Wednesday, 27 May 2015

Police continue to stop citizens unnecessarily                        

This article is really important because it tells you what the rights of citizens in Canada are when they are stopped by the police on the street and what the police can do and what they cannot do when they stop you on the street.   

Citizens walking on a sidewalk minding their own business shouldn’t be stopped by a police officer simply because the officer wants to know who the citizen is. There are exceptional situations that can occur where it would be proper. For example, years ago while I was walking on a sidewalk, suddenly a police patrol car pulled up alongside of me and two officers jumped out and grabbed me and pushed me against the wall of a building. It turned out that a robbery had just occurred up the street and the robber was wearing almost identical clothing that I was wearing and the police thought that I was the robber. When they realized that I wasn’t the man they were looking for, they were very apologetic and then hopped back into their car and drove further down the street looking for the robber.  

Unfortunately, in the City of Toronto, it was the common policy of the police in certain high-risk sections of the city to stop and demand identification from many blacks in those parts of the city. The policy is referred to as carding which is collecting personal information from people and adding that information to an internal database at police headquarters for future use if needed.                         

Now I don’t see anything wrong about such a police policy being enforced if the person stopped was seen littering or stumbling about on the street or acting suspiciously. But what was occurring was that when citizens especially black youths were walking down a street and were doing nothing that would ordinarily alarm a police officer that something was amiss, were stopped, searched and then ordered to identify themselves. Such conduct on the part of a police officer conflicts with the rights of any such citizen to walk unheeded on any street without interference by anyone.                          

Lawyer Frank Addario, who was hired to create the carding policy by the Toronto Police Services Board in December, 2013 said that ending the carding of citizens would just drive bad practices underground, adding that carding had fallen dramatically—83 or 90 per cent in the past year (2014).

He said in his five-page draft report that carding procedures needed to be developed that would ensure compliance with human rights laws, such as the Charter of Rights and Freedoms, the Ontario Human Rights Code and municipal laws.     

Telling the police to abide by such rights and laws is like telling a child to stop putting his hand in the cookie jar.

Then Addario said something in my opinion is totally stupid. He said that eliminating carding would be simplistic. It would not improve the police service's reputation or public trust. Instead, it would frustrate the board's oversight function and affect their ability to communicate with the community.

Is this man for real?  There is nothing that will alienate citizens from not only the police board but also from police officers on the beat than harassing the citizens by demanding information from them when the citizens have done nothing to warrant such intrusions on them by the police. He then said that the police need to explain why they have stopped someone and then give them a chance to call a lawyer.

Hey Stupid One.  Are you saying that if a police officer stops a citizen who is minding his own business while he is walking on a street in a high-risk area of the city and is asked for identification, he must be given an opportunity to call a lawyer before giving the officer his ID information? Where did this lawyer get his brains from—a second hand store?  

Admittedly, if the officer arrests the citizen because he believes he has committed a crime or even a minor offence, then the officer certainly has a right to ask the citizen to  give the officer information about who he is but the citizen also has the right to remain mute if he chooses but quite frankly, that would be really dumb.  Of course, not every interaction between police and a citizen is a detention, such as jaywalking. If the officer takes the citizen to the police station, the officer is bound by law to give the citizen the phone number of a lawyer who is acting as duty counsel from Legal Aid any time of the day or night.

I was the person who brought that law into Canada when I suggested the formation of that law in a speech I gave at a law conference years ago. In October 2014, when my wife and I were driving around British Columbia, I was stopped by a reservation police officer for speeding while driving through an Indian reservation. He just gave me a warning. I asked him out of curiosity if the reservation police have a policy that those who are arrested and taken to their police station are given the phone number of duty counsel. He said, “Of course, That is the law.”    

Currently in Toronto, under the new police rules, officers will need a reason relating to an actual occurrence or a series of occurrences before stopping someone on the street and carding them.              

Unfortunately, in many police forces, there are some really stupid police officers who ignore procedures and harm the citizens that they stop for the sole purpose of investigating them for what they erroneously suspect is a wrongdoing. In this article, I am going to tell you about one of those really stupid police officers.  His name is Andrew Pak who is a police constable with the Toronto Police Service.

