R v Abdulkadir, 2022 ABKB 700

Court of King’s Bench of Alberta Citation: R v Abdulkadir, 2022 ABKB 700 Date: 20221107 Docket: 160905634Q1 Registry: Edmonton Between: His Majesty the King Crown - and - Said Mohamed Abdulkadir Accused Restriction on Publication Identification Ban – See the Criminal Code ,

section 486.4 . By Court Order, information that could identify the Complainant must not be published, broadcast, or transmitted in any way. NOTE: Identifying information has been removed from this judgment to comply with the ban so that it may be published. _______________________________________________________ Reasons for Decisions and Judgment of the Honourable Mr. Justice W.N. Renke _______________________________________________________

[ 1 ] Mr. Abdulkadir faces two counts that remain from a 6-count indictment: 2. that he, on or about the 4 th day of August, 2016, at or near Edmonton, Alberta, did, in committing a sexual assault upon [the Complainant], cause bodily harm to the said [Complainant], contrary to section 272(2) (

b) of the Criminal Code of Canada ; and 3. that he, on or about the 4 th day of August, 2016, at or near Edmonton, Alberta, did knowingly utter, convey or cause [the Complainant] to receive a threat to cause death or bodily harm to [the Complainant], contrary to

section 264.1(1) (

a) of the Criminal Code of Canada . The Crown invited dismissal of the other four counts. I will refer to the other counts below when formally dismissing those counts. [ 2 ] The charges arose from an incident that occurred in the early morning of August 4, 2016, in Edmonton, Alberta. The main question is whether the Crown has proved beyond a reasonable doubt that the assailant was Mr. Abdulkadir. [ 3 ] The Crown’s evidence was proffered in a “blended” voir dire addressing a series of linked factual and legal issues.

Were I to find the Crown’s evidence not to be excluded under the Charter and otherwise admissible, the evidence would be admitted in the trial proper. Even if the evidence were admitted, some issues would remain respecting the reliability and probative value of evidence and whether the Crown had established the charged offences beyond a reasonable doubt. [ 4 ] My assessment will proceed as follows: • I’ll begin with the Complainant’s account of the material events on August 4, 2016 and her interactions with the first officer on scene. • I’ll then address the series of issues that arose from the time that Mr.

Abdulkadir was first observed by police until his arrest, as well as some post-arrest events relating to Mr. Abdulkadir. Charter violations were alleged, including arbitrary detention and unlawful arrest violating s. 9 of the Charter and excessive force respecting the use of a conducted energy weapon by an officer in violation of s. 7 of the Charter . • I’ll turn to the Complainant’s interactions with other police officers and the SART Nurse and to the photo line-up presented to the Complainant. Elements of the photo line-up process were alleged to have violated Mr. Abdulkadir’s right to a fair trial under s. 11(

d) of the Charter . • I’ll review the investigation of the crime scene and exhibits, as additional background to the Information to Obtain. • I’ll assess the Information to Obtain a Warrant to seize Mr. Abdulkadir’s blood sworn by Det. Lisa Paniak, which, with redactions, was alleged to have failed to support reasonable grounds for the issuance of the warrant, violating Mr. Abdulkadir’s rights under s. 8 of the Charter . • I’ll assess whether the seizure of Mr. Abdulkadir’s blood violated his right to counsel of choice protected under s. 10(

b) of the Charter and whether the warrant was executed in accordance with ss. 487.06 and 487.07 of the Criminal Code . • Should I have found any violations of Mr. Abdulkadir’s Charter rights, I will assess whether any of the evidence must be excluded under s. 24(2) of the Charter . • If any evidence probative of Mr. Abdulkadir’s guilt survives Charter challenge, I will then address, within the trial proper, whether the Crown has established the guilt of Mr. Abdulkadir for the charged offences beyond a reasonable doubt. [ 5 ] Before beginning the assessment, I should note some procedural matters. [ 6 ] Mr.

Abdulkadir was originally tried in 2018. He was acquitted. The Crown’s appeal was successful and the Court of Appeal ordered that Mr. Abdulkadir be retried: R v Abdulkadir , 2020 ABCA 214 . [ 7 ] Mr. Abdulkadir, as was his right, represented himself in this trial. An amicus curiae was appointed, Mr. Darin Slaferek. Mr. Michael Aytenfisu was appointed to cross-examine the Complainant. [ 8 ] All the police officers who testified were members of the Edmonton Police Service at the material times. [ 9 ] Mr. Abdulkadir did not testify.

He did not call any witnesses. [ 10 ] Transcript references shall be by date, page, and line number (date.page.lines). Table of Contents I. The Sexual Assault and the Complainant’s First Contact with Police . 7 A. The Complainant’s Account of Events . 7 B. First Officer on Scene . 8 C. Description of the Assailant 9 1. Complainant’s Testimony . 9

2. Cst. Grant’s Testimony . 9 3. Assessment 10 II. First Contact to Arrest of Mr. Abdulkadir 10 A. First Contact 10 1. The Broadcast Description . 10 2. Initial Observations . 10 3. Down the Breezeway . 12 4. Assessment 12 B. Flight and Chase . 18 1. The Events . 18 2. Assessment 18 C. Continuation of the Chase Down the Wooden Staircase . 21 1. Events . 21 2. Assessment 22 D. 9918-101 Street and the Arrest 24 1. Police Testimony . 24 2. Assessment 27 E. Post-Arrest Interactions between Mr. Abdulkadir and the Arresting Officers . 29 1. Cst. Lobay . 29 2. Clothing Seizure . 30 3. Royal Alexandra Hospital 30 4.

Alibi 31 5. Assessment 31 III. The Complainant Post-Offence . 32 A. Detective Lisa Paniak . 32 B. Royal Alexandra Hospital 33 1. SART Nurse – Donna King . 33 2. Detective Marci Koshowski 34 3. Assessment 35 B. Photo Line-Up . 35 1. Detective Koshowski and the Photo Line-Up . 35 2. The Complainant and the Photo Line-Up . 36 C. Assessment of the Photo Line-Up . 37 1. Authority to Exclude . 37 2. Aspects of the Photo Line-Up . 38 3. Conclusion . 41 IV. Investigation of the Crime Scene and Exhibits . 42 A. Det. Koshowski 42

B. Cst. Golysheva . 42 1. Background . 42 2. Crime Scene Investigation . 42 3. Mr. Abdulkadir’s Exhibits . 43 4. SART Kit Exhibits . 43 C. Continuity and the Crime Scene Investigation Unit 46 V. Analysis of the DNA Evidence Derived from the Complainant 46 A. Qualification . 46 B. The RCMP Laboratory . 47 C. Overview of DNA Assessment Process . 47 D. No Evidence of Contamination in the RCMP Lab . 47 E. Asceptic Techniques . 47 F. DNA Extraction . 49 G. Short Tandem Repeat DNA Typing . 49 H. Some Features of DNA Analysis . 50 I. Conclusions Reached in the First Report (October 25, 2016) 50 1.

MK10 - Leggings . 50 2. MK4 - Vaginal Swab . 51 3. MK7 - Anal Swab . 51 4. MK8 - Inner Groin Swab . 51 VI. Information to Obtain . 51 A. Reasonable Grounds and s. 487.05(1) 51 1.

Section 487.05(1) of the Criminal Code . 51 2. Reasonable Grounds . 52 3. The Test on Review .. 53 B. Redacted Elements . 54 C. Discussion of ITO Elements . 54 1. Description . 55 2. Alibi 55 3. Shoe Impression . 55 4. Complainant’s Injuries . 56 5. Photo Line-Up Identification . 56 6. Leggings . 57 D. Assessment 57 VII. Execution of the DNA Warrant 58 A. Events . 58 1. At ERC .. 58 2. Further Evidence . 59

3. Storage and Transmission of the Blood Sample . 60 B. Assessment 60 1. Privacy and the Right to Counsel 60 2. Duty to Hold Off and Right to Counsel of Choice . 61 3. Non-Compliance with ss. 487.06 and 487.07 . 63 C. DNA Evidence Transmission . 63 VIII. Second DNA Report (January 4, 2017) 64 A. Results of Analyses . 64 1. MK10 - Leggings . 64 2. MK4 - Vaginal Swab . 64 3. MK7 - Anal Swab . 65 4. MK8 - Inner Groin Swab . 65 B. References to Canadian Caucasian Population . 65 IX. Analysis under s. 24(2) of the Charter . 65 A. Framework . 65 1. Obtained in a Manner 65 2.

