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May the fourth be with you: Stormtroopers Day in Lethbridge, Alberta
Posted in ASSAULT, FIREARMS OFFENCES, KIDNAPPING / UNLAWFUL CONFINEMENT, Tagged Criminal Defence BlogMay 7, 2020
May the fourth be with you
Anybody who has watched Star Wars has heard the phrase, “may the force be with you”.
George Lucas released his iconic science fiction masterpiece, Star Wars: A New Hope, in 1977. On May 4th, 1979 Margaret Thatcher became the Prime Minister of the United Kingdom. Her Conservative Party placed a congratulatory advertisement in a local newspaper:
“May the Fourth be with you, Maggie. Congratulations”.
In 2008 Star Wars fans declared May 4th to be Luke Skywalker day and used the same catchphrase. In 2013 the Walt Disney Corporation officially recognized May 4th as Star Wars day.
Perhaps in Canada we should now recognize May 4th as Stormtrooper’s Day; not to be named after the dreadful German SS from World War II or the iconic white armored Empire soldiers from the George Lucas’ series, Star Wars, but to recognize the valiant efforrts of the Lethbridge Police Service (LPS) who engaged a single costume clad female with real guns and real violence on May 4th, 2020. Much of the incident was captured on video (scroll down for the YouTube link).
At the outset, let me call this incident as I see it (and this is only my opinion): the behaviour of the LPS was absurd in the extreme. Drawing firearms and bearing down on a single costumed person in front of a restaurant where she was logically doing a promotion eviscerates common sense. In the opinion of this Alberta criminal lawyer, what transpired between law enforcement and the costumed woman highlights that some police in Alberta are little more than cowardly bullies who lack intelligence. From watching the video and reading the news release it appears these LPS members prefer a bully first approach to their duties.
Even if I accept that these police officers initially had to have their firearms drawn (for they were responding to a firearms complaint) there was – in my opinion – no reason to continue the aggressive bullying of the lone costumed female after she tossed her toy blaster to the ground. Once her hands were in the air the police a plethora of less aggressive options available to them. There was no reason to force her face first to the ground causing a bloody nose, and no rational basis to ignore her explanation as she stood with her hands-up. There was no reason to ignore the words of the restaurant owner who was trying to de-escalate the situation. In my opinion, there was almost no reason employed by these officers at all.
THE coco vanilla galactic cantina incident
On May 4th, 2020 (Star Wars Day) an employee of the Coco Vanilla Galactic Cantina in Lethbridge, Alberta dressed up in a Star Wars costume (as a Stormtrooper) to promote the restaurant. Doubtless, the owner of the establishment, Bradley Whalen, was trying to drum up business – an act that many business owners are most certainly acutely interested-in, considering industries across Alberta are facing closure and bankruptcy as the COVID-19 response has all but stopped the flow of money to cash registers. Suffice it to say, Mr. Whalen’s innocent business promotion did not go as planned.
While some members of the public stopped to interact with the costume clad woman (even to take pictures and video), it appears others mistook the costume for something more dangerous and called 911. According to Inspector Jason Walpur, the LPS received a pair of 911 calls relating to a firearms incident near the Galactic Cantina and responded accordingly. As an aside, this Lethbridge criminal lawyer would be keen to hear the recording of those calls.
Assuming the veracity of these complaints, the police were required to respond. However, as with all interactions, it is not unreasonable to expect that law enforcement will act reasonably, based on the information collected by their five-senses and processed by their brain and of course will tailor their response to the situation that presents itself. As courts across Canada have held, the police must use their common sense.
POLICE MUST USE COMMON SENSE
As these officers rolled-up to the location, it is hard to imagine that they saw anything other than a person wearing a costume in front of a business. Processing their surroundings, they must have recognized that the costume wearer was standing out front of a business dedicated to capturing the interest of science fiction fans.
To my mind, only the lowest functioning brain would perceive what was transpiring on the sidewalk as at all threatening, but to fair to the police, since the toy gun may have appeared real, I can’t really blame the officers for initially acting on the basis of “better safe than sorry”. Better safe-than-sorry, however, is not the dominant principle of our law.
By Canada’s law, police are not authorized to act with any degree violence or force; rather, they are required to respond intelligently, with reason and in a manner that is appropriate and proportionate to the situation at hand. As was eloquently stated in Gabrielson v. Hindle,  A.J. No. 1758 (Alta. Q.B.):
The police forces are given a very special niche in our society. They represent us in the protection of our property and our well-being from abuses and ravages of those who commit crime. They are given special powers and a corresponding standard of conduct is demanded of them. Police powers are to be used intelligently, fairly, and without rancour or favour. There are some rough people wandering around our country and the police must be alert to ensure that the appropriate measure of law enforcement is available to impose the will and requirement of the State upon such persons. It is for this reason that police are permitted to carry arms. They are selected for physical prowess. They are well trained in the use of weapons and martial arts and are provided with the best equipment, including highly and efficient communication systems. But notwithstanding all of these, good police work stems to a very large extent through the use of common sense and from gaining of, and retention of the respect of the public.
