lost visual continuity of that vehicle as it travelled north bound on 107 Street”. [ 47 ] Constable Lazaruk also recalled that the description provided of the other individuals at the scene of where the original call took place was “group of black males”. He also made note of the license plate which was K94513. Constable Lazaruk took steps to respond by attempting to locate the suspect vehicle.

He did not manage to locate the suspect vehicle but heard updates over the police radio that other units had located the suspect vehicle. [ 48 ] Constable Lazaruk further gave evidence that he proceeded to the “high risk stop”. He said that it was approved as a high risk stop given the nature of the incident and given that he was the only person with a patrol carbine which he described as an “AR15 variant – a long gun”. [ 49 ] The “high risk stop” was located just north of 108 Avenue on 106 Street.

He said that he recalled learning that there were two other males who were reported to have been stopped just south of the location of the “high risk stop”. [ 50 ] His involvement after the stop was to conduct an “article search” from the location of the “high risk stop” along 106 Street to where the two males were apprehended. He was searching to see if any articles may have been discarded. He explained this was done because a firearm had been found on one of the males. He further gave evidence that the

article search was conducted mainly for public safety reasons to ensure no other weapons may be encountered by members of the public. He said he did not find any articles discarded. [ 51 ] As for the busy-ness of the area, he said he did not observe any people along 106 Street. He did say that along 106 Street and near 108 Avenue there was little to no traffic. He said 107 Avenue is a “busier street” and “there was some vehicle traffic present”. [ 52 ] Sargent Lazaruk presented as a credible witness. There was nothing in his testimony that led me to believe otherwise.

Testimony of Staff Sargent Randy Wickins [ 53 ] Retired Staff Sargent Wickins was working the night of August 16, 2015. At that time Staff Sargent Wickins had been with the Edmonton Police Service for approximately 30 years and was the watch commander for the downtown division. [ 54 ] He gave evidence that he heard over the police radio the call and headed into the general area of the investigation. He then heard that Constable Farrand had seen the suspects and then later heard that Constable Farrand had located a firearm on the suspect.

He went to assist Constable Farrand and Constable Cline. [ 55 ] He gave evidence that he saw Constable Farrand on top of the suspect we know now to be Mr. Usmann. Mr. Usmann was “lying prone on the ground”. He approached them. Constable Farrand told him that he located the firearm in the waistband on Mr. Usmann. Staff Sargent Wickins directed Constable Farrand to secure the firearm of which he took possession and custody. Staff Sargent Wickins then took control of Mr. Usmann so that Constable Farrand could do so. Moments later other officers began arriving.

Once the other constables arrived, Constables Meunier and Furman took Staff Sargent Wickins’ position and conducted a “frisk search” of Mr. Usmann while Mr. Usmann remained lying on the ground. [ 56 ] He recalled that when Mr. Usmann stood up, there was a “plastic bag” and wrap on the ground where Mr. Usmann was lying. He told another constable who had arrived to pick it up. It appeared that there was white powder in the bag. Staff Sargent Wickins suspected that the white powder was a street drug. [ 57 ] Staff Sargent Wickins said he believed that when he arrived at the scene and took over custody, that Mr.

Usmann was under arrest on reasonable grounds. He said at that point he was under arrest for possession of a firearm. [ 58 ] Staff Sargent Wickins also recalled having authorized a strip search of Mr. Usmann. Staff Sargent Wickins thought a strip search was necessary in the circumstances because: “It was based on the circumstances of offence. It was weapons offence. I believe he was lawfully arrested. When arrested there was a firearm and there was a quantity of what I believed to be drugs underneath him. I knew that he would be going downstairs to wait for bail hearing with whatever charges would be laid on him.

In our custody in downtown division it is extremely unlikely he would be held alone. It was the busiest temporary holding cell in city and I could not guarantee he would not be housed with someone else. Based on the evidence I had more than a reasonable suspicion there could be other items, more evidence that would have been missed in a frisk search”. [ 59 ] Staff Sargent Wickins presented as a credible witness. His memory was remarkable. There was nothing in his testimony that led me to believe otherwise. Testimony of Constable Andrew Furman [ 60 ] Constable Furman was also on duty on August 16, 2015.