Bring the Administration of Justice into Disrepute . 66 B. Assessment - Avenues of Inquiry . 67 1. Seriousness of the Charter -infringing conduct 67 2. Impact of the breach on the Charter -protected rights of the accused . 68 3. Society’s interest in the adjudication of the case on its merits . 70 C. Balancing . 71 D. Voir Dire Evidence as Trial Evidence . 71 X. Trial Determinations . 72 A. Occurrence of the Offences . 72 1. Sexual Assault 72 2. Uttering Threats . 75 3. Identity of Perpetrator 76 B. Identification of Perpetrator 76 1. Identity as Person Charged . 76 2. Dock Identification by Complainant? . 76 3.

Matching the Description . 77 4. Mr. Abdulkadir’s Conduct 78 5. Photo Line-Up . 80 6. DNA Evidence . 83 7. Conclusion . 88 I. The Sexual Assault and the Complainant’s First Contact with

Police [ 11 ] I permitted the Complainant to testify by CCTV and with a support person. See 2022 ABQB 174 . A. The Complainant’s Account of Events [ 12 ] The Complainant’s testimony respecting the sexual assault and its immediate aftermath was as follows. [ 13 ] On August 4, 2016 in the early morning, the Complainant had been with her boyfriend at a 7-Eleven downtown, close to Grant MacEwan University. She decided to bicycle to her brother’s residence. She drove toward Grant MacEwan University. [ 14 ] It was late. No one was around.

She saw maybe one or two people walking. [ 15 ] She saw a man in the road in front of her. She got scared and tried to drive away. He ran after her and caught her. She told him “Please don’t hurt me” and tried to give him her bicycle. He dragged her by her hair from the road to a bush. He then dragged her by the hair to a carpark area, by a vehicle. He sexually assaulted her. He made her sit on his face. He made her give him a blow job. He forced his penis into her mouth. He put his finger in her anus and put his penis in her anus. He put it in “a little bit.” He told her to stick his penis in her vagina.

It was in her vagina “a little bit” but it came out. She told him it was in but it wasn’t. It was between her legs. He ejaculated between her legs. She managed to pull up her pants and run away. [ 16 ] She had communicated lack of consent throughout these events. She told her assailant she didn’t want to, repeatedly. She told him No when he wanted to put his penis in her anus. She testified that “I didn’t consent to anything that night.” [ 17 ] The Complainant testified that the “whole time he said he was going to shoot me, shoot my face off if I yelled.” He kept saying that.

She testified that “he had me by my hair the whole time.” [ 18 ] The Complainant yelled for help. She heard someone from a nearby apartment building ask her if she was ok and heard him say that he would call the police. She ran toward the 7-Eleven. The police pulled up in front of her, just before she reached the 7-Eleven. [ 19 ] In cross-examination, she confirmed that she had dropped her cellphone during the assault but the assailant returned it to her. The cellphone had no charge so she could not use it to call police. [ 20 ] The Complainant had never seen her assailant before the assault.

He was a stranger to her. [ 21 ] The Complainant testified that she was injured in the assault. Her head was tender from her hair being pulled. She had scrapes on her knees. Her back was bruised and scratched. B. First Officer on Scene [ 22 ] Cst. Corey Grant responded to the report of the crime in progress involving the Complainant. [ 23 ] The assault had occurred shortly before 2:05 a.m., Cst. Grant’s dispatch time. Cst. Grant arrived at the Complainant’s location at 2:14 a.m. Cst. Grant interviewed the Complainant near the 7-Eleven.

The Complainant told him that the assault occurred in an area North of 102 Avenue, between 111 and 112 Streets. Cst. Grant went with the Complainant to the crime scene. The Complainant directed him to a “location of importance,” 10235-112 Street, where part of the assault had occurred. A black Ford Escape was parked here. The assault had occurred by the hood then moved behind the vehicle. He did not notice any footprints, only “smudges” in the dirt behind the vehicle. [ 24 ] Cst.

Grant located a sandal or flipflop belonging to the Complainant by a nearby bush. [ 25 ] The Complainant’s bicycle was located propped up against a light post, some 20 or 30 metres from the offence location. [ 26 ] The Complainant provided a description of her assailant to Cst. Grant. Cst. Grant broadcast the description to other officers by radio. (I’ll return to the description below.) [ 27 ] Cst. Grant testified that when he encountered the Complainant, she was distraught and crying. Her hair was frazzled. Her hair clip was at the end of her ponytail. She had dirt on her back.

She was in her socks, without shoes. [ 28 ] Cst. Grant did not smell alcohol on the Complainant. He had no concerns that she was intoxicated. [ 29 ] While he was with the Complainant, Cst. Grant heard on the radio that a suspect in the attack on the Complainant was being pursued on foot by officers. Cst. Grant put the Complainant in his patrol car and began to drive toward the area of the foot pursuit to provide assistance. By the time he had reached the intersection of Jasper Avenue and 112 Street the suspect had been apprehended. [ 30 ] Cst.

Grant acknowledged that pursuing a suspect with a complainant in the vehicle was not usual practice and was a mistake on his part. If nothing else, a complainant’s identification of the accused could have been compromised by witnessing the arrest of an individual. However, the Complainant did not travel near the location of the suspect’s arrest and did not see the suspect who was arrested. C. Description of the Assailant

1. Complainant’s Testimony [ 31 ] The Complainant testified that she provided a description of her assailant to the officer who attended by the 7-Eleven, Cst. Grant. [ 32 ] Her description was as follows: • the assailant was o Black o tall o skinny; • he had a goatee • he was wearing o camouflage shorts o a white t-shirt. In cross-examination, she confirmed that she provided the description right after the attack occurred. The image of the person was “fresh in her mind.” She elaborated that he was about 5’ 10” or 11”. His skin tone was lighter. His moustache and goatee went “all the way around” his mouth.

When testifying she used her fingers to draw an outline around her lips down towards her chin – “like that.” He did not have a “full beard.” The shorts were a brown colour of camo, “army-looking.” She said that the camo was not in a leaf pattern, not like hunting camouflage. The camouflage just had patterns or shapes: it was “patterns of ... shapes and stuff ... I don’t know how to explain it.” 2. Cst. Grant’s Testimony [ 33 ] Cst. Grant testified to having received a description of the assailant from the Complainant.

His recollection of the description was essentially the same as the Complainant’s recollection of the description she provided. • the assailant was o a Black male o tall o thin o 19-20 years of age • he had a goatee • he was wearing o a white or tan shirt o camouflage shorts. The assailant “smelled of alcohol” and possibly had a lisp. The assailant was age 19-20. Cst. Grant confirmed this description in cross- examination. Cst. Grant confirmed that the Complainant did not provide a description of the style of the assailant’s hair other than hair length. [ 34 ] Cst.

Grant had broadcast the description of the assailant over the police radio. The description “would have” gone out immediately after he spoke with the Complainant. He did not note the time. 3. Assessment [ 35 ] No admissibility issues were raised respecting the Complainant’s description of the perpetrator or respecting the interaction of the Complainant and Cst.

Grant. [ 36 ] The assessment of the reliability of the Complainant’s description of the assailant is for the trier of fact at the end of the trial on all the evidence. [ 37 ] One evidential matter that should be clarified at this point is that neither the Complainant’s nor Cst. Grant’s testimony referred to the perpetrator having a “full beard.” Reference to that type of facial hair was made in the Complainant’s cross-examination, derived, it appears, from a statement that the Complainant made to Det. Paniak.

In response to this questioning the Complainant maintained that the perpetrator had a goatee, “like the thing that goes around the lips” (February24.48.2-8). I find that the facial hair descriptor used by the Complainant was “goatee” and that was the descriptor broadcast by Cst. Grant.

II. First Contact to Arrest of Mr. Abdulkadir A. First Contact [ 38 ] Early in the morning of August 4, Cst. Nathan Kennedy was in a patrol car with his partner, Cst. Patrick Turnell. Cst. Turnell was driving. They were in uniform. 1. The Broadcast Description [ 39 ] At around 2:05 a.m., Cst. Kennedy had heard a broadcast on the police radio system, asking members to be on the lookout for a suspect involved in a sexual assault and robbery. The area where the offence occurred was described.

The suspect was a Black male, about 6 feet tall, wearing light coloured shorts with possibly a camouflage pattern on them and a dark t-shirt. He had a goatee. Cst. Kennedy did not recall who provided the description he heard on the radio. [ 40 ] Cst. Turnell also heard this broadcast, referring to a Black male, age 20-25, wearing camo shorts, and a dark t-shirt. Cst. Turnell did not know who made the broadcast. He didn’t recall where he was when he heard the broadcast. [ 41 ] In cross-examination, Cst. Kennedy could not say whether he was told that the suspect was wearing a white or tan t-shirt.

He admitted that he might have been told that the suspect was wearing a white or tan t-shirt but he did not remember that now. [ 42 ] In cross-examination, Cst. Turnell confirmed that he had heard that the suspect was wearing a “black t-shirt.” He did not recall any reference to a light, white, or tan t-shirt. 2. Initial Observations [ 43 ] At about 2:40-2:44 a.m., Cst. Kennedy and Cst. Turnell were travelling Westbound on Jasper Avenue approaching 101 Street. They were driving slowly. Cst. Turnell was driving. (There was an issue about the exact time that events occurred.