On that night of January 15, 2011, Mr. Mutaz Elmardy then 38 years old, left evening prayers at his mosque between 6:40 and 6:45 p.m. He walked south on Parliament Street for a couple of minutes to a convenience store at the southeast corner of Parliament and Shuter Streets.  After spending no more than five minutes in the store, Mr. Elmardy continued east along the south side of Shuter for 5 to 8 minutes. At approximately 6:50 to 7:00 p.m. he saw a police car driving toward him down the opposite side of the street.

As the police car drove by, Mr. Elmardy saw Constable Pak driving the car looking “deep into my eyes”. Mr. Elmardy says he averted his eyes to continue walking although he had a thought that the police may turn around to come and talk to him.  They did so.  As the police car pulled up alongside him, Constable Poole, sitting in the passenger seat, rolled down her window and asked “Where are you going?” Mr. Elmardy says he responded, “Why?”

The officer responded, “It’s a dangerous raping area.”

Now think about this. Is this the reason why those two police officers pulled their car alongside of Mr. Elmardy?  Did they think that he was going to be raped?  Did they think that he was going to rape someone in the area?

Then, the police car stopped.  The driver, Constable Pak, left the car and walked around in front of the car to come face-to-face with Mr. Elmardy.  Mr. Elmardy says that Constable Pak asked him, “Are you fucking with me?” Then, with no warning, Mr. Elmardy says Constable Pak punched him in the face, kicked him, and threw him to the ground.  Mr. Elmardy got up.  Constable Pak punched him in the face again, kicked him again and knocked him down.  Mr. Elmardy says that throughout the beating, Constable Pak kept repeating, “Don’t be mad at me.”

Is that police officer mentally challenged? Why kind of fool beats a man and asks his victim if he is mad at him?

While Mr. Elmardy was on the ground or, perhaps, on his knees, Constable Pak handcuffed him and left him lying on wooden decking in front of a house on Shuter Street. The decking was covered with ice and Mr. Elmardy’s hands were against the ice while handcuffed behind his back.

Constable Pak pulled Mr. Elmardy up to his feet.  He said that Constable Pak pulled his winter jacket down to his wrists and began searching his pockets.  Constable Pak went through the contents from his pockets and threw them on the ground.  He then picked Mr. Elmardy up, took the wallet from his back pants pocket, and threw him down on the deck again.  He says Constable Pak went through his wallet and tossed all of his cards and papers onto the street.

Constable Pak then asked him, “Where you from?” Mr. Elmardy responded, “Africa.” Constable Pak asked, “How long have you lived here?” Mr. Elmardy responded, “Six years.”

Now why would this twerp constable be asking a citizen question like that?  He was not employed by the Immigration Department so him asking those questions were not in his bailiwick.

The second police officer, Constable Poole, remained in the passenger seat of the police car.  Two other police cars pulled up in the meantime.  One of the policemen, who just arrived, saw Mr. Elmardy’s chewing tobacco that Constable Pak had taken from his pocket.  The officer asked if it was a Somalian drug called “chat”.  It was not.

The officer inquired as to why Mr. Elmardy was making such an angry face and asked, “Are you mad at me?”

Mr. Elmardy says he responded “No. I’m mad at Constable Pak because he slapped me in the face.”

Constable Pak apparently interjected, “I didn’t slap you; I punched you.”

Mr. Elmardy said that he was glad that Constable Pak admitted that in front of the new officers who had not witnessed the events.  One of those officers then asked him, “Where you from?”

Mr. Elmardy responded, “Sudan.”

 To which the officer apparently responded, “I knew it.” How could he know that?

According to Mr. Elmardy, Constable Pak then said that he was going to uncuff Mr. Elmardy and let him go.  Mr. Elmardy asked to be taken to the police station to make a complaint.  He said, “I know my rights.”  Constable Pak told him to walk to the station.

