R v Prosper, 2023 ABCJ 84

In the Alberta Court of Justice Citation: R v Prosper, 2023 ABCJ 84 Date: 20230411 Docket: 210476255P1 Registry: Edmonton Between: His Majesty the King Respondent - and - Gunnar Prosper Applicant Reasons for Decision of the Honourable Justice F.K. MacDonald [ 1 ] The Applicant, Mr. Prosper, alleges that his detention was unlawful and arbitrary, without reasonable grounds, and clearly on a racist basis. In particular, the Defence alleges that the decision to handcuff Mr.

Prosper while he was detained was motivated in whole or in part by racism, thus tainting the whole of this detention and the evidence flowing from it. As such the Defence submits that Mr. Prosper’s rights under the Canadian Charter of Rights and Freedoms have been breached—specifically alleging breaches of Sections 7 , 8 , 9 and 10 . Consequently, the Defence asks that the evidence from Mr. Prosper’s detention and the search of his backpack and bags be excluded from evidence in this case, pursuant to Section 24(2) of the Charter . [ 2 ] The Crown takes the position that Mr.

Prosper was lawfully detained, that he was advised of the reason for his detention, and that there are no Charter breaches here which merit consideration under Section 24(2) . [ 3 ] For the reasons that follow I find that Mr. Prosper’s Charter rights were not breached; consequently, I decline to entertain any application under Section 24(2) of the Charter . The application is dismissed and the evidence from this voir dire application will be applied to the trial proper. THE EVIDENCE CST. JEFF BESLER [ 4 ] Cst. Besler has been with EPS for 9 plus years.

At 6:15 am on April 17 th he was on patrol in his marked police vehicle with his partner, Cst. Brett Rockabar.

[ 5 ] They were dispatched to a call about theft or suspected theft from vehicles at Crystallina Nera Way and 77 A Street. This was in the Crystallina Nera neighbourhood, which is primarily residential and is comprised of single-family dwellings with some condominium buildings. The neighbourhood extends from 66 th Street to 82 nd Street and from 167 Avenue to the Anthony Henday Drive. [ 6 ] The report he received was as follows –there were two native males on bicycles, one of which was wearing a red hoodie; the other was dressed in all black. They were last observed by the reporter heading west to 82 Street.

The crime reported was theft or suspected theft from vehicles. The two males were observed by the reporter looking into vehicles at Crystallina Nera Way and 77A Street. [ 7 ] As Cst. Besler was going north on 82 Street he and his partner observed a male on a bicycle wearing a red hoodie; he was indigenous. The officer believed that the male matched the description they had been given and they stopped the male-- Mr. Prosper. The stop occurred at 7:02 am. [ 8 ] Cst. Besler got out of the vehicle and said to Mr. Prosper, “Just Stop.” [ 9 ] Cst. Besler said that he explained to Mr.

Prosper that he was being detained for suspected theft from the vehicles in the area. Specifically, Cst. Besler recalled saying to Mr. Prosper, “We’re stopping you for theft.” (Page 15, ll. 17-19). Cst. Besler believes that he spoke first to Mr. Prosper. [ 10 ] Cst. Besler noted that Mr. Prosper was carrying a duffel bag over his shoulder and another smaller bag over his other shoulder. Cst. Besler recalls approaching Mr. Prosper from the front; Cst. Rockabar at the rear. [ 11 ] Cst. Besler told Mr.

Prosper to take off the bags so that he could be placed in handcuffs so that the officer could conduct a pat down search for weapons. [ 12 ] The officer explained that the reason he was going to put Mr. Prosper in handcuffs was to detain him for the suspected theft. The officer also stated that handcuffing was also for officer safety and to prevent Mr. Prosper from fleeing. [ 13 ] Cst. Besler explained that the information on the call did not lead his to belief that there was any immediate danger.

However, it is his experience when dealing with people suspected of a crime that he suspects that they might possess a weapon and that the person might also try and flee. The officer detailed that when investigating a variety of offences—from theft to assaults or robberies – that individuals have weapons—varying from knives, brass knuckles, and bear spray to break in tools. In this instance, because the complaint was theft from vehicles, he suspected that the person he stopped would have break in tools on them (Page 8, ll.19-23). [ 14 ] As Mr.