Centrally administered time designations did not always match officers’ reported time designations. Cst. Turnell’s conducted energy weapon record (an automatic download) indicated that it was triggered at 2:38:50. If that time were accurate, the initial observations would have occurred earlier than 2:44, perhaps at around 2:34 or 2:35. The evidence did not permit a conclusion about the source of the temporal discrepancy. In my opinion, the time used by Cst. Turnell and Cst. Kennedy was marginally more favourable to Mr. Abdulkadir inferentially than an earlier time.

Further pursuit of this issue is unnecessary.) [ 44 ] Cst. Turnell testified that the foot traffic in that area at that time was very light: “Five to ten people max, if that even. Like, not many people on the sidewalks at all.” He didn’t remember seeing anyone else on the sidewalks. [ 45 ] Cst. Turnell confirmed that it was dark, but there was artificial lighting for the streets. Cst. Kennedy’s testimony was the same. [ 46 ] Cst. Turnell said he observed a Black male, wearing a dark t-shirt, in light coloured shorts. He matched the description Cst.

Turnell had heard – Black male, 20-25 years of age, wearing camo shorts and a dark T-shirt. In cross-examination, he said that he told Cst. Kennedy that he had seen a male matching the description they heard earlier. [ 47 ] Cst. Kennedy also saw a Black male, wearing a dark t-shirt and light shorts, walking towards the officers, East-bound on Jasper Avenue on the South side of the street. He fit the description of the suspect he had heard. While Cst.

Kennedy had agreed with the suggestion in cross-examination that he’d had a “fleeting glance” of the male, in re-examination he clarified that he’d been able to observe the male for a “good 5 seconds” as they approached, and he could see him through the side-view mirror. [ 48 ] Cst. Kennedy provided some detail: The T-shirt was over the individual’s head, the back of the shirt was over his head, and his face was “protruding from the neck hole.” [ 49 ] Cst. Kennedy said, it being close to 3:00 a.m. on Jasper Avenue, “there’s not a whole lot of people out.” [ 50 ] Cst.

Kennedy testified that the individual matched three of the suspect’s descriptors, Black male, dark T-shirt, shirt, light coloured shorts with possible camouflaged pattern. Cst. Kennedy confirmed that the information he’d received was that the suspect was 6 feet tall, but he could not tell the individual’s height as he approached. Cst. Kennedy did not observe the individual’s face and did not know if he had a goatee. Because the T-shirt was on the individual’s head, Cst. Kennedy did not know if the individual had long hair. [ 51 ] Cst.

Kennedy confirmed that when the officers passed the individual, he was just in front of the 7-Eleven that was then on Jasper Avenue near 101 Street. [ 52 ] Cst. Kennedy testified that he mentioned to his partner that the male fit the description of the person being looked for in the investigation. [ 53 ] Cst. Turnell drove about 100 feet past the individual, did a U-turn, then drove Eastbound down Jasper Avenue, past the individual. The patrol car drove slowly, but not too slowly since they did not want to alert him to their interest. Cst. Turnell stopped the patrol car near the Union Bank Inn.

They hoped to get a better look at the individual as he approached. [ 54 ] Cst. Turnell said he recalled Cst. Kennedy phoning Cst. Grant at this point. 3. Down the Breezeway

[ 55 ] By the Union Bank Inn there’s a “breezeway” or pedestrian-only path that leads Southbound to MacDonald Drive. The individual turned off Jasper Avenue and went Southbound down the breezeway. [ 56 ] Cst. Turnell drove West then South to come up to the MacDonald Drive exit of the breezeway so they could intercept the individual when he came out of the breezeway. As the vehicle looped around, Cst. Kennedy was in the process of getting a description of the assailant from Cst. Grant. Cst. Kennedy said that the descriptors he received from Cst.

Grant were no different “than what they were earlier, what were broadcasted earlier.” Cst. Kennedy, though, could not recall if Cst. Grant told him if the suspect was wearing a white or tan T-shirt. In cross-examination, Cst. Kennedy said he didn’t recall what exactly Cst. Grant had told him on the phone about the suspect’s description. [ 57 ] Cst. Turnell stopped the police vehicle. The emergency equipment was not on. [ 58 ] Cst. Turnell said he saw the male in a “full on sprint” coming off the walking path. When he saw the police vehicle, he went back to a walk. Cst.

Turnell believed it was the same person they had seen earlier. The clothing was the same. Cst. Kennedy’s observations were similar. [ 59 ] Cst. Turnell got out to speak to the individual. [ 60 ] Cst. Kennedy got out of the patrol car and told the suspect to stop, he needed to speak to him. The suspect was about 15-20 feet away. Cst. Kennedy said that he was not able to get a better look at the suspect’s shorts. At the time, Cst. Kennedy was still on the phone with Cst. Grant. [ 61 ] Cst. Kennedy couldn’t tell if the male had a goatee at this point.

It was fair to say he didn’t get a good look at his face. [ 62 ] The individual ran. [ 63 ] He sprinted down the hill toward the river valley. [ 64 ] A foot pursuit ensued. 4. Assessment [ 65 ] I’ll consider the circumstances to the point just before the male ran from the officers and their parked police vehicle. [ 66 ] At this point, did the officers have grounds for seeking to talk to the individual?

In particular, what is the significance of their error about the colour of the shirt the assailant was described to have worn? [ 67 ] I’ll approach these questions by assessing whether the officers had, in the circumstances, a reasonable suspicion that the individual they saw was involved in the offences they’d heard described earlier. (

a) Reasonable Suspicion [ 68 ] Reasonable suspicion has both subjective and objective elements. First, reasonable suspicion requires that an officer subjectively believed that an individual was possibly engaged in or had possibly engaged in an offence and believed that there was a reasonable basis for forming that suspicion. Second, reasonable suspicion requires that the grounds relied on objectively and reasonably supported the suspicion. That is, it was objectively reasonable to conclude from the relied-upon grounds that engagement in the offence was possible.

See R v Julom , 2022 ABCA 198 at para 53 ; R v Nesbeth , 2008 ONCA 579 , Rosenberg JA at para 19; R v Kang-Brown , 2008 SCC 18 , Binnie J at para 75, R v Chehil , 2013 SCC 49 , Karakatsanis J at para 27. [ 69 ] Reasonable suspicion concerns the inference or judgment of possible engagement in an offence, not probable engagement, and not engagement that is more likely than other inferences or judgments. [ 70 ] Reasonable suspicion must be assessed against the totality of the circumstances. See Chehil at paras 29 and 6 : [6] ....

The reasonable suspicion standard requires that the entirety of the circumstances, inculpatory and exculpatory, be assessed to determine whether there are objective ascertainable grounds to suspect that an individual is involved in criminal behaviour .... [ 71 ] Reasonable suspicion is assessed from the standpoint of the police officer who formed the suspicion, considered in light of the facts available to that officer.

Justice Moldaver wrote as follows in R v MacKenzie , 2013 SCC 50 at para 63 and 73 : [63] Thus, in assessing whether a case for reasonable suspicion has been made out, the analysis of objective reasonableness should be conducted through the lens of a reasonable person “ standing in the shoes of the police officer ” .... [73] 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 [emphasis added]. Police training and experience may permit an appreciation of the significance of facts that persons without the training and experience would miss. If training and experience are relevant to the appreciation of the significance of the facts, that must be demonstrated on the evidence.

See MacKenzie at para 62 . [ 72 ] As for particular types of evidence that might form part of the totality of circumstances, Justice Karakatsanis wrote as follows at paras 31 and 33 of Chehil :

[31] While some factors, such as travelling under a false name, or flight from the police, may give rise to reasonable suspicion ontheir own (Kang-Brown, at para. 87, per Binnie J.), other elements of a constellation will not support reasonable suspicion, except incombination with other factors. Generally, characteristics that apply broadly to innocent people are insufficient, as they are markers onlyof generalized suspicion. The same is true of factors that may “go both ways”, such as an individual’s making or failing to make eyecontact.

On their own, such factors cannot support reasonable suspicion; however, this does not preclude reasonable suspicion arisingwhen the same factor is simply one part of a constellation of factors. [33] Exculpatory, neutral, or equivocal information cannot be disregarded when assessing a constellation of factors. The totality ofthe circumstances, including favourable and unfavourable factors, must be weighed in the course of arriving at any conclusion regardingreasonable suspicion.

As Doherty J.A. found in R. v Golub (ON CA), [1997 CarswellOnt 2448, 34 OR (3d) 743, 117CCC (3d) 193 (ON CA), leave to appeal refused, [1998] 1 SCR ix ] (C.A.), at p. 751(OR), “[t]he officer must take into account allinformation available to him and is entitled to disregard only information which he has good reason to believe is unreliable”. This isself-evident [emphasis added].