Mr. Elmardy says the entire event took 30 to 45 minutes. He was never told why he was handcuffed.  His hands were kept behind him on the icy deck for a long time. No one pulled up his jacket up to keep him warm.  He was not read his rights. Even if he wasn’t beaten, the manner in which he was treated was outrageous and quite illegal.

When he was released by Constable Pak, he walked directly to the police station at Parliament and King Streets. The walk took no more than 15 minutes.  He says he had bruises on his face, a cut lip, his hands were frozen, his knees hurt, his ribs and stomach hurt.  More serious though, he says, was the feeling that he was not worthy of being human.

At the police station, Mr. Elmardy spoke to the intake officer and then to a supervisor – Staff Sgt. [now Inspector] Crone.  The supervisor told him to go to the hospital to get a medical report as the first step in the complaints process.  When Mr. Elmardy tried to show his driver’s license, he realized it was missing.  Inspector Crone was able to determine and tell Mr. Elmardy later that his driver’s license had been seized by Constable Pak because it was expired. I should say that many people keep their expired licences as personal ID.

Mr. Elmardy says that he walked from the police station to St. Michael’s Hospital (where I was born 81 years ago) where he was seen in the ER (Emergency Room). He told the doctor about his headache, jaw pain, swelling under his eye, cut lip, and the pain in his ribs and stomach.  The ER doctor’s note documents tell of swelling above Mr. Elmardy’s his left cheek bone and a small, 2 mm, laceration on the inside of his lip.  There is no mention of abdominal pain in the medical report although the doctor notes that Mr. Elmardy told him that he was punched multiple times in the face and abdomen and kicked in the foot.

Mr. Elmardy produced a number of photographs that he took of himself when he got back to his house later that night after midnight. They do indeed demonstrate swelling above his cheekbone and an abrasion and swelling on his lip.

Mr. Elmardy sued Constable Pak and the Toronto Police Service. Mr. Justice Frederick Myers of the Ontario Superior Court (one of many in the Province of Ontario) said in part;

“In cross-examination, Mr. Elmardy resolutely maintained his story.  He was obviously both intelligent and a very well prepared witness.  He denied conspicuously trying to avert his gaze away from Constable Pak during the first encounter when the police car drove by him.  He denied reacting nervously or aggressively.  He says that he tries to help people get their jobs done.  Although, in this case, he knew his rights and he was not willing to help the police by providing the information they sought.  Nevertheless, he was never rude.  He denied shouting or swearing at the officers.” unquote

Mr. Elmardy says he never saw the first punch coming.  His hands were in his pockets and he was struck by a closed fist with sufficient force to knock him down onto his back.  While he was not positive about the exact order of blows, he was clear that he was punched a second time in the lip by Constable Pak with a closed fist and that it was this second punch that cut his lip. This punch put him on the pavement again. He added that once he was on the ground, Constable Pak started to knee him and kicked him.  Constable Pak’s knee hit him in the ribs and stomach and Constable Pak also kicked him.

Although Mr. Elmardy says that Constable Pak punched him in the mouth, he had no problems with his teeth and his lip laceration was not big enough to require stitches. The defendants’ counsel fairly put to Mr. Elmardy many of the discrepancies that he expected to raise in the evidence of his clients.  Mr. Elmardy stuck to his guns.  At one point he admitted speaking, “loudly” to the officers, but he subsequently made it clear that he denied that there was any further discussion other than the few words discussed above.  He did then add a memory, when prompted in cross-examination, that near the end of the incident, Constable Poole ran Mr. Elmardy’s name through her computer.  Mr. Elmardy recalls that this was almost the last thing done before the police let him go. The computer records show that computer searches occurred between 7:26 p.m. and 7:31 p.m. This is consistent with the commencement of the incident at 6:50 to 7:00 o’clock as Mr. Elmardy said and with the events lasting 40 to 45 minutes.

It was clear to the judge that Mr. Elmardy’s physical injuries were very minor. He was unemployed at the time so he did not miss any work.  He has no out-of-pocket expenditures.  His bruises all healed within several days to a week.  His knees healed although he now complains of knee pain  however he conceded that he could not ascribe cause for that pain to the incident in question. 