At the time of the incident he had approximately 3.5 years of experience with the Edmonton Police Service. He was training Constable Meunier that night. [ 61 ] That night he recalled that just before 3AM it was broadcast over police radio that there were two males, taken into custody, who were involved in a weapons offence. He and Constable Meunier drove to the location which was just south of 106 Street and 107 Avenue. When they pulled up he saw that there were two males in custody. Staff Sargent Wickins was holding Mr.

Usmann. [ 62 ] Constable Furman explained that he and Constable Meunier took over custody of Mr. Usmann from Staff Sargent Wickins.

They did a cursory search for weapons. He called it a “frisk search”. Constable Furman said that he asked Mr. Usmann if he had any weapons or contraband or anything on him that might hurt an officer. Mr. Usmann replied that he did not. He searched the right side of Mr. Usmann’s body and Constable Meunier searched the left side and discovered the ammunition. [ 63 ] He explained that by the time they arrived, he believed that Mr. Usmann was under arrest or that grounds existed to arrest Mr. Usmann for possession of a firearm.

He said that the purpose of the search was to “search for weapons, evidence and means of escape”. He said the authority on which he was relying to search Mr. Usmann was “incident to lawful arrest”. [ 64 ] In addition, as they were taking Mr. Usmann away, Staff Sargent Wickins noticed a bag and said that there was a bag there. Constable Furman said what he recalled was that another member of the squad picked up the bag and that he, Constable Furman, looked in the bag. He said it was cocaine. He described it as a “decent quantity”, more than a “user level amount”. [ 65 ] Before transporting Mr.

Usmann to the downtown division, Constable Furman said that he spoke to Staff Sargent Wickins to get authorization for a strip search. Constable Furman explained that this was due to: finding on Mr. Usmann the firearm, the ammunition and the drugs, and the fact that when he asked Mr. Usmann if he had anything else on him, Mr. Usmann was not truthful. Based on all of the circumstances including the fact that Mr. Usmann was going to be lodged in the detainment unit and would not likely be alone, he asked Staff Sargent Wickins to authorize a strip search of Mr. Usmann.

The strip search was authorized. [ 66 ] According to Constable Furman, he and Constable Meunier transported Mr. Usmann to the downtown division at approximately 3:13AM arriving at the downtown division at 3:17AM. Subsequently they conducted the strip search. He said this took less than 15 minutes. [ 67 ] Constable Furman explained that the strip search was conducted back at the police station in a private room where only he, Constable Meunier and Mr. Usmann were present. He further explained that nothing else was found on Mr. Usmann. [ 68 ] Constable Furman presented as a credible witness.

Testimony of Constable Steven Meunier [ 69 ] Constable Meunier was partnered with Constable Furman on August 16, 2015. He said that originally, he and Constable Furman were going to a separate event when they heard broadcast on the police radio that Constable Farrand had arrested someone with a gun. They then went there to assist with the arrest. [ 70 ] Constable Meunier’s testimony as to the timing and the description of events was very much in line with what Constable Furman said. He confirmed that he searched Mr. Usmann’s left side and found a loaded pistol magazine in his left pocket.

He believed at the time they were searching Mr. Usmann, that Mr. Usmann was under arrest for possession of a firearm. [ 71 ] He confirmed that the search they did was a “search incident to arrest” and that the search was conducted “to find weapons, evidence or tools for escape”. After he found the pistol magazine, he said he arrested Mr. Usmann for possession of a weapon. They lifted Mr. Usmann up from the ground and that is when Staff Sargent Wickins noticed a bag on the ground. He said he looked inside the bag and he saw what he believed to be cocaine. He said that they then read Mr.

Usmann his rights for possession of weapons and the drugs. [ 72 ] With respect to the strip search, he said that it occurred at 3:21AM and that it took about 6 minutes. It concluded at approximately 3:27AM. He confirmed that only he and Constable Furman were in the room where the strip search took place. It was conducted in a cell where the cameras can be turned off for privacy. He went on to further explain how the strip search was conducted the way he was taught. [ 73 ] When asked what he recalled Mr.

Usmann was wearing he said: “jeans and a t-shirt I believe”. [ 74 ] Constable Meunier presented as a credible witness. Testimony of Sargent Kevin Chung [ 75 ] Sargent Chung had been with the Edmonton Police Service for 12 years as at August 16, 2015. He explained at the voir dire his role. He said at the time he was in the crime scene investigations unit.