So with all privileges go responsibility.
As Judge Vaillancourt asserted in R. v. Cousins,  O.J. 4252 (Ont. C.J.): “It is all well and good to consider various uses of force options. However, the use of common sense should be the primary response method when police are exercising their day-to-day duties”.
The narrative flowing through most of the jurisprudence dealing with use of force by police is common sense.
In my opinion, it was clear to the all of police first approaching the costume wearer out front of the Galactic Lounge that he or she was not likely one of those “rough people” wandering around our country referenced in Gabrielson v. Hindle; and if it wasn’t clear to them, it should have been. The video speaks for itself:
Again, to give these officers the benefit of the doubt, I concede that the toy carried by the costumed Stormtrooper may have looked like a firearm. With that in mind, I do not blame the officers for initially taking a cautious approach to the interaction. Common sense dictates that this was entirely appropriate. It is what transpired after the toy was tossed to the ground that concerns me. The interaction resulted in the girl being arrested, having her nose bloodied and taken into custody.
POLICE POWER IS NOT LIMITLESS
As reported by Lethbridge Now, the girl wearing the costume was “arrested” by the police. “Arrest” means that these officers thought they had “reasonable and probable grounds” to believe that the Stormtrooper committed a crime. This is the point where these, myopically engaged in their duties and acting as bullies lost their common sense.
Reasonable and probable grounds requires that the arresting officer “subjectively” believes that the arrestee has committed a criminal offence and that this subjective belief be reasonably verifiable based on the information known to the police at the time.
At the outset, it is important to recognize that this investigation started with one or more Informants (the 911 calls).
R. v. Debot,  2 SCR 1140 provides some guidance with respect to police powers to arrest and search based on informant information outside the police, such as a 911 call.
At least three concerns must be addressed in weighing whether or not the evidence relied on by the police justified a warrantless search. First, was the information predicting the commission of a criminal offence compelling? Second, where a "tip" originating from a source outside the police, was that source credible? Finally, was the information corroborated by police investigation prior to making the decision to conduct the search? Each factor does not form a separate test. Rather, it is the "totality of the circumstances" that must meet the standard of reasonableness. Weaknesses in one area may, to some extent, be compensated by strengths in the other two.
Applying Debot supra, I accept the police received a compelling complaint – that is, one they needed to investigate. However, as the police approached the scene, I am of the view that they should have clearly been able to determine that the emergency call was likely a false alarm. Putting yourself in the shoes of the police, what would your brain have communicated to you about a costumed person standing on a sidewalk out front of a premises called the Galactic Lounge? Of course, if you had familiarity with the movie Star Wars (a movie a great many people have watched), I am pretty certain the Stormtrooper costume would have had added relevance.
Minimally, as the officers approached the location, sighting the person clearly wearing a costume, their common sense must have tingled; and if it didn’t, it should have.
Now, it is worth recognizing that for a person to be “arrestable” for possession of a firearm or possession of a weapon dangerous to the public, they must be in possession of a weapon or engaged in activity that is dangerous to the public. Therefore, to arrest the woman wearing the costume any reasonable officer would have thought to immediately confirm whether the purported “firearm” was in fact a firearm. To do so required an investigation that even a child could have accomplished in a manner of seconds: simply pick up the object and use common sense. It is also no irrelevant that the woman under the mask was likely pleading her innocence while staring down the barrel of various guns. It is not irrelevant that Bradley Whalen exited the Galactic Cantina to explain that she worked for him and it was just a toy.
Rather than relying on their common sense and de-escalating the situation, these bullies commanded the girl to the ground at gunpoint; going so far as to ignore her explanation that this was no easy task given the restrictions of her costume. As she dropped to her knees the police arrested her, pushed her face into the pavement and bloodied her nose.
This is a photo from the Lethbridge NOW article.
Police power is not without its limits. Their power must exercised responsibly and according to law.
GROUNDS FOR ARREST
There are two wicked questionable little questions that need to be answered.
Firstly, in all of the circumstances, did the police have reasonable grounds to believe that the girl had committed a crime? Secondly, was the police use of force excessive?
In R v. Storrey,  S.C.J. No. 12 the Supreme Court of Canada established the seminal principles with respect to warrantless arrest.
In order to safeguard the liberty of citizens, the Criminal Code requires the police, when attempting to obtain a warrant for an arrest, to demonstrate to a judicial officer that they have reasonable and probable grounds to believe that the person to be arrested has committed the offence. In the case of an arrest made without a warrant, it is even more important for the police to demonstrate that they have those same reasonable and probable grounds upon which they base the arrest.
Common sense tells us that these officers did not possess lawful grounds to arrest. To begin with, it is very likely that the 911 callers were from sources outside of the police. As such, the police were required to corroborate the information provided in those 911 calls.
Secondly, as the police rolled-up to the scene, what they observed did not corroborate the commission of a crime; rather, common sense informed that the person wearing the costume was likely doing some kind of promotion for the business she was standing in front of.