Prosper was removing the bag from his shoulder a third officer, Cst, Narayan, arrived on scene. Mr. Prosper put the bag on the ground. Cst. Narayan came to the bag and lifted it. Mr. Prosper then said words to the effect of “Be careful with the bag, there’s a firearm in there.” (Page7, ll. 22-24). Cst. Besler testified that Mr. Prosper said this without prompting. [ 15 ] Cst. Narayan looked in the bag and told Cst. Besler that there was a firearm in the bag. Cst. Besler then informed Mr. Prosper that he was under arrest for possession of the firearm. The arrest occurred at 7:03 am.

Also inside the bag was some stolen property, a large knife and some ammunition. Mr. Prosper was then searched, handcuffed, and taken to the police vehicle and read his

Section 10(

b) Charter rights. They were read to him at 7:14 am. The wording of the 10(

b) rights is not at issue in this case. Mr. Prosper confirmed that he understood and replied “Yes” when asked if he wanted to contact a lawyer. Mr. Prosper was then read the Caution, to which he replied that he understood. Mr. Prosper was subsequently taken to the police station where he was placed in a phone room at 7:47 am. He used the phone until 8:02 am. CST. BRETT ROCKABAR [ 16 ] Cst. Rockabar has been with EPS for 2 years; prior to that he served with the Calgary Police Service for 14 plus years. [ 17 ] Cst. Rockabar had a more detailed recollection of the information he and Cst.

Besler received from dispatch. Sorry, April 17th, 2021, at 6:50 AM, I was partnering with Constable Besler and we were dispatched to a complaint in the area of 953 Crystallina and Nera Way, Northwest. It was in relation to two suspicious males that were checking car door handles and a boat that was in the area. I was dispatched to that call; I was heading northbound on 82nd Street near 173 Avenue and while I was enroute I was made aware of the description of two of the males. One was described as a Native male, wearing a red hoodie, baseball cap and riding a bike.

The other male was described as a Native male, wearing all black, also riding a bike. [ 18 ] He specifically recalls that the dispatch detailed that the two males were trying car door handles and were on a driveway looking into a boat that was parked on the driveway. [ 19 ] As they were driving into the area to speak to the complainant he observed “a male matching the description wearing a red hoodie, baseball cap and riding a BMX bike” (Page 25, ll. 31-32). [ 20 ] Cst. Rockabar specifically recalls observing Mr. Prosper riding southbound on the east sidewalk of 82 Street just south of 173 Avenue. Cst.

Rockabar was driving. He decided to pull off the street and confront Mr. Prosper (Page 35, ll. 31-32). [ 21 ] Cst. Rockabar testified that he stopped the car 10 to 15 yards from Mr. Prosper. Cst. Rockabar could not recall his position or his partner’s as they approached Mr. Prosper, nor does he recall his position in relation to the bike. [ 22 ] Cst. Rockabar testified in detail how he placed the accused under detention. He exited the police vehicle and approached the accused. Cst.

Rockabar specifically testified that he explained the call they were responding to, he explained how the accused matched the description of the person they were looking for and he told Mr. Prosper that he was being detained until they could get some further information from the complainant.

[ 23 ] Cst. Rockabar testified that Mr. Prosper took off the duffle bag and identified himself. Cst. Rockabar initially testified that he placed the accused in handcuffs. However, he clarified by saying, “As I was placing him in handcuffs, I went to move the duffle bag and the accused made a statement revealing what was in the bag: “Careful there’s a loaded shotgun in the bag.” (Page 28, ll. 34-36). [ 24 ] Cst.

Rockabar testified that he went to move the bag out of the way because he did not know what was in in it, was concerned about weapons, and wanted it moved so he could place the accused in handcuffs. [ 25 ] Once the accused said this Cst. Besler placed Mr. Prosper under arrest. Cst. Rockabar placed the accused in handcuffs and then searched the bag locating a Defender style pump action shotgun – loaded, with the safety on. There was one round in the chamber and five rounds in the magazine. Cst. Rockabar was unclear about when he handcuffed the accused.