His main duty is to “collect, preserve and document crime scenes”. [ 76 ] Sargent Chung explained that he went to the scene located at 107 Avenue and 109 Street and he photographed and handled all of the evidence in this matter. [ 77 ] He went to the scene to take pictures and do an examination. By the time he started his search at the scene he said “it was 07:00 hours”.

It was brighter outside by that time of day and he could do his walk through and plan out how he would document the scene with his photos and general search of the area. [ 78 ] He explained that he was looking for bullet casings and any damage around any of the buildings. He said he found a bullet casing in the alley at the scene.

He seized that bullet casing. [ 79 ] Sargent Chung also labeled and identified all of the exhibits including, the firearm, the magazine, the nine bullets that were in the magazine, the casing that was found stuck in the ejector of the firearm, another magazine, the 11 bullets from the magazine and the casing he found in the alley. [ 80 ] Sargent Chung presented as a credible witness.

III. Issue [ 81 ] The primary issue for determination in this voir dire is whether a lawful investigative detention of Mr. Usmann occurred. IV. Analysis A. Was the Investigative Detention Lawful? a.

Section 9 of the Charter provides that everyone has the right “not to be arbitrarily detained”. Lawful detentions are not arbitrary.

Police have the common law power to conduct lawful investigative detentions: see R v Mann , 2004 SCC 52 at para 20 . [ 82 ] The law on the ability for police to conduct investigative detentions was summarized in R v Mann , at paragraph 45 by Iacobucci J. as follows: [P]olice officers may detain an individual for investigative purposes if there are reasonable grounds to suspect in all the circumstances that the individual is connected to a particular crime and that such a detention is necessary.

In addition, where a police officer has reasonable grounds to believe that his or her safety or that of others is at risk, the officer may engage in a protective pat-down search of the detained individual. Both the detention and the pat-down search must be conducted in a reasonable manner. [ 83 ] The “reasonable grounds to suspect” standard was very well explained by Karakatsanis J. in R v Chehill, 2013 SCC 49 . Although the facts in that case are not similar, the law is applicable.

At paragraphs 26 and 27 the Court stated: Reasonable suspicion derives its rigour from the requirement that it be based on objectively discernible facts, which can then be subjected to independent judicial scrutiny. This scrutiny is exacting, and must account for the totality of the circumstances . In Kang- Brown , Binnie J. provided the following definition of reasonable suspicion, at para. 75: The "reasonable suspicion" standard is not a new juridical standard called into existence for the purposes of this case.

"Suspicion" is an expectation that the targeted individual is possibly engaged in some criminal activity. A "reasonable" suspicion means something more than a mere suspicion and something less than a belief based upon reasonable and probable grounds. Thus, while reasonable grounds to suspect and reasonable and probable grounds to believe are similar in that they both must be grounded in objective facts, reasonable suspicion is a lower standard, as it engages the reasonable possibility, rather than probability, of crime .

As a result, when applying the reasonable suspicion standard, reviewing judges must be cautious not to conflate it with the more demanding reasonable and probable grounds standard. [Emphasis added]. [ 84 ] In this case, a number of patrol units with the Edmonton Police were investigating a call that involved the use of a firearm. The call came in at approximately 2:47AM.

Within 10 minutes of the initial call, one of the patrol units had located the suspect vehicle that was involved. [ 85 ] Constable Farrand and Constable Cline were on route to assist that patrol unit (as were others) with the “high risk traffic stop” of the suspect vehicle. While on route, just moments after the “high risk traffic stop” occurred, and within approximately 15 minutes of the initial firearms complaint being broadcast, Constable Farrand and his partner sighted individuals running in the opposite direction of the “high risk traffic stop”.

The two individuals matched the description they had: they were both males and they were both black. [ 86 ] Constable Farrand gave evidence that he believed that the individuals he saw were connected to the firearms complaint that was being investigated.

He cited the following grounds that aroused his suspicion: • The proximity of where he spotted the two men to where the high risk traffic stop was being conducted; • The circumstances in that someone had fled the suspect vehicle; • They matched the gender and physical description that was given – they were both black men; • The timing of the day – it was 3AM in the morning. There were not a lot of people out, and certainly not a lot of people running around at the time.

