Friday 1 June 2012


It shouldn’t come as a surprise to my readers that police on occasion physically abuse suspects. What is unusual however is when a judge rules that because of the physical abuse that the defendant had to endure when as a suspect in police custody, he suffered from being physically abused; his sentence for the crime he is convicted of is reduced. 

Undercover police arranged to purchase cocaine from a man called Dinh at a Toronto motel. Shortly after his arrest at the motel, police found nearly a kilogram of cocaine in Dinh's car. Immediately after the arrest, the police interrogated Dinh for nearly an hour in the motel room, without first providing rights to counsel which is required by law. They inflicted numerous injuries upon him as a result of a beating they gave him.  To make matters even worse, they even ignored his request for medical help. After they secured his home, police remained inside and proceeded to conduct an extensive and illegal search of the house, several hours before the search warrant was issued  subsequent to the search of his home.  They located another two kilograms of cocaine along with an ecstasy pill press, over 2,000 grams of ecstasy, and other drug related materials. He was charged by the police for being in possession of a controlled substance and trafficking in same which is a non-Criminal Code offence but is a regulatory offence.  

Sentencing of Dinh followed his guilty plea to a charge of trafficking in cocaine. During the sentencing aspect of his trial, it was established that he had no previous criminal record. However, the judge had to also consider the deterrent factors both for the defendant and the public at large, the denunciation of the crime, the risk of him re-offending, the protection of the public, his guilty plea which resulted in less court time being used, the seriousness of the offence and the maximum and minimum sentencing rules along with his current employment.

The judge learned from a probation officer’s report that Dinh was 28 years old and had no criminal record. He was born in Vietnam and arrived in Canada in 1986 with his parents and brother. He had completed a three-year college course in automotive technology and had worked as an automotive technician for 10 years. He has a supportive and stable family, with whom he resided. Since his initial release (two days after the arrest) he had been under strict house arrest, with provisions that permitted his ongoing employment. There had been no violations of his bail conditions. Dinh stated that he was drawn into a drug subculture as a way of making fast and easy money and support his family. He expressed remorse for his behaviour.

But the trial judge also decided to consider the physical abuse that Dinh had undergone by the police while in their custody.  The police assaulted Dinh in the motel room, even though he was fully compliant with their demands and he didn’t resist arrest.

At a voir dire (trial within a trial) arising from Dinh's Charter challenge based on alleged breaches of s. 7, 8 and 10(b), the police gave false evidence designed to mislead the court, even after being confronted with reliable evidence to the contrary. The trial judge also held that because the police had assaulted Dinh in the motel room, the associated breaches of ss. 7 and 10(b) of the Charter could be addressed by way of a reduced sentence.

Section 7 states:

Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

Security of the person includes the protection of one’s physical integrity. Torturing a suspect would be an effrontery to the physical well-being of the suspect such as beating him for the purpose of forcing him to give the arresting officers any information the suspect may have that would further their search for more evidence. 

The judge had accepted Dinh’s statement re the physical abuse he received from the police as being valid and said that such abuse constituted police misbehaviour and that abuse of this nature undermined society's confidence in the police and the courts. The trial judge also held that because the police assaulted Dinh, associated breaches of sections 7 and 10(b) of the Canadian Charter of Rights could be addressed by way of a reduced sentence.  

Section 8 states:

Everyone has the right to be secure against unreasonable search or seizure.

All of the evidence seized from Dinh's home was excluded as evidence against him as a result of the unlawful search (no warrant obtained) by the police.

Section 10(b) states:

Everyone has the right on arrest or detention to retain and instruct counsel without delay and to be informed of that right.

Years ago while I was speaking at a crime conference held in Ottawa, Canada’s capital city, I spoke about the need for 24-hour duty counsel who would be available to anyone arrested and taken to a police station. Three months after my speech, Ontario Legal Aid brought my proposal to fruition. Now anyone in Canada who is arrested and taken to the police station, day or night, no matter what the hour, is given the phone number of the Legal Aid lawyer who is on duty and the suspect can ask him or her for advice with respect to protecting the suspect’s rights while in the custody of the police.

This right was not given to Dinh. He was questioned and beaten during the illegal questioning while he was still in the room of the motel and he hadn’t been informed of his right that he did not have to make a statement or answer their questions and that he could speak with the Legal Aid duty counsel for advice about his rights.

The trial judge considered the unique circumstances of this case involving the beating given to Dinh and the denial of his Charter rights by the arresting officers and their illegal search of his home when she passed sentence on him.

Dinh was sentenced to a conditional sentence of two years less a day. Other than the very serious nature of the offence, there were no aggravating features to the case. However, there were numerous mitigating factors, including Dinh's guilty plea, his favourable personal circumstances, his lack of a criminal record and the fact that in the two and a half years since this arrest he had been fully compliant with his bail conditions.

The second group of mitigating features flowed from the serious and extraordinary police misconduct involved. The police misdeeds were calculated, deliberate and utterly avoidable. From their initial arrest of Dinh until their ultimate testimony in court, the police showed contempt not just for the basic rights of every accused but for the sanctity of a courtroom by them lying in court. Misbehaviour of this nature, particularly when committed by police officers, struck at the heart of the administration of justice. It undermined society's confidence in the police and in the courts.

The judge felt that in the unique circumstances of this case, a conditional sentence was warranted. The offence was not punishable by a minimum term of imprisonment, and the Crown has agreed that the Court could impose a sentence of two years less a day. The risk of Dinh re-offending was low, and the community would not be endangered if he were bound by a conditional sentence. Dinh appeared both chastened by this experience and motivated not to repeat it. In these circumstances, the principles of denunciation and deterrence were satisfied without incarceration, provided reasonable conditions are attached.

The judge also ordered that a DNA sample of his blood was to be taken and kept in the National DNA blank and there was a weapons prohibition but I don’t know how long that prohibition would be.

In Canada, a conditional sentence is one where the convicted person is not sent to prison but instead serves his sentence while living in his home. Such a sentence permits the person to work, shop for groceries, attend church, see his doctor and it also states the hours that he must remain in his home. Generally the hours he must remain in his home are between 7:00 pm to 6:00 am and generally during all weekends and official holidays unless he is going to one of the places authorized by the court.

In my opinion, the decision of the judge was extremely fair considering what Dinh had been put through by those two rogue police officers and considering Dinh’s background prior to his arrest and his conduct after his arrest.

Unfortunately, I don’t know what happened to the two rogue cops. I would hope that they would be dismissed from their police force as society doesn’t need those kinds of police officers in their police forces.

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