See also MacKenzie at paras 71 and 72. [73] There is no requirement that particular facts forming part of the foundation for the reasonable suspicion must, individually, beevidence of unlawful behaviour or evidence of a specific criminal act. Justice Karakatsanis spoke to this in Chehil at para 35: [35] ... [T]he objective facts must be indicative of the possibility of criminal behaviour.

While I agree with the appellant’s submissionthat police must point to particularized conduct or particularized evidence of criminal activity in order to ground reasonable suspicion, Ido not accept that the evidence must itself consist of unlawful behaviour or must necessarily be evidence of a specific known criminalact. [74] The police do not have a duty “to investigate alternative explanations for constellations of factors giving rise to reasonablesuspicion:” Chehil at para 67.

Justice Karakatsanis stated in Chehil at para 34 that: [34] ... the obligation of the police to take all factors into account does not impose a duty to undertake further investigation to seekout exculpatory factors or rule out possible innocent explanations .... [75] A finding that a conclusion or inference is a reasonable suspicion or reasonable possibility does not entail that that theconclusion or inference is the only inference supported by the facts. That is the nature of possibilities. To say that a conclusion is possibledoes not exclude other conclusions as possible or render other conclusions impossible.

Once again, Justice Karakatsanis made this pointin Chehil at para 32: [32] Further, reasonable suspicion need not be the only inference that can be drawn from a particular constellation of factors. Much asthe seven stars that form the Big Dipper have also been interpreted as a bear, a saucepan, and a plough, factors that give rise to areasonable suspicion may also support completely innocent explanations. This is acceptable, as the reasonable suspicion standardaddresses the possibility of uncovering criminality, and not a probability of doing so. (

b) Subjective Belief [76] Both officers believed that the individual each saw could have been the perpetrator of the offences they heard about on thepolice radio. Each justified his belief by reference to the description of the suspect. On the evidence, each reached the conclusion ofpossible involvement in the reported offences upon seeing the individual coming down Jasper Avenue. [77] Was their conclusion reasonable? (

c) Objective Grounds (

i) What the Officers Saw [78] It is true that when the individual was first seen, he was not engaged in any conduct that might have independently attractedsuspicion. [79] He was seen on Jasper Avenue, a major artery in downtown Edmonton, close to the core of downtown. His location was not,by itself, suspicious. He was in the sort of place that anyone might be in were they in downtown Edmonton. [80] The crime scene was in the vicinity of 102 Avenue, between 111 and 112 Streets. The officers knew the area where theoffences had taken place. Mr.

Abdulkadir was first seen on Jasper Avenue and 101 Street, about 1.5 km away from the crime scene. [81] The offences against the Complainant had occurred some time before 2:05 a.m. Mr. Abdulkadir was first seen by the officersabout 40 minutes after that time. [82] The individual, then, was not at the very crime scene, but was not far from the crime scene.

He was seen on foot. [83] The time that had elapsed since the offences occurred would have permitted the perpetrator to travel to the place where theindividual was seen, even with some detours. (He was not seen in, say, Londonderry or by West Edmonton Mall.) It is true that theofficers had received no indication of the direction of the suspect’s travel, but where the individual was seen fell within the radius ofwhere the perpetrator could have been. [84] The individual was seen at about 2:40 a.m. The streets were not busy. No (or few) other individuals were in the area.

That is,at this time in the early morning, other individuals who might have matched elements of the description of the perpetrator were not on

the street. It was not as if the individual were arbitrarily selected as the possible perpetrator from a crowd or stream of pedestrians present at that place at that time. [ 85 ] The individual matched elements of the description broadcast. He was a young man. He was Black. He was wearing shorts. The shorts were light in colour, although a “camo” pattern was not recalled in testimony. Cst. Grant had mentioned in the broadcast (although Cst. Kennedy and Cst. Turnell did not mention this) that the perpetrator was thin. When first seen, whether he was thin would have been readily apparent. [ 86 ] I find that Cst.

Kennedy’s account of the first contact with Mr. Abdulkadir is accurate. Cst. Kennedy testified that the individual they saw had his shirt over his head with his face peeking out. That is a fairly unusual way to wear a shirt and would be a memorable observation, particularly for a new police officer, as Cst. Kennedy was then. [ 87 ] It follows that the officers could not have made observations about the individual’s hair length, even if they had information about hair length, because the individual’s shirt was over his head.

Neither officer made any observations about the facial hair of the individual. [ 88 ] I also find that by the time the individual came out of the breezeway, he was wearing his T-shirt normally. Neither officer commented about the individual having his shirt over his head at this point. Once the pursuit commenced, there would not have been time for a clothing adjustment.

The conducted energy weapon incident, to be discussed shortly, confirmed that the individual’s shirt was worn normally at that early stage of the pursuit. [ 89 ] It is true that there are many Black young men in Edmonton, perhaps particularly in the downtown area, and many of those young men will be thin.

It is true that many people wear shorts in August in Edmonton, and that many of those shorts would be light- coloured. [ 90 ] But what the officers saw was a young Black male, wearing light-coloured shorts, not far from the crime scene, not long after the offence occurred, in the very early morning, when no or few others were on the street. The individual they saw matched elements of the description of the perpetrator of the offences against the Complainant. [ 91 ] Moreover, they observed that individual to have engaged in unusual conduct as he went down the breezeway.

They drove by him and looped around so they could see his progress. Both saw him sprinting down the breezeway. When (in their judgment) he saw their vehicle, he slowed to a walk. Certainly, a reasonably possible inference from this conduct was that the individual had sought to evade police by sprinting away through the breezeway, but then he sought to conceal his intentions by walking slowly after he saw the police vehicle waiting. [ 92 ] The officers, though, got the shirt colour wrong. (ii) Error in the Description [ 93 ] The Complainant referred to a white T-shirt. Cst.

Grant’s broadcast referred to a white or tan T-shirt. Cst. Turnell and Cst. Kennedy testified to having received a description of an accused wearing a dark shirt. Cst. Kennedy, who spoke to Cst. Grant just before the foot pursuit, could not recall whether Cst. Grant relayed to him that the suspect was wearing a white or tan T-shirt. In my opinion, Cst.

Kennedy’s lack of a clear memory of what was said to him moments before a highly kinetic event is understandable. [ 94 ] It may be that that their memory at the time of trial was wrong and they had properly recalled the broadcast description when they saw the individual of interest on Jasper Avenue. That may be, but that wasn’t their testimony. [ 95 ] Given their testimony, Cst. Kennedy and Cst. Turnell got the suspect’s description wrong. The suspect was described as wearing a white, light, or tan T-shirt, not a dark T-shirt.

Their testimony was that at the time they saw the individual on Jasper Avenue they were on the lookout for an individual in a dark T-shirt. [ 96 ] What is the significance of their error? [ 97 ] First, the error is comprehensible. They had heard the description some 40 minutes before seeing the individual on Jasper Avenue. They heard Black male, light short pants, and could easily have heard or thought they had heard or misremembered having heard that the suspect’s shirt was dark. I regard this as a reasonable error. [ 98 ] Second, shirt colour was just one identifying feature for the suspect.

And, given my finding about Cst. Kennedy’s observations of the individual, when the officers first saw the individual, his shirt could not have been a factor since it was over his head. They could not have determined, at least initially, whether it was light or dark.

They had other grounds for linking the individual to the broadcast they had heard. [ 99 ] Third, by the time the individual came out of the breezeway, the officers could see he was wearing a dark shirt. (There was opportunity for the officers to continue to observe the colour of his shirt later.) An individual who matched some features of the description of the suspect, who had engaged in some evasive action, had a different coloured shirt than had been reported. [ 100 ] Given what the officers observed and the individual’s conduct, even if I am wrong and the officers were unreasonably mistaken about the shirt colour, even if the officers should have known or even did recall the broadcast description of the shirt, I cannot find that shirt colour made any difference to the objective assessment of the officer’s beliefs.

I cannot conclude that at the point just before the individual took off at a run, it would have been reasonable for the officers to have concluded that they lacked reasonable grounds for suspecting that this individual was involved in the reported offences, that it would have been reasonable for them to conclude that the shirt was the wrong colour so all that was left was to get into their vehicle and drive off. [ 101 ] I add that the officers’ judgments were made in real time measured in seconds and minutes, not courtroom hours.

[ 102 ] I also add an observation based on R v Kossick , 2018 SKCA 55 , Caldwell JA at para 26: [26] In challenging this finding, the Crown asserts correctly that the police can make a valid, warrantless arrest based on erroneous information; but, that broad statement is not without qualification.

