Racial profiling or bylaw infraction? Police carding case debated in Alberta court

An Alberta judge is being asked to rule on the controversial practice of police carding in a case involving an Edmonton police officer and an Indigenous man who claims he was a victim of racial profiling.

A defence lawyer representing William Kenowesequape presented arguments Tuesday in Edmonton Court of Queen's Bench in an appeal of Kenowesequape's two convictions for drug possession.

Justice Ritu Khullar reserved her decision.

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The legal debate around carding comes just months after the launch of street check reviews by both Alberta Justice and the Edmonton police commission.

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

Proponents argue street checks are lawful and essential to preventing and solving crime.

Critics are calling for a ban on carding — arbitrary stops without cause — by 2018.

Around 9:30 p.m. on Nov. 20, 2015, Kenowesequape was cycling along 118th Avenue at 86th Street.

Edmonton Police Service Const. Kyle Pagnucco pulled him over, searched Kenowesaquape's name 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, and charged Kenowesaquape with simple possession.

At the provincial court trial, Kenowesequape's defence lawyer argued for a stay of the proceedings and the exclusion of evidence because "it was found as a result of blatant carding of an Aboriginal male in the downtown of Edmonton."

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Provincial court judge Ray Bodnarek acknowledged breaches had occurred, but ruled they "did not warrant a stay of proceedings."

Bodnarek found Kenowesaquape guilty on December 2016. Kenowesaquape, who had already spent 27 days in pre-trial custody, was given a suspended sentence with 12 months probation, and ordered to seek treatment for drug abuse.

On Tuesday, Kenowesaquape appealed that conviction.

Man wasn't told officer thought bike was stolen

In court documents filed for the appeal, Crown prosecutor Brianne Larochelle said Pagnucco knew Kenowesequape to be "a man of limited means" and "suspected that the brand-new expensive-looking bicycle was stolen."

Court heard that Pagnucco had questioned Kenowesequape without informing him of the suspected bicycle theft. The lower court had recognized that as a breach of his charter rights.

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​Defence lawyer Deborah Hatch argued Tuesday that her client was the victim of racial profiling and prejudicial treatment, describing the Nov. 20, 2015 stop by police as unlawful.

"What we have is a carding program, or something which has the same effect," Hatch said. "It leads to cascading and fundamental breaches of the rights of the poor and of visible minorities."

Larochelle, for the Crown, said the detention, arrest and seizure were conducted lawfully.

Not a case of carding, says Crown

"This was not a case of carding," Larochelle said. "It was not motivated by race or his knowledge of Mr. Kenowesaquape."

She argued the stop was "ultimately a safety issue" based on a bylaw infraction.

Pagnucco initiated the stop because Kenowesequape didn't have bike lights, she explained.

According to a statement of facts, Pagnucco recognized Kenowesaquape after he stopped him, saying, "Hey, Will … what are you up to?"

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Hatch said the constable seized the bike, even after a search of the serial number failed to find reports it was stolen.

Hatch characterized "the supposed bike illumination issue" as "a ruse." Her client was never ticketed for not having a headlight.

Pagnucco previously agreed in court that the bike was seized based on a "hunch" that it may be stolen, she said. It took her client a year to get the bike back.

'Aggravating and troubling'

"To deprive a disadvantaged individual … of their sole means of transportation for an entire year is highly aggravating and troubling," said Hatch, who called for a stay of proceedings. "I suggest if he had been white and had his vehicle seized there's no way this would have happened."

Hatch noted Pagnucco had admitting to stopping Kenowesequape "dozens" of times, including once "for smoking within five metres of a doorway at a 7-Eleven."

If he had been white and had his vehicle seized there's no way this would have happened- Deborah Hatch, criminal defence lawyer

"Caucasian individuals are not stopped because their bikes are not properly illuminated, nor are they detained because they have a cigarette within five metres of a doorway," she charged.

But Larochelle insisted Pagnucco did not initially recognize Kenowesequape or see the colour of his skin. She said the evidence was not connected to the breaches of his rights. And it is at the officer's discretion whether to lay a charge, Larochelle said.

She said the pat-down search was conducted because Kenowesequape had a history of carrying weapons. Larochelle reminded the court that the trial judge in provincial court had found the constable to be "credible and reliable."

'Glaring ignorance of the law'

Hatch said Pagnucco failed to prepare a Report to Justice as required during a seizure, under the Criminal Code. The officer admitted that was common practice and didn't know it was legally required, she said.

Hatch highlighted testimony in which Pagnucco said he had been conducting "proactive patrols" that included stopping people to see if they were involved in criminal activity.

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Hatch said the constable testified that many young Aboriginal men rode bikes in the neighbourhood and he seized bikes routinely from people because they looked "too expensive for them."

"That is essentially theft," Hatch told the court, adding his conduct reflected "a glaring ignorance of the law on the part of the police."

andrea.huncar@cbc.ca   @andreahuncar