He could not recall if it was before or after the accused made the statement. He did state that he did not handcuff the accused with the bag on. His best guess was that the accused was handcuffed after the bag was moved and the accused made the statement. (Page 29, ll. 32-38) Cst. Rockabar confirmed that he handcuffed the accused. In cross-examination he confirmed that he handcuffed the accused after the comment about the shotgun. (Page 37, ll. 7-13). [ 26 ] Cst. Rockabar stated in cross-examination that prior to handcuffing Mr. Prosper, he had only general safety concerns with Mr.

Prosper. [ 27 ] He noted that Mr. Prosper was being cooperative. (Page 37, ll 26-28). [ 28 ] Neither Cst. Rockabar nor Cst. Besler observed any other individual on bicycles in the area. Cst. Rockabar did not recall Cst. Narayan doing anything on scene. He did not recall observing Cst. Narayan handle Mr. Prosper’s bag. Nor did he recall anyone directing Mr. Prosper to put down his bags. [ 29 ] Cst. Rockabar testified about the contents of the duffle bag—which had a DHL box with the address 903 Crystallina Nera Way and addressed to Vanessa Albers. It was a Blenders Sunglasses box.

An orange Blenders sunglasses bag was attached to a carabiner on a messenger bag slung across Mr. Prosper’s body. The photos of the items found in the duffle bag on the accused are contained in Exhibit v-7—which is nine photographs. As well, the officer testified that he found seven individually package dime bags of a brown substance in the messenger bag. CST. MASHAE NARAYAN [ 30 ] Cst. Narayan has been an EPS Constable for just under 8 years. He was alone on patrol when he too heard the dispatch of a break and enter call at Crystallina Nera area in north division.

His recall of the dispatch is as follows: A reporter had called indicating that she observed two males on bikes looking into cars, potentially trying to break into them, as well as a boat, I believe. She ended her call by saying that the individuals looked like they were heading towards 82nd Street. She described one of the individuals as wearing a red hoodie, the other individual, I believe, was all black riding a bike carrying like a spare tire or a bike tire or something like that. [ 31 ] Cst. Narayan was driving northbound on 82 Street and observed Cst.

Besler and Rockabar interacting with an individual on a bike on the east side of the road. He noted that the individual was wearing a red hoodie and had a duffle bag. Cst. Narayan pulled up an got out. He observed the other two Constables speaking to Mr. Prosper. He noted Mr. Prosper to be getting off his bike. He observed Mr. Prosper to put the duffle bag on the ground. He heard Mr. Prosper say something to the effect of “This isn’t my bag.” Cst. Narayan asked Mr. Prosper, “What’s in it?” To which Mr. Prosper replied, “A shotgun.” [ 32 ] Cst. Narayan could not recall if Mr.

Prosper was in handcuffs when he observed him talking to the two constables. [ 33 ] Cst. Narayan picked up the duffle bag and put it on the hood of Cst Besler’s vehicle and looked in it. He saw a shotgun. He left the bag then and told Cst. Besler and Cst. Rockabar that there was a shot gun in the bag. He left them there and went looking for the other suspect. He later arrested the second suspect “Jesse” at 169 Avenue and 77 th Street. That individual was arrested and was found to be in possession of a sawed off .22 caliber rifle.

That arrest occurred at 7:36 am. [ 34 ] At the time he observed the two officers dealing with Mr. Prosper, there was minimal if non-existent foot traffic in the area. He did not recall seeing any other pedestrian or bicycle traffic in the area while he was there. GUNNAR PROSPER [ 35 ] Mr. Prosper acknowledged that he has a criminal record for firearms related offenses and for failing to comply with court orders. In the early morning of April 17 th , 2021, he was with Jesse Skoreiko at his mom’s place at 11215 - 90 th Street. He was playing a video game with Mr. Skoreiko. He was also using heroin that evening; Mr.