As the judge well understood, police reliance on erroneous information may be considered objectively reasonable “unless, in the circumstances at play in the arrest situation, the police could reasonably have made inquiries which would have led to the discovery of the deficiencies or defects” in that information: R v Shinkewski , 2012 SKCA 63 at para 19 , 399 Sask R 11 .... In this case, Cst. Kennedy attempted to get clarification from Cst. Grant about the suspect’s description but the rapidly evolving circumstances prevented him from getting the information he sought.

In this case, there was a lack of opportunity to discuss the suspect’s description. There was urgency. The “dynamics at play,” to use a phrase from Shinkewski at para 13 , must be taken into account. [ 103 ] In my opinion, taking into account all the circumstances, the officers reasonably suspected that the individual, Mr. Abdulkadir, was involved in the reported offences against the Complainant. (

d) Additional Observations (

i) No Detention, No Charter Violation [ 104 ] Even if the officers did not have grounds for a reasonable suspicion that Mr. Abdulkadir was involved in the offences against the Complainant, they were entitled to ask Mr. Abdulkadir some questions, although they were not entitled to receive answers. [ 105 ] And even if the officers did not have grounds for a reasonable suspicion that Mr. Abdulkadir was involved in the offences against the Complainant, their efforts did not limit Mr. Abdulkadir’s liberty. There was no violation of s. 9 of the Charter . They did not detain him. He did not stop. He ran.

See Julom at para 33 ; R v Ratt , 2020 SKCA 19 , Ryan-Froslie JA at paras 23, 36-38; Nesbeth at paras 14 and 16 . (ii) Profiling [ 106 ] If the evidence had disclosed racial profiling of Mr. Abdulkadir, the sequence of events initiated by the officers would have been founded on an abuse of powers that might have toppled all stacked upon it. See (e.g.) R v Chase , 2022 ONCJ 253 , Hilliard J; R v Sitladeen , 2021 ONCA 303 , Feldman JA at para 43ff; R v Dudhi , 2019 ONCA 665 , Paciocco JA at paras 54-66. However, neither counsel raised racial profiling, for good reason.

The suspect had been described as young and Black and the offence had occurred within the patrol area of the officers not long before. Mr. Abdulkadir was not stopped because he was Black, but because the perpetrator was a Black young man wearing light-coloured shorts who committed an offence not long before and not far away. B. Flight and Chase 1. The Events [ 107 ] When the individual began running, the officers pursued him. Cst. Turnell advised Communications that they were in a foot pursuit. [ 108 ] When asked in cross-examination what was his intention when he began the chase, Cst.

Turnell said “To arrest him.” When asked “for what?”, Cst. Turnell stated that he believed at the time that this male was responsible for the alleged sexual assault that had occurred earlier in the evening. He said that his grounds for arrest were “Description matching and the motivation to escape.” [ 109 ] Cst. Turnell agreed with the proposition that “Black male, long hair, dark T-shirt, camo shorts – that probably encompasses a lot of people.” But he added “That.

And at 3 a.m., not many people would match that description, in my opinion, and also proximity to the original offence.” [ 110 ] What, if anything, did the individual’s conduct add to the reasonable inferences available to Cst. Turnell and Cst. Kennedy? 2. Assessment (

a) Reasonable Grounds [ 111 ] Since the end-point of this set of interactions with the police was Mr. Abdulkadir’s arrest, whether the police had reasonable grounds to arrest Mr. Abdulkadir is a critical issue. [ 112 ] Under s. 495(1)(

a) of the Criminal Code ,

(1) A peace officer may arrest without warrant ... (

a) a person who has committed an indictable offence or who, on reasonable grounds, he believes has committed ... an indictable offence. Sexual assault causing bodily harm is an indictable offence. Sexual assault is an indictable offence for the purposes of s. 495(1), before a Crown election to proceed summarily:

Interpretation Act, s. 34. [ 113 ] For an arrest to be valid the officer must have both a subjective belief in reasonable grounds to arrest and those grounds must be objectively established. That is, “a reasonable person, standing in the shoes of the police officer, would have believed that reasonable and

probable grounds existed to make the arrest:” R v Storrey, (SCC), [1990] 1 SCR 241, Cory J at 250; Nesbeth at para19. [114] The reasonable grounds standard is not a standard of reasonable suspicion or possibility, but a standard of “reasonableprobability.” Neither though is it a standard of “prima facie case” or “proof beyond a reasonable doubt:” Storrey at 250; Hunter vSoutham Inc, (SCC), [1984] 2 S.C.R. 145, Dickson J, as he then was, at 167-8; R v Debot, (SCC),[1989] 2 SCR 1140, Wilson J at 1166; R v Ha, 2018 ABCA 233 at para 35. [115] The reasonable grounds standard must be distinguished from the balance of probabilities standard.

Both reasonable grounds andproof on a balance of probabilities share a requirement that the requisite inferences from the evidence be probable. Proof on the balanceof probabilities entails that an inference be more likely than competing inferences. The reasonable grounds standard, though, does notinvolve a comparison of the probabilities of competing inferences. In applying the reasonable grounds standard, the question is whetherthis inference, the inference drawn by the police, is reasonably likely, not whether that inference is more likely than some otherinference.

The reasonable grounds standard does not require that the inference relied on be the most likely or the more likely inferences J,as she then was, at para 90; R v Williams, 2018 ONSC 3654, Hill J at para 108. [116] Reasonable grounds must be based on “credible” or “reliable” evidence: the standard is one of credibly-based probability: Clowat para 10; R v Morelli, 2010 SCC 8, Fish J at para 40; R v Araujo, 2000 SCC 65, LeBel J at para 51.

But “only information that a policeofficer has good reason to believe is unreliable can be disregarded, and equivocal or exculpatory information cannot be ignored:” Ha atpara 36. [117] Reasonable grounds do not necessarily rule out innocent inferences, defences, or lawful excuses. “[T]he presence of otherpossible, plausible, innocent explanations for police-observed behaviour does not legally or automatically negate credibly-basedprobability, that is, reasonable and probable grounds:” Ha at paras 31, 33, 34; Clow at para 90. [118] Reasonable grounds must be assessed from the perspective of the reasonable person “standing in the shoes of a police officer:”Sanchez at para 32 (CarswellOnt); Williams at para 109.

Police training and experience may permit an appreciation of the significanceof facts that persons without that training and experience would miss: see Ha at paras 28 and 18. [119] Reasonable grounds must be assessed in the totality of the circumstances: Clow at para 19; Williams at para 108. [120] The totality of circumstances includes the pressure to decide quickly despite incomplete information.

In R v Balla, 2016 ABCA212 at para 34 the Court of Appeal quoted Justice McClung’s decision in R v Kephart and Oliver, 1988 ABCA 325 at para 10: 10 Police must make choices, wrenching choices, with little time to consult or reflect before they are taken. They are heavilycriticized when they are wrong. They are frequently criticized even when they are legally correct but hindsight and fresh facts suggestalternatives to [their conduct] ….

The law does not ignore the occasion and the demands under which the choice was forced. [121] The totality of circumstances does not require informed consideration of all information available at the time of arrest but of allincriminating and exonerating information which the circumstances reasonably permit: Shinkewski at para 16. [122] In Golub Doherty JA wrote as follows at para 18 (CarswellOnt): 18 .... Both a justice and an arresting officer must assess the reasonableness of the information available to them before acting.

Itdoes not follow, however, that information which would not meet the reasonableness standard on an application for a search warrant willalso fail to meet that standard in the context of an arrest. In determining whether the reasonableness standard is met, the nature of thepower exercised and the context within which it is exercised must be considered. The dynamics at play in an arrest situation are verydifferent than those which operate on an application for a search warrant. Often, the officer’s decision to arrest must be made quickly involatile and rapidly changing situations.

Judicial reflection is not a luxury the officer can afford. The officer must make his or herdecision based on available information which is often less than exact or complete. The law does not expect the same kind of inquiry of apolice officer deciding whether to make an arrest that it demands of a justice faced with an application for a search warrant. [emphasisadded] (

b) Flight [123] I find that the individual’s conduct would have been reasonably perceived to have been flight from the perspective of Cst.Turnell and Cst. Kennedy and did amount to flight. Further, the individual fled from Cst. Turnell and Cst. Kennedy and from no one else.Cst. Turnell and Cst. Kennedy approached in a marked police vehicle and were wearing police uniforms. There could have been nomistake about their status as police officers. Cst. Turnell and Cst. Kennedy did not get out of their police vehicle with weapons drawn.The individual was not running because of fear of harm.

The only drawing of a weapon by Cst. Turnell occurred part-way into the chasewhen he deployed his conducted energy weapon. I’ll return to that feature of events below. Cst. Kennedy drew his sidearm at the end ofthe chase, just before the arrest. I’ll return to this below as well. In all the circumstances, the only reasonable inference available in thecircumstances was that the individual was fleeing contact with the police. Cst. Turnell stated that the suspect exhibited a motivation toescape. I agree.