Constable Farrand said there were no other people that he could recall being around in the vicinity; and • They were running in what was described by Constable Farrand as a panic run. They looked to him to be running away from something. [ 87 ] If I were to consider each of these factors on their own, it would not be enough. However, that is not how this is to be looked at.

I have to look at the factors considered as a whole, as a constellation so to speak: see R v MacKenzie , 2013 SCC 50 at paragraphs 71 , 72 and 73. [ 88 ] In R v MacKenzie , Moldaver J. at paragraph 73 stated: Assessing whether a particular constellation of facts gives rise to a reasonable suspicion should not — indeed must not — devolve into a scientific or metaphysical exercise.

Common sense, flexibility, and practical everyday experience are the bywords, and they are to be applied through the eyes of a reasonable person armed with the knowledge, training and experience of the investigating officer. [ 89 ] At the end of cross-examining Constable Farrand, and after going through one by one, all of the factors that were observed by Constable Farrand, Defence counsel asked him: “Okay, anything else to it? I want to give you a full opportunity to explain”. In response,

Constable Farrand said: “I appreciate that. Just every gut extinct as a police officer made me believe that I should talk to these two people”. [ 90 ] Constable Farrand was clear that it was not any single observation alone that he made, but rather it was all of the observations he made in total together that led him to stop Mr. Usmann.

That in my opinion is what he was referring to when he answered the question asked of him by Defence counsel. [ 91 ] In this case, considering the totality of the constellation of factors cited by Constable Farrand, and taking into account his training and experience, I find that he had reasonable grounds to suspect that Mr. Usmann was connected to the firearms complaint that was being investigated.

Constable Farrand’s reasonable suspicion was based on objectively discernable facts. [ 92 ] As well, given the nature of the complaint that was being investigated, and given that a firearm was involved with shots fired, I find that Constable Farrand had reasonable grounds to believe that his safety or that of others, including the safety of Constable Cline were at risk. In the circumstances, I do not think it was unreasonable for Constable Farrand to have had his gun at the “low ready position”.

He was investigating a firearms complaint and had reasonable grounds to suspect that the two individuals that they had detained were involved. It was reasonable for him to have conducted the pat down search in the manner that he conducted it. Again, I find that his subjective belief was based on reasonable grounds. [ 93 ] I further note from the evidence that Constable Farrand and Constable Cline both properly announced themselves when they exited their police vehicle and explained why they were detaining the two men – in relation to a firearms complaint.

Although it was not in issue and it was admitted by the Crown, the investigative detention occurred the moment Constable Farrand turned his police car lights on. [ 94 ] In all of the circumstances, considering the whole of the evidence and constellation of factors, I find that the detainment and pat down search of Mr. Usmann were lawful. B. Was the Search Incidental to Arrest Lawful? [ 95 ] In addition, based on the fact that a firearm was found on Mr.

Usmann, I find that Constable Furman and Constable Meunier had reasonable and probable grounds to conduct the subsequent “frisk search” that was incidental to the arrest. Accordingly, I find that the search incidental to arrest was also lawful. C. Was the Strip Search Lawful? [ 96 ] Furthermore, I find that Constable Furman had additional reasonable and probable grounds for concluding that a strip search was necessary in the particular circumstances of the arrest of Mr. Usmann. The particular circumstances cited by Constable Furman, on which I base my finding are: a. The firearm was found on Mr.

Usmann after the pat-down search was conducted; b. In the search incidental to arrest Constable Meunier discovered the magazine; c. When Mr. Usmann was lifted off the ground, underneath or near where he was lying in the prone position they found a bag of cocaine; d. Mr. Usmann was not truthful – when he was asked before the search incidental to arrest whether he had anything on him, he said he did not, yet they discovered the magazine and the cocaine; and e. Constable Furman raised the issue of safety, safety of the police officers and other detainees, and of Mr. Usmann were at stake. They knew that Mr.

Usmann would be held in a cell with others. [ 97 ] Also, I find that there existed a positive step and protocol to obtain authorization before conducting a strip search, which entailed verifying with a senior officer that there are sufficient additional reasonable and probable grounds for the strip search. Based on the evidence of Constable Furman and Staff Sargent Wickins, I find that in this case, the authorization was properly obtained. [ 98 ] The evidence established that a strip search of Mr. Usmann was conducted in a private room at the downtown police station with Constables Furman and Meunier in the room.