Prosper agreed that his heroin use could affect his memory. [ 36 ] Mr. Skoreiko said that he was going to go to his uncle’s place. Mr. Prosper agreed to go with him: “I was dropping him off.” (Page 53, ll. 3-4) Mr. Prosper said that he did not have anything to do that night so he went. He described how Mr. Skoreiko kept on “going through neighbourhoods and stuff” and he followed Mr. Skoreiko who had the address on his phone. But they never got there and kept passing the same place and Mr. Skoreiko was saying, “we’re almost there” and then Mr.

Prosper got tired and left. [ 37 ] He said the police car pulled up very close and he thought that he was going to get hit. He said that the passenger police officer (Cst. Besler) told him to get off his bike. He said that the driver said to take off the bag. Mr. Prosper did so. He said that he was placed in handcuffs and then one of the officer’s asked him what’s in the bag and he replied that there was a loaded firearm in there. He believes it was the officer with the glasses, Cst. Rockabar, who asked him what was in the bag. He described how Cst. Besler was standing in front of the police vehicle and Cst.

Rockabar held his right arm and handcuffed him.

[ 38 ] He said that the officers asked him what he had in then other bag and he said that he told them that his heroin was in there. He noted that his bag was put on the hood of the police car by the passenger cop --Cst. Besler. Mr. Prosper does not recall observing Cst. Narayan at the scene. Mr. Prosper confirmed that he was told before being put in handcuffs that “he fit the description of a person.” CREDIBILITY FINDINGS [ 39 ] I do not find Mr. Prosper’s evidence to be credible or reliable. First, his explanation of his travels that evening is not believable.

The presence of the stolen property in his duffel plus the loaded sawed off shot gun clearly indicate that he was not merely “dropping off” a friend at an uncle’s house. I don’t accept his evidence on this point and I do not think he was being honest with this court. The hearsay report from the complainant of car doors being tried and a boat being looked into, plus Mr. Prosper’s possession of the stolen DHL parcel –the sunglasses--leads me to conclude that Mr. Prosper and Mr.

Skoreiko were -- at a minimum--bicycling around the Crystallina Nera neighbourhood committing thefts—both in possession of sawed off firearms. Mr. Prosper’s tale of dropping off his friend and getting lost is an improbable fiction. Secondly, he is an admitted heroin addict and had used that evening. Consequently, I do not find his evidence to be reliable. For example, Mr. Prosper says that he was “almost hit” by the police. Cst. Rockabar says that he pulled up 10 to 15 yards away. I accept the officer’s evidence as being accurate. I do not accept Mr.

Prosper’s evidence. [ 40 ] There is some confusion and overlap amongst the officers about who did what. I attribute this to the fact that all three converged on Mr. Prosper at once, first Besler and Rockabar and then shortly after Narayan. They addressed Mr. Prosper in that order. I am satisfied that the officers’ evidence is reliable. [ 41 ] I am satisfied that the events occurred as follows: • Police received the dispatch complaint of two native males on bicycles attempting to break into vehicles. • Cst. Besler and Cst.

Rockabar attend the Crystallina Nera neighbourhood and observe a male whom both subjectively believe to match the description provided to them in the dispatch. • The police drive up on the boulevard and sidewalk in front of Mr. Prosper. • Mr. Prosper stops, the officers exit and immediately advise him to stop and that he is under detention for suspected theft. • I find that both officers subjectively believed that Mr. Prosper might be armed with a weapon or break in tools and both subjectively believed that handcuffing Mr. Prosper and conducting a safety search would be prudent in the circumstances. • Cst.

Besler told Mr. Prosper to take his bags off; Mr. Prosper does so and put them at his feet. I specifically find that Mr. Prosper was directed to remove the bags prior to and in preparation for handcuffing. • Cst. Narayan arrives. As the other two officers are speaking to Mr. Prosper. Cst. Narayan goes and picks up the duffle bag and asks, “What’s in it?” Mr. Prosper replies with words to the effect of, “Its not my bag; Careful there is a loaded shot gun in it.” • Cst. Narayan briefly examined the bag and confirms that there is a shot gun in it. Cst. Besler places Mr.