The officers’ inference that the individual was fleeing them to avoid contact with a police investigation was reasonable. (

c) Flight and Other Circumstances [124] From the perspective of Cst. Turnell and Cst. Kennedy, what occurred was that an individual who shared some features of thereported assailant, who was seen not far from where the offence occurred, not long after the offence occurred, early in the morning whenother individuals were not on the street, fled from contact with them as police officers. It may be that other offences had occurred indowntown Edmonton between the time of the offence and the time that the officers saw the individual on Jasper Avenue. They had not

been notified of those other offences, though. [ 125 ] The significance of the flight had to be judged by the officers quickly, in a few seconds at most. The individual ran away fast, toward an area where locating him again would have been difficult. [ 126 ] True, the individual could have been fleeing for reasons other than this particular offence or for reasons not related to any offence. The individual might have been involved in another offence, for example.

The officers were not obliged in the moment to consider alternative reasons for flight. [ 127 ] I observe that flight, on its own, without consideration of any other factors, may support a reasonable suspicion: Chehil at para 31 . [ 128 ] In my opinion, the flight, considered with the circumstances I’ve reviewed, supported a reasonable probability that the individual had been involved in the offences against the Complainant. He was seen to have some of the perpetrator’s features and he ran.

The officers were not able to review the individual’s facial features to permit a more detailed comparison to the description of the perpetrator – because he ran. C. Continuation of the Chase Down the Wooden Staircase 1. Events [ 129 ] The suspect jumped over the handrail of a wooden staircase, then ran down the staircase (a staircase connecting the MacDonald Drive and McDougall Hill Road areas) with the officers at his heels. Cst. Turnell testified that as he was going over the railing for the staircase, the “male appeared to stop.” Later he said that the male stopped.

He felt that he was in a position of disadvantage. He didn’t know the intentions of the male. Cst. Turnell was aware that a violent offence had occurred earlier. He perceived that the suspect could have been violent toward him. He was also tired from running. He felt that using his conducted energy weapon (or Taser) was his best option at the time. [ 130 ] He did not observe the male to be carrying any weapon. The suspect did not make any gestures suggesting he had a weapon. [ 131 ] In cross-examination, he confirmed that the suspect did not threaten him. [ 132 ] Cst. Turnell testified that he gave a warning.

He said “Stop or you will be Tasered.” [ 133 ] Cst. Kennedy testified that the suspect had turned to face his partner during the chase. Later he said that the suspect made an abrupt turn towards his partner. He could see the suspect’s body stop. He could see the suspect’s body turn. Cst. Kennedy heard Cst. Turnell tell the suspect to stop or he’d be Taser’d. Cst. Kennedy heard the discharge of the Taser. [ 134 ] Cst. Turnell confirmed that he had attempted to use the Taser but it was “ineffective.” He learned later that only one dart was located on the clothing of the male.

The second dart did not connect, so no electricity flowed. [ 135 ] The male continued running down the staircase. [ 136 ] Cst. Kennedy said that during the chase he saw the suspect “intermittently.” When asked how he knew it was the same person he first saw, he said this was the only male at 3:00 in the morning running down the hill away from us. Cst. Kennedy confirmed that there was next to no foot traffic around this area. [ 137 ] Cst. Turnell testified that there was a group of three or four males standing on the staircase. They did not match the description of the suspect. Cst.

Kennedy also reported seeing this small group that had to get out of their way as they were chasing the suspect. [ 138 ] The suspect kept running down the walkway to its exit at the bottom of Crown Plaza. [ 139 ] Cst. Turnell and Cst. Kennedy lost sight of the suspect. [ 140 ] Cst. Kennedy kept running. Southbound, the area became greenspace, a baseball diamond and soccer pitch. He did not see the suspect in any open areas. Had the suspect been running through the open areas, he would have been seen. Cst.

Kennedy testified that he did not believe that there was any way the suspect could have run across that field in time for the officers not to see him get across that field. [ 141 ] Cst. Turnell said that there was no one around at the bottom of the hill. 2. Assessment [ 142 ] I acknowledge s. 25(1) of the Criminal Code , justifying the use of force in carrying out authorized police duties: 25(1) Every one who is required or authorized by law to do anything in the administration or enforcement of the law ... (

b) as a peace officer or public officer ... is, if he acts on reasonable grounds, justified in doing what he is required or authorized to do and in using as much force as is necessary for that purpose. I also acknowledge s. 25(4), permitting the use of force likely to cause even death or grievous bodily harm to a person to be arrested:

25(4) A peace officer, and every person lawfully assisting the peace officer, is justified in using force that is intended or is likely to cause death or grievous bodily harm to a person to be arrested, if (

a) the peace officer is proceeding lawfully to arrest, with or without warrant, the person to be arrested; (

b) the offence for which the person is to be arrested is one for which that person may be arrested without warrant; (

c) the person to be arrested takes flight to avoid arrest; (

d) the peace officer or other person using the force believes on reasonable grounds that the force is necessary for the purpose of protecting the peace officer, the person lawfully assisting the peace officer or any other person from imminent or future death or grievous bodily harm; and (

e) the flight cannot be prevented by reasonable means in a less violent manner. [ 143 ] In my opinion, use of the Taser on a suspect on the wooden steps was force likely to cause grievous bodily harm. If an individual is Tasered on a level surface the individual will suffer the effects of the electrical current and likely the effects of impact with the ground. But if an individual is Tasered on steps the individual would suffer not only the effects of the electrical current but those effects could be predicted to cause the individual to fall down the steps or to strike a step or steps.

There is a significant probability of injury from a fall down a flight of wooden steps. Even if the individual were not to fall down many steps, contact with the sharp edge of a single step can cause serious injury. That injury could cause broken bones or worse, if the spine or skull of the individual were damaged. [ 144 ] The EPS policy for the use of conducted energy weapons was not in evidence.

I note paras 25 and 26 of R v Badger , 2022 ABPC 109 , Shoyele PCJ: [25] The EPS’s “Personal Care, Control, and Use of Conducted Energy Weapon Procedure – Procedure Number: OP15-2PR” [EPS Procedure] provides that the purpose of that document is to ensure that sworn members use Conducted Energy Weapon [CEW, aka “Taser”] professionally and lawfully in compliance with the guidelines published by Alberta Justice and Solicitor General. [26] The EPS Procedure in its s B(2)(a)(ii) deals with what it describes as the authorized use of the CEW. That

section specifically provides that the CEW should not be used on subjects who are actively fleeing from an officer. The

section specifically ties the escalation of the subject’s behaviour to situations when it is permissible for the officer to draw, display and turn on the CEW. I do not know whether the policy Judge Shoyele referred to was in force at the time of the events in consideration in this case. I shall draw no conclusions from the quoted material. Cst. Kennedy did testify that EPS policy is not to Tase people simply because they’re running away. [ 145 ] In my opinion, Cst.

Turnell did not have reasonable grounds for believing that his use of force was necessary to protect himself or anyone else from death or grievous bodily harm. Given both officers’ testimony, I find that the suspect did stop and turn toward Cst. Turnell. I also find that Cst. Turnell warned the suspect that he would be Tasered if he did not stop. However, I also find that the suspect faced Cst. Turnell only briefly. Cst. Turnell did not refer to any aggressive moments directed toward him or to any sort of standoff, however brief. I infer that the suspect turned toward Cst.

Turnell to assess the status of the pursuit. The suspect then continued to run away. [ 146 ] Cst. Elena Golysheva examined the clothing later seized from Mr. Abdulkadir. She located a Taser dart in the back of his T- shirt. The suspect was not hit in the front but in the back and his movement was such that the second dart did not affix even to his clothing. The suspect was fleeing not fighting. [ 147 ] Cst. Turnell claimed that he was concerned because the suspect was accused of a violent offence. He said that in his opinion, “every sexual assault is violent.” I accept that Cst. Turnell believed that.

However, while sexual assault is an offence involving violence since it involves the non-consensual application of force to a victim, the nature of that violence has a large scope. The offence does not denote a uniform degree of violence but is established on the commission of statutory minimum violence: R v Sandercock , 1985 ABCA 218 at paras 5 , 11. Cst. Turnell would have known this and I infer that he did know this.

He could not reasonably infer from the reasonable grounds for belief that the suspect had committed the offences against the Complainant that the suspect was likely to cause death or grievous bodily harm to a pursuing officer. Again, the suspect was fleeing not fighting. [ 148 ] No weapons were seen and there was no evidence that the suspect made any gestures suggesting that he had a weapon or was seeking to deploy a weapon. The broadcast the officers heard made no reference to a weapon. [ 149 ] In my opinion, the flight could have been prevented by reasonable means in a less violent manner.