Counsel for Mr. Usmann advised that no issue was being taken of the manner of the strip search. In any event, I believe that the evidence given of the manner in which the strip search was conducted supports my finding that the strip search was conducted in a reasonable manner. [ 99 ] In the result, I find that additional reasonable and probable grounds existed to conclude that a strip search was necessary in the circumstances of this case and that the strip search itself was conducted in a reasonable manner. D.

Racial Profiling – Did That Play a Role in This Case? [ 100 ] This case is distinguishable from the facts of R v Le , 2019 SCC 34 . A distinguishing factor in this case, is that it involved an investigation of a crime that was happening in real time. Constable Farrand was on route to assist with the “high risk traffic stop”. He was investigating a 911 call and a report of a firearms complaint.

As mentioned, the crime that was being investigated was unravelling in real time and being broadcast over the police radio; whereas in R v Le , the police officers involved were not investigating any crime or investigating any call. They were on patrol and were found to be trespassing when they stepped into the private backyard where Mr. Le and the other men were.

[ 101 ] Furthermore, safety was not an issue in R v Le , as there had been no reported use of a firearm (or any weapon for that matter) like there was in this case. The police officers in R v Le were not investigating a crime as the officers in this case were. Given the nature of the crime involved, it was not unusual that more than one police unit was involved.

It was expected. [ 102 ] I find that given the nature of the crime that the Edmonton Police Service was investigating, and all of the factors that raised Constables Farrand and Cline’s suspicions about the two men they saw running across 107 Avenue, that they would have been derelict in their duty had they not stopped the two men they saw. [ 103 ] In his closing argument, Counsel for Mr. Usmann advised me that Mr. Usmann was not suggesting that he had been racially profiled. However, he urged me to be sensitive to the issue. I respect that. I am aware of the systemic racism that exists in our society.

I assure you, Mr. Usmann, that in arriving at my decision, I have considered that issue and all of the evidence that was before me. [ 104 ] I am disturbed by the fact that people are often discriminated against because of the colour of their skin, or their ethnic background, or their gender, or sexual orientation or their religion. To live in this society without fear for our lives, without fear of being discriminated against, with equal opportunity, is sadly not a reality for many. I am sorry for that. We cannot give up. We must be resilient.

Everyday, we must move forward, we must learn, we must teach, and we must reconcile and do better, be better and bring out the best in each other as human beings. [ 105 ] The issue of racial profiling came up in the context of a detention in the case of R v Le .

As per Brown and Martin JJ. in R v Le , at paragraph 78 : [R]acial profiling is primarily relevant under s. 9 when addressing whether the detention was arbitrary because a detention based on racial profiling is one that is, by definition, not based on reasonable suspicion. [ 106 ] In R v Grant , 2009 SCC 32 , Binnie J. stated: A growing body of evidence and opinion suggests that visible minorities and marginalized individuals are at particular risk from unjustified “low visibility” police interventions in their lives. [ 107 ] Of serious concern is that the body of evidence and opinion as described by Binnie J., 11 years later has not stopped.

In fact, it continues to grow. In R v Le , Brown and Martin JJ. discussed a report of the Ontario Human Rights Commission (“OHRC”) and said the following at paragraph 93 about the report: The OHRC report reveals recurring themes: a lack of legal basis for police stopping, questioning or detaining Black people in the first place; inappropriate or unjustified searches during encounters; and unnecessary charges or arrests (pp. 21,26 and 37).

The report reveals that many had experiences that have “contributed” to feelings of fear/trauma, humiliation, lack of trust and expectations of negative police treatment. [ 108 ] In a recent message dated June 5, 2020 by the Chief of the Commission and Tribunals, Alberta Human Rights Commission, he stated: At this moment, Black people across North America, and their allies, are raising their collective voices to fight against the systemic racism and injustices that continue to marginalize the Black community. This comes in response to the police killing of George Floyd in Minneapolis, Minnesota on May 25, 2020.

This act of severe injustice has brought to light, in the most extreme way, the systemic racism that Black people continue to face. Although this tragedy occurred in the United States, we cannot ignore the anti-Black racism that exists in Canada, nor can we ignore our own history of slavery, indentured servitude, and white supremacy. It's time to address the individual and systemic racism that exists in our legal, health, education, social, economic, and political structures and that hinders full equality for all.