Prosper under arrest for possession of a firearm and both he and Cst. Rockabar handcuff Mr. Prosper. Cst. Narayan leaves. Cst. Rockabar continues to search the bag and discovers the other items (DHL box etc.) • I specifically find that Mr. Prosper was not handcuffed until after he was arrested and after the discovery of the shot gun. I reject his evidence that he was handcuffed immediately and that the gun was discovered after. THE LAW: INVESTIGATIVE DETENTION [ 42 ] The Supreme Court of Canada has recognized a number of common law police powers which permit interference with an individual’s liberty interests.

One of these common law powers is investigative detention. [ 43 ] Police may detain an individual for investigative purposes.

The Supreme Court of Canada stated the following in R v Mann , 2004 SCC 52 at para 45 (see also R v MacKenzie , 2013 SCC 50 at para 35 ). 45 To summarize, as discussed above, police 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. [ 44 ] Underlying investigative detention and any common law power exercised by the police is the ancillary powers doctrine as set out in R v Waterfield [1963] 3 All ER 659 (CCA) .

The Supreme Court of Canada confirmed in Mann that it was relying on the principles enunciated in Waterfield and has reiterated that reliance since: see Fleming v Ontario , 2019 SCC 45 at paras 43-45 ). [ 45 ] Under the ancillary powers doctrine, the lawfulness of a police action is determined by a consideration of two factors: 1) Does the action fall within the general scope of a statutory or common law duty? and 2) Does the action involve a justifiable exercise of police powers associated with the duty? [ 46 ] At the second stage of the Waterfield framework the court must ask whether the police action is reasonably necessary for the fulfillment of the duty.

The Supreme Court in R v MacDonald 2014 SCC set out three factors to consider in asking this assessment. 1. The importance of the performance of the duty to the public good;

2. The necessity of the interference with individual liberty for the performance of the duty; and 3. The extent of the interference with individual liberty. See R v MacDonald 2014 SCC 3 at para 37. [47] Reasonable suspicion has been carefully and repeatedly considered by the Supreme Court of Canada, most recently in R vAhmad 2020 SCC 11. My colleague Justice Hawkes has carefully summarized the principles underlying reasonable suspicion in R vHassard, 2021 ABPC 21: 1. It requires the possibility rather than the probability of criminal activity. 2. The suspicion must be focused, precise, and reasonable. 3.

It must be based on objective facts that withstand independent scrutiny. It has been summarized as a “constellation of objectivelydiscernable facts” giving the officer reasonable cause to suspect that a certain kind of crime was being committed by a particular personor in a particular place. 4. Characteristics that are broadly applicable to innocent activity are not markers of criminal activity. While innocent explanations orexculpatory information remain relevant police are not required to undertake further investigation to rule out these alternatives.

Anofficer’s relevant training or experience may assist in differentiating what may appear equivocal from that which has greatersignificance in a particular context or subculture.[12] Mere hunches and intuition are not a basis for reasonable suspicion. As aresult, this standard is an important safeguard against bias of all forms. (emphasis added) 5. Reasonable suspicion is particularized to an individual or a location. Generalized suspicion is insufficient.

However, all of theobjective facts in support of the claim of reasonable suspicion must be considered together, and not measured individually or in isolationagainst that standard.[13] [48] Justice Hawkes concludes his review was follows. [10] Reasonable suspicion serves as a threshold requirement to permit investigative steps or other activities that impact and mayotherwise compromise Charter rights. As a result, courts have an obligation to undertake meaningful and exacting scrutiny toensure constitutional compliance.

Particular care must be taken to guard against the use of “hunches” or “intuition” that canserve to disguise conscious or unconscious stereotyping or racism.[14] The reasonable suspicion threshold also provides animportant safeguard against operations that impact the vulnerable or marginalized.[15] [49] The case law is clear that bias or enmity will invalidate a lawful arrest. See R v Storrey, (SCC), [1990] 1SCR 241 at pp 250-251: It should be noted, as well, that there is nothing to indicate that there was anything in the circumstances of the arrest which would makeit suspect on any other ground.

That is to say, there is no indication that the arrest was made because a police officer was biased towardsa person of a different race, nationality or colour, or that there was a personal enmity between a police officer directed towards the personarrested.

