To admit the evidence would be to sanction police misconduct and suggest that an “end justifies the means” approach by law enforcement is acceptable, concluded Superior Court Justice Ian Nordheimer in his ruling in R v. Jinje.
“A twenty-year-old man is walking through the park with his friends and winds up, not only being falsely arrested but beaten in the process,” said Nordheimer.
The judge found that the testimony of at least one of the officers was untruthful, there was evidence of collusion by police in making notes, and no legitimate reason to detain Samatar Jinje and two friends.
Nordheimer is known for imposing significant sentences on defendants convicted of weapons offences and his rulings in this area often reference the concerns about handgun violence in Toronto.
“Every effort must be made to remove such weapons from our streets. However, these efforts must be lawful ones, undertaken with full respect for the constitutional rights of every citizen,” wrote Nordheimer. “There will be little to commend our free and democratic society if we permit police officers, on a whim or hunch, to detain, arrest and search any citizen in the speculative hope that a firearm will be found,” he added, in the March 31 decision.
James Miglin, who represented Jinje, said Nordheimer’s ruling should be applauded.
“There have to be some consequences. You can’t get to a place where the constitution doesn’t apply for certain offences,” says Miglin, a lawyer at Edward Royle & Associates in Toronto.
The ruling by Nordheimer comes as a controversial “carding” policy is still being debated by the Toronto Police Services Board.
The board deferred a decision after a meeting on April 2 on whether Toronto police can continue its practice of approaching individuals and asking for identification. The information is then entered into a police database.
Critics say young black or brown skinned people are stopped disproportionately by Toronto police and without a legitimate investigatory reason.
The court heard that police records indicated 27 “encounters” with Jinje, who has no criminal record.
The incident between police and Jinje in January 2013, began when he was walking with two friends through a park near the Yorkdale shopping mall in northwest Toronto. They were stopped by police who said they were investigating the theft of an iPhone at the mall and that Jinje and his friends matched the description of the suspects.
“I note that the description that the police had of the robbers was simply that they were three black males,” said Nordheimer. “Mr. Jinje and his two friends are black and they are males and together they number three. To that extent, the officers were accurate in what they said,” the judge added.
Jinje turned over his iPhone and unlocked it to show ownership. More officers were called to the scene. Once Jinje asked why he was being harassed an officer tried to turn the young man around. When he resisted arrest, he was handcuffed and beaten and the handgun fell out of his pocket and to the ground.
One of the officers testified that he struck Jinje with the butt end of a baton, four or five times in the head, to obtain “pain compliance” or render the suspect unconscious. Three of the officers testified that they prepared their notes together, in a lunchroom back at the police station.
The testimony of Constable Kimberly Sabadics, who said she sensed Jinje had a gun, because one of the pockets of the “puffy” vest he was wearing was heavier than the other, was not accepted by Nordheimer.
A demonstration in a well-lit courtroom did not show any difference, while the officer’s observations were outside “in a park, in darkness, with little to no artificial lighting,” he noted.
The Superior Court judge also expressed concern that the police actions were only revealed because a gun was found.
“This reality illustrates the invidious nature of improper police conduct,” said Nordheimer.
Even with police misconduct it is increasingly difficult in Canadian courts to have a gun excluded under s. 24(2) of the Charter, says Miglin.
“It is not enough to show a breach. I need blood on the walls, before I get a remedy,” he says.