There were two pursuing officers with radios. The location of the chase was not remote. It was close to EPS Downtown Division. If the pursuing officers could not catch the suspect they could keep him in sight until others could. [ 150 ] I find that the use of the Taser on steps as a suspect was running down the steps was an excessive use of force. It fell outside the protection of s. 25. I find that Cst. Turnell’s use of the Taser in the circumstances was a violation of Mr. Abdulkadir’s right to life, liberty, and security of the person protected by s. 7 of the Charter .

Justice LeBel wrote as follows at para 32 of R v Nasogaluak , 2010 SCC 6 : [32] .... police officers do not have an unlimited power to inflict harm on a person in the course of their duties. While, at times, the police may have to resort to force in order to complete an arrest or prevent an offender from escaping police custody, the allowable degree of force to be used remains constrained by the principles of proportionality, necessity and reasonableness. Courts must guard against the illegitimate use of power by the police against members of our society, given its grave consequences.

See Chase at para 70 . [ 151 ] But while the Taser should not have been deployed, its use in fact caused no injury to Mr. Abdulkadir. The suspect kept going after the Taser was fired with no evident reaction. Cst. Golysheva did detect what she believed to be blood on the barb of the Taser dart. There was no mention of any injury or any complaint of injury to Mr. Abdulkadir’s back in any evidence of subsequent interactions of Mr. Abdulkadir and the police. [ 152 ] No evidence was gathered through this Charter violation. [ 153 ] I will return below to the significance of this Charter violation for the s. 24(2) analysis. D. 9918-101 Street and the Arrest 1. Police Testimony (

a) Cst. Kennedy [ 154 ] Cst. Kennedy went back towards where he’d lost sight of the suspect to see if the suspect had gone to ground. [ 155 ] At 9918-101 Street, there’s a small parking lot open towards the direction that the suspect had come. Some cars were parked in this parking lot. [ 156 ] Cst. Kennedy saw a male hiding under a car in this parking lot. His head was towards Cst. Kennedy. Cst. Kennedy confirmed in cross-examination that he could identify the person as a Black male. Cst. Kennedy was about 20 feet away from the male under the car. Cst. Kennedy was not using a flashlight. [ 157 ] Cst.

Kennedy said he “assumed” that the person under the car was the same person who had been pursued. He could not tell if the individual had a goatee. Until the individual came out from under the car, he could not tell whether he was wearing shorts or pants. He could not tell how tall the individual was.

In re-examination, he changed his term describing his conclusion to “surmised.” He drew his conclusion “due to the locale, due to the time of day, due to the point of visual continuity of that person when we were chasing him ... to a wide open field where no human could essentially make it that distance across more than two football fields ... without [being] observed by multiple police officers searching the area.” He was, in Cst. Kennedy’s opinion, the person who had run from the officers. [ 158 ] Cst. Kennedy drew his service pistol, told the male to stay where he was, and radioed his location. Cst.

Kennedy explained that he drew his pistol because the suspect was suspected of having committed a violent crime, he was alone with the suspect, it was dark, he knew that his partner had deployed a Taser, and the suspect had demonstrated a high motivation to escape custody. He drew the pistol for his own safety. [ 159 ] Other officers attended and arrested the male under the car. Cst. Kennedy maintained his position, about 20 feet away from the car. [ 160 ] Cst. Kennedy confirmed that the individual he saw arrested was a Black male wearing a dark shirt with light shorts.

He could not tell if these were camo patterned. [ 161 ] Cst. Kennedy did not hear anyone direct that the individual under the car be arrested. He does not know who arrested the individual. [ 162 ] Cst. Kennedy confirmed that the suspect was the only male running down that hill at 3 in the morning. There was next to no foot-traffic in any material locations. [ 163 ] When asked if cross-examination for his grounds for arrest, Cst.

Kennedy said that his grounds for arrest were “a male matching the description of an offence that took place prior to us getting into a foot chase with him; descriptors matching; a male who had, in the presence of police, decided to run away from police when asked to be spoken with. Essentially, no visual continuity broken of the male until that point in time [when] the suspect was found hiding underneath a car, and essentially, that would be it.” (

b) Cst. Turnell [ 164 ] Cst. Turnell heard over the radio that Cst. Kennedy had located the suspect hiding under a vehicle. [ 165 ] Cst. Turnell came up to 9918-101 Street. He could see the individual under the vehicle. The individual crawled out. He was wearing the same clothing that Cst. Turnell had observed. The individual was handcuffed by some other officer. Cst. Turnell did not know who. Cst. Turnell had no involvement with the arrest of the individual. [ 166 ] Cst. Turnell did not learn the suspect’s identity until he later returned to the downtown police station.

He does not recall who told him the suspect’s name. [ 167 ] Cst. Turnell said that the only foot traffic in the area where Mr. Abdulkadir was arrested was police officers and the male who was arrested. (

c) Cst. Azais [ 168 ] Cst. Frederic Azais had been working at the Downtown Division. At 2:44 a.m., he heard over the radio that a foot pursuit was in

progress nearby. He said that when foot pursuits happen, everyone leaves the station to go help. He and his partner (Cst. Ryan McAllister) left the police station, got into a police vehicle, and drove to 101 Street and 99 Avenue, near to where the pursuing officers had lost sight of the suspect. [ 169 ] Cst. Azais did not recall having been given a description of what the suspect was wearing or what he looked like. Cst. Azais did not recall hearing over the radio that Cst. Grant was looking for a Black male wearing a white or tan T-shirt. [ 170 ] Cst. Azais observed that Cst. Kennedy had found the suspect.

The suspect was hiding under a car. Cst. Kennedy had his pistol out. Cst. Azais saw the suspect under the car. Cst. Azais did not recall the suspect’s position under the car (e.g. toward the middle). He did not recall whether a flashlight was being used by Cst. Kennedy. [ 171 ] Other officers gave the suspect the command to come out from under the car. [ 172 ] The suspect was not pulled out from under the car but wiggled out. [ 173 ] Cst. Azais did not recall Cst. Kennedy having told him to arrest the suspect. Cst. Azais did not remember Cst.

Kennedy telling him anything. [ 174 ] When asked in cross-examination what his grounds were for arresting Mr. Abdulkadir, Cst. Azais said that Cst. Kennedy and Cst. Turnell had been pursuing the suspect, they followed him to the area where he was (eventually) arrested, Cst. Kennedy found him under a car, and “I joined up.” Cst. Azais said that “I knew that was the person he was looking for.” When asked how he knew that, Cst. Azais said that he did “not recall how it was conveyed to me.” But he “trusted [Cst. Kennedy’s] judgment.” He had “good faith” in Cst. Kennedy.

He said that when a cop runs after a person and then finds him, “I’m going by the good faith that this cop knows that this is the same person he was running after.” [ 175 ] When asked in cross-examination whether Mr. Abdulkadir was arrested because he ran from the police, Cst. Azais said No, Cst. Kennedy “pointed him out.” Cst. Azais said that Cst. Kennedy “would have let him know,” but he did not recall what Cst. Kennedy said or how he conveyed this information. As to whether Cst. Kennedy literally pointed at the suspect or told Cst. Azais to arrest him, Cst. Azais had made no record in his report. Cst.

Azais said he did not remember how Cst. Kennedy conveyed that this was the person. But he trusted his judgment that this was the person he was looking for. [ 176 ] Cst. Azais confirmed in cross-examination that he personally did not have grounds to arrest Mr. Abdulkadir. He relied on Cst. Kennedy’s grounds, although Cst. Kennedy did not tell Cst. Azais what his grounds were. [ 177 ] Cst. Azais handcuffed the suspect. He searched the suspect. He put the suspect into the police vehicle. He asked the suspect for his name but he would not provide it.

He informed the suspect that he was being arrested for sexual assault, robbery, and obstruction. He read the suspect his rights. The suspect then provided his name. He was Mr. Abdulkadir. [ 178 ] Mr. Abdulkadir was transported by Cst. Ryan Lobay in the “police wagon” to the downtown police station. [ 179 ] Cst. Azais testified that Mr. Abdulkadir appeared to be intoxicated. He had dilated pupils and saliva came down the side of his mouth. In cross-examination, Cst. Azais acknowledged that the saliva on Mr. Abdulkadir’s lips could have come from running.

His “glossy eyes and dilated pupils” could have come from exertion. Cst. Azais did not smell alcohol on Mr. Abdulkadir. Had he done so, he would have noted it. Cst. Azais did not recall Mr. Abdulkadir making any erratic arm or body movements. [ 180 ] Cst. Azais did not have a conversation with any officer after Mr. Abdulkadir was arrested respecting the description of the suspect. [ 181 ] He did not note down whether the suspect had a goatee. [ 182 ] Cst. Azais confirmed that it was late at night and there wasn’t too much foot traffic. (

d) Cst. Lobay [ 183 ] Cst. Ryan Lobay had been in a “police wagon” on downtown patrol. At about 2:44 a.m. he heard a call over the radio for assistance. Constables Kennedy and Turnell were in a foot pursuit of a suspect in a sexual assault investigation. [ 184 ] Cst. Lobay went to a “set up point” at Bellamy Hill and 99 Avenue. He then went to assist. He was not “hands-on” with Mr. Abdulkadir. He observed the arrest but did not personally arrest him, handcuff him, or Charter and caution him. [ 185 ] After the suspect was arrested, he helped Cst. Azais put the suspect into the back of the “wagon.” Cst.