These factors, if established, might have the effect of rendering invalid an otherwise lawful arrest. [50] In R v Ahmad, the Supreme Court of Canada emphasises that the reasonable suspicion standard must be subject to judicialscrutiny and in particular the testing of the officer’s subjective reasonable suspicion to ensure that it is not tainted by stereotypical orprejudicial thinking.

Courts must be able to assess the extent to which the police, in seeking to form reasonable suspicion over a person or a place, rely uponovertly discriminatory or stereotypical thinking, or upon “intuition” or “hunches” that easily disguise unconscious racism andstereotyping. [51] The Court in Ahmad also stated, [157] First, the police officers’ investigation must be motivated by genuine law enforcement purposes. This was an integralcomponent of the test set out in Mack and Barnes and it remains integral under this revised framework.

It bears noting here that aninvestigation that is pursued in bad faith will not be one that is motivated by genuine law enforcement purposes (see Mack, atpp. 956-57 and 959).

Examples of bad faith in this context include pursuing an investigation that is motivated by racial profilingor based on information from a source that they know or have reason to believe is unreliable. [52] The term “Racial profiling” was defined by Justice Mark Rosenberg in R v Richards (1999), (ON CA), 26C.R. (5th) 286, 42 M.V.R. (3d) 70 (ON CA) and cited with approval by the Ontario Court of Appeal in R v Brown, (2003), (ON CA), 64 O.R. (3d) 161 (CA), Racial profiling is criminal profiling based on race.

Racial or colour profiling refers to that phenomenon whereby certain criminalactivity is attributed to an identified group in society on the basis of race or colour resulting in the targeting of individual members of thatgroup.

In this context, race is illegitimately used as a proxy for the criminality or general criminal propensity of an entire racial group. [53] The courts that have considered racial profiling have noted that it is not usually susceptible to proof by direct evidence.Rather, racial profiling can be inferred from the evidence where the court comes to the conclusion that the officers’ evidence about howor why the accused was singled out does not correspond with the facts of the case. [54] Finally Justice Paciocco in R v Dudhi, 2019 ONCA 665 said the following: [54] Racial profiling has two components: (1) an attitudinal component; and (2) a causation component.

As Brown and Martin JJ.explained in R. v. Le, 2019 SCC 34, at para. 76, for the majority of the Court:

[T]he concept of racial profiling is primarily concerned with the motivation of the police. It occurs when race or racial stereotypes aboutoffending or dangerousness are used, consciously or unconsciously, to any degree in suspect selection or subject treatment. [55] Justice Paciocco emphasises that if racial profiling taints to any degree the decision making then the decision is fatallyflawed. [59] As Brown and Martin JJ. said in Le, at para. 76, racial profiling occurs where race or racial stereotypes are used “to any degree insuspect selection or subject treatment” (emphasis added).

Similarly, in Peart, at para. 91, Doherty J.A. explained: [Racial profiling] is wrong regardless of whether the police conduct that racial profiling precipitates could be justified apart from resortto negative stereotyping based on race. For example, a police officer who sees a vehicle speeding and decides to pull the vehicle over inpart because of the driver’s colour is engaged in racial profiling even though the speed of the vehicle could have justified the officer’saction: Brown v. Durham Regional Police Force (1998), (ON CA), 131 C.C.C. (3d) 1 (Ont.

C.A.). [Emphasis added.] [62] In my view, it is self-evident that a decision need not be motivated solely or even mainly on race or racial stereotypes tonevertheless be “based on” race or racial stereotypes. If illegitimate thinking about race or racial stereotypes factors into suspectselection or subject treatment, any pretence that the decision was reasonable is defeated. The decision will be contaminated byimproper thinking and cannot satisfy the legal standards in place for suspect selection or subject treatment. [63] Put simply, passages such as para. 11 of R. v.

Brown, and para. 33 in Bombardier, are entirely consistent with the propositionaccepted in Le and Peart. Where race or racial stereotypes are used to any degree in suspect selection or subject treatment, therewill be no reasonable suspicion or reasonable grounds.