When he was asked if Constable Pak read him his rights after handcuffing him, Mr. Elmardy at first argued about what good is being told about the right to a lawyer after the beating is finished?  This sounded like he was conceding that he had been told of his right to counsel.  However, he then clearly denied that this was the case.

Police Constable Andrew Pak has been a member of the Toronto Police Service for over 12 years.  In January, 2011 he was assigned to the Toronto Anti-Violence Intervention Strategy team that is called TAVIS.  This was a provincially funded new unit designed to combat gun violence.  Members of TAVIS were assigned to a different division each night to have high visibility uniformed patrols in high crime areas.

Constable Pak testified that at approximately 7:00 p.m. on January 15, 2011, he and Police Constable Candice Poole were on duty in a marked scout car.  He was driving.  Constable Poole was in the passenger seat.  They were driving westbound on Shuter Street when they noticed Mr. Elmardy walking toward them on the opposite sidewalk.  Mr. Elmardy “rubbernecked” or conspicuously turned his head to watch them as the police car passed.  Although he initially indicated that he did not recall making eye contact with Mr. Elmardy, Constable Pak later agreed with Mr. Elmardy’s lawyer that he did.  He saw that Mr. Elmardy was black.

This begs the question, “If Mr. Elmardy was white, would the officer have taken a second look? To answer that question, ask yourself this question. “Do Jews eat pork?” and then notice the similarity of the two answers.

Constable Pak was interested in Mr. Elmardy because Mr. Elmardy’s eyes  seemed to follow the police car as it went by.  He thought he should speak to Mr. Elmardy and run his name through the computer to see if Mr. Elmardy might have bail or other conditional sentence issues. 

Are we to believe that when a citizen averts his eyes towards a police vehicle as it passes him that he is probably a criminal? If that is so, then that reasoning could be applied in a case where a citizen averts his eyes towards a passing fire truck and therefore, he is probably an arsonist. Do any of those two possibilities make any sense to you whatsoever?

It did to Constable Pak who then steered his car through a U-turn and pulled up beside Mr. Elmardy.  Constable Poole rolled down the window and Constable Pak spoke to Mr. Elmardy with a greeting and told him that he and Constable Poole were from TAVIS. Now why would Mr. Elmardy know what is meant by the word, TAVIS?

Constable Pak testified that Mr. Elmardy responded, “What the fuck do you want?”

Now I want you to brace yourself for the constable’s next statement he gave the court.

“From my experience, verbal aggressiveness is often a strategy adopted by people who have done something wrong and hope to discourage police contact by making it seem to the police officers that contact will be difficult and unpleasant.  An aggressive person can be hoping that the police will just go away and leave them alone.”

I hope you weren’t standing up when you read his response.

Constable Pak also said that he noticed that Mr. Elmardy’s hands were in his pockets. So what!  It was cold outside and he didn’t have any gloves with him.

Rather than responding to his belligerent behaviour, Constable Pak says that he got out of the car and walked around the front of the car towards Mr. Elmardy on the sidewalk.  Constable Pak felt it would be safer to get out of the car so he would be able to react in case something untoward happened.

That was his first major mistake. His original reasoning was obvious faulty and now the fool was acerbating the problem by getting out of the car to face Mr. Elmardy head on.

Constable Pak says that as he came around the front of his car, Mr. Elmardy was facing the scout car and Constable Poole.  Mr. Elmardy turned to his right from facing Constable Poole in the car toward Constable Pak on the sidewalk.  In fact, he turned his body somewhat more than 90° so that the right side of Mr. Elmardy’s body was facing slightly away from Constable Pak. This is known as “blading”. According to Constable Pak, blading is a sign that a person may be hiding something in his pocket such as a weapon.

Constable Pak says that he asked Mr. Elmardy to remove his hands from his pockets and Mr. Elmardy did not do so.  In light of Mr. Elmardy’s verbal hostility, blading, and refusal to remove his hands from his pockets, Constable Pak says he formed the belief that Mr. Elmardy had a weapon.