The Commission supports the Black community in Alberta and across the country in seeking equality and countering racism and discrimination. A number of organizations in Alberta are doing important work to further the #blacklivesmatter movement and prevent and counter the discrimination that Black people face. Now is the time to listen. Learn. Understand. And to raise your voice. Educate yourself on the history of slavery and white supremacy in Canada and Alberta. Learn about the #blacklivesmatter movement.

Seek to understand the legacy and intergenerational impacts of racism, racial discrimination, inequality, and injustice. Support groups and organizations that are doing crucial anti-racism work here in Alberta. Be an ally by speaking up and speaking out against racism and hate toward Black, Indigenous, and racialized people and communities when you see it. Black rights are human rights.

Together, let's use our voices and take action to create change and build a society that is truly equal for all. [ 109 ] Being acutely aware of the systemic racism that exists in our society, this is a matter that needs to be thoughtfully considered. So, was Mr. Usmann detained because he was subject to being racially profiled or was he detained because there was reasonable suspicion? [ 110 ] It was admitted by Constable Farrand and Constable Cline, the two officers who detained Mr. Usmann and Mr.

Abrahim on August 16, 2015 that the only physical description they had of the individuals involved with the firearms complaint was their gender and the colour of their skin. They knew that there were 4 black men involved, one of whom fired the firearm. However, they were also aware of the make and model of the suspect vehicle as well as the license plate number. The suspect vehicle was confirmed to be the vehicle involved in the firearms complaint when it was stopped north of 108 Avenue on 106 Street. The report that 4 males got into the suspect vehicle was broadcast over the police radio.

It was also broadcast and known to Constable Farrand and Constable Cline before they detained Mr. Usmann and Mr. Abrahim, that passengers in the suspect vehicle had fled that vehicle and were on foot. They detained Mr.

Usmann and Mr. Abrahim just one block south of where the “high risk vehicle stop” occurred. [ 111 ] In this case, I find that Constable Farrand had reasonable suspicion based on the constellation of factors that he raised in his evidence. It was not just the colour of Mr. Usmann’s skin that raised his suspicion, but it was also the fact that there were two men, running across the 107 Avenue in what Constable Farrand described as a “panic run”. The time of day that they were running was a factor as well – it was approximately 3AM in the morning.

Constable Farrand could not recall that there were other people out running at that time of the morning. I believe that to be true. Also, the proximity in time and place of where the “high risk vehicle stop” occurred is significant. According to Constable Cline, they saw the two men running within 30 seconds to 1 minute of when the “high risk vehicle stop” took place. The “high risk vehicle stop” was only approximately 1 block north from where they detained Mr. Usmann and Mr. Abrahim at 106 Street and 107 Avenue.

These two individuals also happened to match the only physical description Constables Farrand and Cline had: namely, they were both male and they were both black. [ 112 ] When considering all of these factors combined together, I find that racial profiling did not factor into the investigative detention that occurred in this case. I find that Constables Farrand and Cline had reasonable grounds to suspect that Mr. Usmann and Mr. Abrahim were involved in the firearms complaint. V. Conclusion [ 113 ] In

summary I find that the investigative detention of Mr. Usmann was lawful and that upon his detention, Constable Ferrand had reasonable grounds to conduct the protective pat down search. I also find that there were reasonable and probable grounds for the search incidental to arrest by Constables Furman and Meunier and that there were additional reasonable and probable grounds for the strip search by Constables Furman and Meunier. Further, I am satisfied that all of these searches were conducted in a reasonable manner.

As such, the evidence of the firearm, the magazine and ammunition found, including the casing that was found in the alley by Constable Chung, as well as the cocaine that was found on the ground near where Mr. Usmann was detained are all admissible. [ 114 ] In conclusion, I dismiss the Charter application made by Mr. Usmann. Heard on the 17 th , 18 th , 19 th and 20 th day of November, 2020. Dated at the City of Edmonton, Alberta this 1 8 th day of December, 2020. J.C. Price J.C.Q.B.A. Appearances: Kathryn Laurie, Crown Counsel for Public Prosecution Service of Canada Paul L.

Moreau, Moreau & Company for the Accused