Thirdly, even if the police were initially entitled to draw weapons, a simple investigation of the prop lying on the ground would confirm that the costume clad female was not carrying an actual gun. Fourthly, the woman told them that it wasn’t a gun. Fifthly, Bradley Whalen told them that it wasn’t gun. Therefore, based on the totality of the circumstances, it is hard to imagine a scenario outside of complete stupidity where these officers had grounds to arrest this poor girl.
Inspector Walpur, however, take a more policy-based approach to defending the LPS. As reported (emphasis added):
“Any time our officers are responding to something that’s very spontaneous where there’s a weapon involved, our first responsibility is to ensure we can create a safe environment for the officers, for the public, and the individual itself,” says Walper, “So certainly, their first response is to deal with that weapon and remove the weapon from the person, take the person into custody, and then allow us to follow up with that investigation to determine exactly what occurred.”
So let me get this straight: “anytime” the police merely “respond” to an incident where a weapon is reported, the model for creating a “safe environment” is to arrest first, take into custody second and investigate third”?
It is important to understand that “arrest” confers power to the police. “Custody” confers power to the police. In Canada, we expect that our police will gather the necessary information to arrest and take persons into custody, not the other way around. Inspector Walpur has in effect put the proverbial cart-before-the-horse.
This should concern everybody; for by Inspector Walpur’s own words, the Lethbridge Police Service appears to employ a policy-based approach to dealing with the public that is not consistent with the law of Canada. If the police service as a whole has adopted policy that is arguably against the law and if its senior members, such as Walpur have no understanding of the law, then how can we expect Street Constables, such as the officers who scared the crap out of the girl out front of the Galactic Lounge, to act any differently?
Setting aside the fact that pointing a gun at somebody in no way creates a safe environment for the target, the woman who was arrested in this case was certainly not made “safer” when the police used real physical violence by forcing her to the ground and bloodying her nose.
USE OF FORCE
Even if the police somehow had grounds to arrest this girl, the next question is whether they were entitled to use the force that they did. Certainly, whenever a person is arrested and taken into custody, there is an expectation that this be done in the most peaceful and non-violent way as possible.
Section 25 of the Criminal Code of Canada stipulates that the police, on arrest or search, are only entitled to use as much force as is reasonably necessary in the circumstances. As Fruman J. recognized in Crampton v. Walton,  A.J. No. 178 (Alta. C.A.): the fact that police are entitled to arrest or search does not give them carte blanche to use any manner of aggression or any degree of force they determine to be fit.
In the view of this defence lawyer, forcing this girl to the ground and bloodying her nose by pushing it into the pavement was completely unnecessary.
In my view, what transpired was nothing more disgusting act by a team of mindless bullies who have a questionable appreciation of their powers and their obligations to the public they serve.
WAS A CRIME COMMITTED?
The girl was released without charge. Of course she was; for she committed no crime.
There is a question, however, as to whether these police officers commit a crime?
In our criminal law “assault” is any direct or indirect intentional and non-consensual physical touching of another person. An assault that results in injury could conceivably be “assault causing bodily harm”. Pointing a firearm could be “assault with a weapon”.
Unlawful confinement occurs when a person is unlawfully confined against their will.
In the costumed Stormtrooper case, the police used violence, handcuffs and apparently temporarily imprisoned this girl inside of a police vehicle.
Arguably, these officers could all be charged with assault, assault causing bodily har and/or unlawful confinement for their treatment of this woman.
As Canadians, we must expect more of our police. With power comes responsibility.
We should remember that police are employed by the public, paid for by public dollars (the taxpayer). They get to carry weapons and are cloaked with power. As such, police have a responsibility to those who they actually serve to exercise power intelligently and where possible, gently.
The manner in which the police deal with the public says a lot about the society in which we live. Every incident like one at the Galactic Cantina potentially diminishes the public’s respect for law enforcement; for when police abuse their power they do not deserve respect. As the public becomes less respectful of law enforcement, there is a greater danger that the public respect for the police will diminish. This is dangerous; for a loss of respect could result in undesirable encounters between the police and public. For our society to function properly, we need to have a healthy and reasonable respect for police and they need to have a healthy and reasonable respect for us.
As a criminal defence lawyer in Alberta who has been practicing for nearly two-decades, I can tell you from experience that just about every incident that I have encountered involving violence or excessive use of force by police almost always comes pre-packaged with the explanation that the force was necessary because the target failed to comply with police commands. Sometimes the police are correct; the person failed to comply. Sometimes they are not. In the view of this Alberta criminal lawyer, sometimes it’s clear that the police explanation is nothing more than an outright fabrication designed to justify stupid, bullying and abhorrent behaviour. In my opinion, the Galactica Cantina incident in Lethbridge, Alberta is one such incident.
The appropriate response is not to to cite policy as was done by Inspector Walpur or to justify the police conduct to the point of the idiotic; it is to simply apologize. In the view of this Alberta lawyer, the girl who was arrested is, at a minimum, owed a sincere apology. Perhaps the officers involved in this incident need to be sent for some training? Perhaps they need to be disciplined? Perhaps the Lethbridge Police Department needs to re-write its policy to arrest first and investigate later?
David G. Chow
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