The decision will amount to racial profiling. [56] Justice Paciocco emphasised in his discussion that the grounds for arrest or investigative detention cannot be tainted by racialprofiling to found to be reasonable or constitutional: “a detention based on racial profiling is one that is, by definition, not based onreasonable suspicion”: at Dudhi at para 61 quoting R v Le, 2019 SCC 34 at para 78: “Where race or racial stereotypes are used to anydegree in suspect selection or subject treatment, there will be no reasonable suspicion or reasonable grounds.

Dudhi at para 63 [57] In short, racial profiling is neither objectively reasonable nor constitutionally permissible. WAS THE INVESTIGATIVE DETENTION TAINTED BY RACIAL PROFILING? [58] The answer to this question is “No.” The officers received information which reasonably implicated an indigenous male on abike wearing a red hoodie and black ball cap in thefts from vehicles. The call came in at 6:50 am and the vehicle stop was at 7:02 am.The origin of the complaint was in the Crystallina Nera neighbourhood and the accused, Mr. Prosper, was stopped within a few blocks ofthe neighbourhood.

In short, the information was particularised as to time and place and to the identity of the suspect—a native male on abike wearing particular clothing. Mr. Prosper matched the description. Pedestrian and bicycle traffic was minimal or non-existent. Inshort, there was a constellation of objectively discernible facts which reasonably support the officer’s suspicion that Mr. Prosper was asuspect in the thefts. To paraphrase Brown, criminal activity was not attributed to Mr. Prosper based on race.

Race was one of the detailsbroadcast identifying the suspect; race was not an illegitimate proxy for an actual detail identifying a suspect. [59] Plainly, the first stage of the ancillary powers doctrine is met—the stop and detention of Mr. Prosper falls withing the generalscope of the duties of preserving the peace, preventing crime and protecting life and property. I note that the officers advised Mr. Prosperof the reason for the stop, i.e. that he was a suspect in a theft. Cst. Rockabar told Mr.

Prosper that he was detained for the theft and thathe would be detained “until we figure out what’s going on.” (Page 27, ll. 12-14) [60] Given that the race of the suspect was particularised by the complainant there are no grounds to believe that Mr. Prosper wassubject of racial profiling-to any degree-in the stop. WAS THE DECISION TO HANDCUFF AND /OR DO A SAFETY SEARCH OFMR. PROSPER TAINTED BY RACIAL PROFILING? [61] The answer to this question is “No.” Cst. Besler indicated that it was his practice to search detained person for weapons. Heindicated as well he was going to handcuff Mr.

Prosper for officer safety and to prevent him from fleeing. He noted that he directed Mr.Prosper to remove the bags so that he could be patted down for weapons. Cst. Besler also stated that he suspected that Mr. Prosper wouldhave break in tools since the complaint specified that the perpetrators were breaking into vehicle. He detailed the variety of weapons andtools which he suspected might be found. I note that Cst. Besler has 9 years experience as a police officer. Consequently, that experienceand the opinion based on is entitled to some weight. Cst.

Rockabar also expressed concern about the accused being in possession ofweapons—he particularly mentioned bear spray. Cst. Rockabar wanted the bag out of the way because he did not know what was in itand so that he could place the Mr. Prosper in handcuffs. [62] Both officers indicated that they thought it was possible that Mr. Prosper was affiliated with Redd Alert, an Indigenous StreetGang. Cst. Besler said that since Mr. Prosper was indigenous, wearing red—a colour associated with that gang—and was suspected ofcommitting a crime at that time of day, that it was possible that Mr.

Prosper might be a member of the Redd Alert. He also stated that inhis experience it is very common for Redd Alert Members to have weapons. He also commented that gang affiliation with the colour redis very prevalent, especially in the northeast side of Edmonton (Page 21, ll. 35-39)—where this incident occurred. For all these reasonshe thought it was possible that Mr. Prosper might have a weapon on him. Cst. Rockabar stated that he had dealt with several members ofthe Redd Alert gang. He testified that Mr.

Prosper’s red clothing could have been an indicator “or it could have been a coincidence.” Hetestified that he was cognizant of this fact but that it was not at the forefront of his mind. I find that the officers subjectively believed thatMr. Prosper might be in possession of weapons or break in tools, given the nature of the complaint they were investigating. The officer’sbelief that Mr. Prosper might possibly be affiliated to an indigenous street gang played—at best—a minor

part in this assessment.

