'Nobody is above the law:' Court rules Edmonton cop broke law, breached rights but didn't card Indigenous man

An Alberta Court of Queen’s Bench justice has ruled an Edmonton police officer broke the law and breached an Indigenous man’s rights during a 2015 stop, but he wasn’t carded or racially profiled.

Justice Rita Khullar quashes conviction that led to 26 days in jail and bike seized for a year

A Court of Queen's Bench justice has ruled an Edmonton police officer breached an Indigenous man’s rights but he wasn’t carded. (CBC)

An Edmonton police officer broke the law and breached an Indigenous man's rights during a 2015 arrest, an Alberta Court of Queen's Bench justice has ruled.

But the Indigenous man wasn't carded or racially profiled, the justice concluded.

In the ruling, Justice Ritu Khullar quashed the minor drug conviction of William Kenowesequape that led to 26 days in jail and the confiscation of his bicycle for more than a year.

"This case shows that the courts take very seriously cases where the police, who are expected and trained to follow the law, do not follow the law," the man's lawyer Deborah Hatch wrote in an email to CBC Thursday.

"When the police breach (constitutional rights), the courts take it seriously. Nobody is above the law, and the police too must respect the law."

The stop in question happened within two minutes around 9:30 p.m. on Nov. 20, 2015, as described in Khullar's decision released last week.

Nobody is above the law, and the police too must respect the law.- Deborah Hatch, defence lawyer

Kenowesequape was cycling along 118th Avenue at 86th Street when he was pulled over because his bicycle didn't have a light.

He was not informed of the reason for the stop or ticketed for the bicycle light infraction.

Const. Kyle Pagnucco recognized Kenowesequape, searched his name in the police data base and arrested him on an outstanding warrant for trespassing.

In a pat-down search, the officer seized 0.1 grams of cocaine and three pills of the opioid hydromorphone.

Then, without being informed he was under investigation for a stolen bike or his right to a lawyer, the constable asked Kenowesequape if the bike was stolen, the court ruling says.
Defence lawyer Deborah Hatch said the decision shows courts take it seriously when police breach Charter rights.

"The Constable testified that the bicycle appeared more valuable than the typical bicycle you might see in that neighbourhood, which led him to suspect it was stolen," wrote Khullar in the ruling. "While it did not show up as being stolen in any search that evening, the Constable proceeded to confiscate the bicycle."

She said Pagnucco failed to file the appropriate paperwork when he seized the bike, describing it as a breach of the Criminal Code.

Stop lawful, not racially motivated

Khullar agreed with the lower court's ruling that Pagnucco breached Kenowesequape's Charter rights because he was not told he was under investigation for a stolen bike or advised of his right to counsel.

But she said provincial court Judge Ray Bodnarek erred because the Charter breaches should have resulted in the exclusion of all evidence gathered during the stop.

Khullar described the impact of those breaches as significant noting Kenowesaquape spent nearly four weeks in jail and more than a year  "deprived of his primary means of transportation."

But she said stopping Kenowesaquape for failing to have a light was not arbitrary or motivated by racial profiling or carding.

She agreed with Bodnarek, who said the stop was lawful because it was done under the Traffic Safety Act and Vehicle Equipment Regulation.

"The Appellant (Kenowesaquape) argues that he was arbitrarily detained because he was never told that the reason for the stop was that he had no light on his bicycle and, ultimately, he never received a ticket for that offence," wrote Khullar.

"It was not unreasonable for the police to stop the Appellant for not having a light on his bicycle, and then find out that he was wanted on an outstanding warrant and arrest him for that outstanding warrant."

Police reviewing decision

On Thursday, Hatch said the appeal court justice "recognized that it is very serious to breach a person's constitutional rights" during an arrest. 

"We all have an interest in the police telling people what they are investigating, and telling people that they have a right to contact counsel when they are detained," she wrote. 

Edmonton police spokesperson Carolin Maran said a formal complaint had not been filed with the professional standards branch in relation to the appeal decision.

"However, the appeal decision is now with the branch for review," wrote Maran. "Until this review is complete, we are unable to offer further comment."

The case is a timely one as Alberta Justice, the Edmonton police and the police commission all grapple with introducing new rules for carding, also described by Edmonton police as "street checks."

Recent figures showed Edmonton police disproportionately street check Indigenous and black people.

Stops by transit officers are also coming under increased scrutiny, In the most recent case to make headlines, the city and police are now investigating a complaint of racial profiling and excessive force by a 15-year-old boy who was pushed into a rail and held down by two peace officers before being issued a $250 loitering ticket.

One officer has resigned and the province has assigned an investigator under the peace officer program to monitor the city's investigation of the other officer for thoroughness and fairness.

Edmonton police have made changes to street check policy but maintain the stops are part of community policing and a valuable investigative tool that helps solve crimes.

Critics argue random stopping, questioning and documenting of citizens in non-criminal encounters isn't what community policing is about and amounts to racial profiling.