First of all, Mr. Elmardy was wrong not to obey the officer’s command to remove his hands from his pockets. The officer in my opinion had a right to presume that Mr. Elmardy might have had a weapon of some sort in one of his pockets since he refuse to remove his hands from his pockets. Had Mr. Elmardy removed his hands as commanded by the officer, it is possible that what followed might not have occurred.  Exercising your rights doesn’t mean that you should act stupid in the process.

Constable Pak was adamant that he detained Mr. Elmardy by putting him in handcuffs and he did so for the safety of him and the other officer in order to ensure that Mr. Elmardy had no weapon on him.

He could have patted the man down instead of handcuffing him. If Mr. Elmardy resisted being patted down, then Constable Pak would be justified in handcuffing him.  However, after putting Mr. Elmardy in handcuffs, that is when he did the pat down.

It was then that Officer Pak advised Mr. Elmardy his right to counsel. This stupid officer obviously didn’t know that he only had to give that advice to Mr. Elmardy after he had told him that he was under arrest or detained and why he had been arrested or detained. Section 10 of the Canadian Charter of Rights and Freedoms states that everyone upon arrest or detention has the right to be informed promptly of the reason for the arrest or detention. Although the Constable says he always tells people what he is doing, he agreed that he never told Mr. Elmardy his belief that Mr. Elmardy was violating a bail or sentencing condition.  Constable Pak never asked Mr. Elmardy about whether he had any bail or sentencing conditions.

Constable Pak said that he did not let Mr. Elmardy go because he felt that Mr. Elmardy was at risk of violence. Why?  Because he was saying things like, “The police have too much power” and he was calling the police officers, “assholes.”

Just because a citizen utters those remarks does not mean that he is violent. There is no law that prohibits citizens from making those statements to or about a police officer.

Constable Pak said that he asked Mr. Elmardy for his name but Mr. Elmardy would not speak to him.  Constable Pak wanted Mr. Elmardy’s ID to run it through the computer to see if he was in breach of any court-ordered bail or sentencing conditions. 

Mr. Elmardy had not broken the law therefore the officer had no authority to go on a fishing expedition to see if there were grounds to make the detention of Mr. Elmardy legitimate. That being the case, Mr. Elmardy was under no legal obligation to give the officer his name.

Constable Pak said that no other force was used on Mr. Elmardy.  He denied kicking, kneeing, or punching Mr. Elmardy.  He denied throwing Mr. Elmardy to the ground.   He denied pulling Mr. Elmardy’s jacket down to his wrists.  He does not know how Mr. Elmardy’s injuries happened.

This officer’s nose would make the nose of Pinocchio look like a pimple on the wooden dummy’s face.

Constable Pak says that the when he asked Mr. Elmardy for his name, Mr. Elmardy belligerently responded, “Check my wallet.”  Constable Pak took this to be an invitation to take Mr. Elmardy’s wallet from his pocket which he did.  Constable Pak denies throwing any of Mr. Elmardy’s items on the ground.

After Constable Poole ran Mr. Elmardy’s name through the computer and saw that there were no outstanding warrants out for him, he took the handcuffs off and sent Mr. Elmardy on his way without so much as an apology.

In cross-examination, Constable Pak agreed that it is the role of all Toronto police officers, including TAVIS officers, to obtain “208 cards.”  These are intelligence gathering forms providing details of contacts between the police and members of the public.  The process of gathering these forms is known publicly as “carding.”  Constable Pak agreed that he tries to complete as many number 208 cards as he can to prove he is doing his job. All of the police officers who testified wanted to downplay the role of “carding.”  Yet they all agreed that it was part of their duties.  Constables Pak and Poole spoke of obtaining credit from superiors for carding, interacting with people as required for an officer in his position in Toronto.

Does this mean that the police officers have quotas to meet and for this reason, they will stop anyone they see on the street? That is most improper.