Azais Chartered the suspect. [ 186 ] Cst. Lobay said that he transported the suspect back to the downtown station. 2. Assessment [ 187 ] Three features of the arrest are significant. (

a) Identity of the Person under the Car [ 188 ] Cst. Kennedy and Cst. Turnell had lost sight of the suspect. Were there reasonable grounds for believing that the person under the car was the suspect pursued? If reasonable grounds were lacking, the arrest was unlawful and Mr. Abdulkadir’s s. 9 right not to be

arbitrarily detained would be violated. [ 189 ] Cst. Kennedy was at least 20 feet from the car. He did not use his flashlight. He could not see much of whoever it was under the car, not his shirt, his hair, or his shorts. [ 190 ] Nonetheless, the light was good enough for Cst. Kennedy to see a person under the car. His testimony was that he could see that the person was Black. [ 191 ] It was late. There were very few people in the vicinity of the chase. There were surely even fewer people under cars.

If the person arrested had been sitting in the driver’s seat of a car or even laying on its seats, or if the person had been in possession of equipment that might be used to detach a catalytic converter, the circumstances would have been appreciably different. [ 192 ] Given the time and location that the officers lost sight of the suspect, given the unlikelihood that any other individual would be under a car in a parking lot, I have no doubt that the suspect pursued was the person under the car.

No other reasonable inference would be available and certainly there were reasonable grounds for concluding that the person under the car was the person who had been pursued. (

b) Additional Inferential Value? [ 193 ] The suspect not only ran but hid himself. [ 194 ] Placing one’s body under a car at around 3:00 a.m. in a downtown Edmonton parking lot permits no reasonable inference other than that the position was adopted as a mode of concealment. The suspect was hiding. [ 195 ] From one perspective, hiding adds nothing to running. Both are modes of evading contact with police. [ 196 ] From another perspective, which I accept, hiding is a connected but distinct act of evasion.

Hiding, added to running, provides additional weight to the inference that the person who hid himself was highly motivated to evade contact with police. A reasonable inference is that the reason for this motive was that the person had committed an offence sufficiently serious to put himself in an uncomfortable position beneath a vehicle to avoid detection. Hiding further supports the reasonable inference that the suspect was connected with the offences against the Complainant. I recognize, though, that the additional inferential value of hiding is, while supportive, relatively minor. (

c) Arresting Officer’s Reasonable Grounds [ 197 ] Cst. Azais arrested Mr. Abdulkadir. Cst. Azais himself had no reasonable grounds to do so. He was not told to arrest Mr. Abdulkadir by either of the two pursuing officers, Cst. Turnell or Cst. Kennedy. [ 198 ] In my opinion, Cst. Kennedy and Cst. Turnell had reasonable grounds to arrest the suspect. [ 199 ] Two questions arise: was it necessary for Cst. Azais personally to have had reasonable grounds to arrest Mr. Abdulkadir? and was it necessary for Cst. Azais to have been expressly authorized to arrest Mr. Abdulkadir? [ 200 ] If Cst. Azais arrested Mr.

Abdulkadir without a belief in and without having reasonable grounds for arrest, again, Mr. Abdulkadir’s arrest would be arbitrary and a violation of his s. 9 rights. (

i) Reasonable Grounds held by a Team of Officers [ 201 ] The reasonable grounds possessed by Cst. Kennedy and Cst. Turnell were reasonable grounds possessed by the group of officers who participated in the arrest of Mr. Abdulkadir. In my opinion, there were reasonable grounds for the arrest of Mr. Abdulkadir. See R v Ahmad , 2020 SCC 11 at para 82 , where the Supreme Court confirmed that “police officers must be able to rely on the investigative work of other officers and it is not necessary for the particular officer making the call to personally have all the information that supports reasonable suspicion ….

Police work often relies on multiple officers conducting individual parts of an investigation.” And see Ha , Slatter JA concurring at para 80: “when a reviewing court is examining whether there were reasonable grounds for the arrest, it is the knowledge of the police team that is relevant, not just the knowledge of the individual officer who may have actually detained the suspect.” As the Court of Appeal said in R v Ali , 2020 ABCA 344 at para 13 , “Police work is a team undertaking.” See R v Beckles , 2022 ABQB 39 , Labrenz J at paras 209-210.

In Williams , Justice Hill J wrote as follows at para 107: [107] In some instances, the police officer who forms reasonable and probable grounds for an arrest does not him or herself execute the actual arrest but authorizes another peace officer to do so with the second/arresting officer not independently forming their own grounds to arrest. In this “straight line authorization” model, the focus is the legal sufficiency of the first officer’s grounds: Regina v. Richards , 2015 ONCA 348 , at paras. 4-12 , 27, 33, 42 (leave to appeal refused [2015] S.C.C.A.

No. 299); Stevenson , at paras. 31-40, 51; United States v. Edwards , USCA 8th Cir., May 31, 2018 (No. 17-1455), at para. 9. (ii) Communication of Authorization to Arrest [ 202 ] Justice Hill, in the passage just quoted, referred to an officer with reasonable grounds authorizing another officer to arrest a suspect. On the evidence, Cst. Azais received no such express authorization. [ 203 ] However, in my opinion, the circumstances communicated what was needed to be communicated.

The officers who attended the scene knew that the offences against the Complainant had occurred, a suspect had been identified, and the suspect had been pursued by officers. They knew where the pursuit was occurring. That is why they showed up where they did. They arrived shortly after receiving

information that a pursuit was in progress. They knew that one of the pursuing officers had his gun out, pointed at an individual under a car. Given the time, the individual under the car, and a pursuing officer’s use of his firearm to ensure the detention of the individual under the car, it was reasonable to infer that the individual under the car was the individual who was pursued and that this was the individual who should be put under arrest.

There were no grounds for concluding that the person under the car was anyone other than the person that had been pursued (e.g. some third party believed to have committed some other offence). [ 204 ] In my opinion, an express authorization, the utterance of some words of authorization, was not necessary in the circumstances. Cst. Azais expressly arrested Mr. Abdulkadir. No issue was raised respecting the words he used in making that arrest and in what he told Mr. Abdulkadir upon arrest.

At the time, as indicated, the team of officers on-site had the requisite reasonable grounds for arresting the suspect, including Cst. Azais. E. Post-Arrest Interactions between Mr. Abdulkadir and the Arresting Officers 1. Cst. Lobay [ 205 ] At the downtown station, Cst. Lobay did computer checks on the suspect and confirmed his name. Mr. Abdulkadir had provided his name. Cst. Lobay confirmed his identity through a photo in a police database. He learned that Mr. Abdulkadir was breaching conditions and had outstanding warrants. He advised Cst. Azais of this. Cst. Azais testified that he advised Mr.

Abdulkadir of the new charges. [ 206 ] Cst. Lobay talked by telephone to Cst. Grant’s partner, Cst. Bouwmeester, who advised Cst. Lobay that Cst. Grant wanted Mr. Abdulkadir’s clothing seized because Mr. Abdulkadir was a suspect in a sexual assault investigation. Cst. Lobay told this to Cst. Azais. [ 207 ] Cst. Lobay observed Cst. Azais perform a search incident to arrest of Mr. Abdulkadir before Mr. Abdulkadir was put in a cell. He did not recall whether there had been a pat-down search of Mr. Abdulkadir before he was put in the police vehicle, although this is common practice. [ 208 ] Cst.

Lobay could not say whether Mr. Abdulkadir had a goatee. He did not recall the length or style of Mr. Abdulkadir’s facial hair or whether he had any facial hair at all. 2. Clothing Seizure [ 209 ] Cst. Azais testified that he seized Mr. Abdulkadir’s clothes because the clothes would be evidence in a sexual assault investigation. He knew that because he knew that Cst. Kennedy had been chasing a person suspected of committing a sexual assault and that was the person arrested. Cst. Azais testified that Cst. Lobay told him to seize the clothes and the clothes were material to a sexual assault. [ 210 ] Cst.

Azais testified in cross-examination that he “would have” received authorization for the “strip seizure” from the Watch Commander, Acting Staff Sgt. Willms. He did not write down whether he received this authority in his notes. The grounds for the seizure were that Mr. Abdulkadir was reasonably believed to have been involved in a sexual assault offence. His clothing potentially had DNA

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