Nonetheless that assessment was not unreasonable. [ 63 ] The case law is clear that safety searches are permissible during investigative detentions-provided that the officer has the requisite grounds. See R v Mann at paras 40 and 45 ; R v MacDonald 2014 SCC 3 . [ 64 ] There are a multitude of cases considering the propriety of hand cuffing a subject during an investigative detention. Both the search and the handcuffing are subject to the Waterfield criteria noted above. Depending on the circumstances, the search or the handcuffing may or may not meet the Waterfield criteria.

See for example R v MacDonald 2014 SCC 3 regarding a safety search of a home; see R v Comrie , 2017 ABPC 14 where I reviewed the law regarding the use of handcuffs during an investigative detention. [ 65 ] Since I have found that Mr. Prosper was not handcuffed until after his arrest, I will not spend any time considering that aspect of this case. It is plain though that the officers detained Mr. Prosper, assumed control of his movements and asked that he remove that bag and that they were going to handcuff him in order to do a safety search. Do those actions and commands, impinging as they do on Mr.

Prosper’s liberty meet the Waterfield test? [ 66 ] Considering the first leg of the Waterfield test, it is clear that the officers actions fall withing the general scope of the duties of preserving the peace, preventing crime, and protecting life and property. Here they are investigating a crime and protecting property. [ 67 ] What of the second leg of the test? Were the officers’ actions reasonably necessary to carry out the duty? 1.

The importance of the duty to the Public Good [ 68 ] Public confidence in the administration of justice is eroded, as are civil and property rights, when property crime goes undetected, undeterred and unpunished. 2. The necessity of the interference with individual liberty for the performance of the duty [ 69 ] The detention here was brief and the degree of interference with Mr. Prosper’s liberty minimal. He was informed what the reason for the stop was. He was directed to stop and remove his bags. He was under no obligation to answer the officer’s question (Cst. Narayan).

The question asked of him was not threatening or coercive. 3. The extent of the interference with individual liberty [ 70 ] This interaction took a minute or two. It was in the street. –i.e. Mr. Prosper was not confined in a police car or cell; nor was he handcuffed. The officers briefly assumed control of his movements and their directions and questions to him were tailored to the potential danger that they perceived—i.e. that he was in possession of weapons or break in tools. I find that the officers subjectively had the reasonable grounds to believe that Mr.

Prosper might be in possession of weapons or break in tools because of the connection to the thefts from vehicles being investigated and in part because of the reasonable perception that Mr. Proser might be gang affiliated and therefore, armed. [ 71 ] Cst. Besler’s perception that he might be gang affiliated is objectively reasonable given all the facts of this case. In particular, I note his observation that in his experience encounters with Redd Alert are more frequent in the northeast of Edmonton, where this incident occurred.

In short, there were objectively reasonable grounds for the safety search and the safety search was reasonable necessary for the fulfillment of the duty that the police were engaged in. [ 72 ] The officers testified that they subjectively had grounds to detain and to search Mr. Prosper. I accept their evidence. I find that the officer’s grounds to detain and search Mr. Prosper were objectively reasonable, and hence authorized by law. [ 73 ] It is clear that racial profiling by the officers would negate the objective basis for an investigative detention or a safety search.

I am not satisfied that there is any evidence which would reasonably lead me to conclude that racial profiling played any

part in the detention and search here. [ 74 ] In short, I dismiss the defence application. The evidence from the voir dire will now be evidence in the trial proper, excepting Mr. Prosper’s answers and statements to the police which were uttered when he was detained and not yet given his Charter rights. Consequently, I need not consider in any detail the delay in administering the 10(

b) information in the detention. The detention was short and the delay in providing the 10(

b) information was prompted by the legitimate safety concerns discussed above. There is no 10(

b) breach here. [ 75 ] The application is dismissed. Heard on the 9 th day of January, 2023. Dated at the City of Edmonton, Alberta this 11 th day of April, 2023.

F.K. MacDonald A Justice of the Alberta Court of Justice Appearances: S. Naidu-Barrett for the Respondent D. Anderson for the Applicant