Constable Pak agreed with Mr. Elmardy’s counsel that his concern that Mr. Elmardy might be violating a bail condition was a “hunch.” 

What was the hunch? Was it as innocuous as Mr. Elmardy turning his head in the same direction that the police vehicle was going?  WOW!  If police officers were to arrive at hunches for that reason, then the citizens had better avoid looking at police vehicles whether they are moving or are stationary.

He reiterated that the TAVIS unit is responsible for self-generating work.  That is, they investigate, talk to people, show a presence in the community, and card people in high risk areas. If that is the policy of the police in Toronto, then anyone no matter what their age or sex is who lives in a high-risk area of the city can be stopped, questioned and told to provide ID to the officer that approaches them and makes the demand. The police don’t have that kind of authority. During the Second World War, the Nazi Gestapo agents had that authority but nowadays, police officers do not have that authority.

Constable Pak also denied opening Mr. Elmardy’s jacket or pulling it down to his wrists as alleged. The 208 cards submitted by Constables Poole and Pak note Mr. Elmardy’s shirt colour.  Constable Pak was unable to remember how they determined Mr. Elmardy’s shirt colour if he and the other officer did not open or take his jacket down.

The judge in his ruling said in part; “Neither of the officers was able to articulate any reasonable basis to stop the plaintiff connected to investigating criminal behaviour on his part.   There was no reason for Constable Pak to have a “hunch” about bail or sentencing conditions and none for Constable Poole to have a concern about weapons.  Had she stopped every person in 52 Division for the prior 10 days because of her heightened sensitivity?  Unless she did, she had no basis to single out Mr. Elmardy.  Rather, I infer that they decided to talk to him to initiate what they refer to as an “interaction with the community” i.e. to card him.  After things got out of hand, rather than admitting that it was a random stop – which would have been perfectly lawful – they both felt the need to backfill a purpose.  However, their evidence as to their purposes conflict.”  unquote

The judge also said in his decision; “Constable Poole was asked in chief if Constable Pak punched the plaintiff.  Constable Poole said she did not know.  She was focused on Mr. Elmardy’s left side and does not recall what Constable Pak did.  How can that be true?  Constable Pak was on Mr. Elmardy’s right hand.  Constable Poole was on his left.  It is virtually physically impossible that she would not have seen her partner strike Mr. Elmardy in the face.  But she does not say, “I was right there.  That did not happen.”  She just has no recollection.”

The judge said, “If Constable Poole was not already right there, she was close enough in my view to have been unable to fail to see Constable Pak punch Mr. Elmardy.  It is not the kind of thing that one forgets.  I do not accept Constable Poole’s denial of memory and I infer that her unwillingness to outright deny that it happened, makes it more likely than not that Constable Pak did indeed punch Mr. Elmardy in the face.” unquote

In my opinion, her having no recollection of seeing her partner strike Mr. Elmardy in his face is a bald-face lie. But then am I surprised?   Of course not. It is not uncommon for courts to face what is commonly referred to as the “Blue Wall” of denial when police officers give testimony in court about their fellow officers.  

This officer should be charged by the police for perjury. Will that happen? Not likely. I can see it now.  Her superior is saying to her while patting her on the head.  “Now, now my dear. Lying in court is a no no. Try and not do it anymore. That’s a good girl.” Ignoring perjury by police officers is why so many of them lie in court.

Decision of the judge

 “Constable Poole says that while she was confirming the plaintiff’s identification in the car, the plaintiff was acting belligerently.  Constable Poole recalls him calling them, “assholes” and saying that the police had too much power.  None of this is in her contemporaneous notes.  It is hard to understand how it was that Mr. Elmardy was detained, handcuffed for a full 20 to 25 minutes before the computer searches were performed, and the only expressions of belligerence, in fact the only conversation with him at all that Constable Poole recalls four years later with no notes is the exact same two insults that Constable Pak recalls.

“It was Constable Poole who wrote the plaintiff’s information on the 208 card that was submitted as a result of this interaction.  She has no recollection of any conversation in which the plaintiff (Mr. Elmardy) was asked where he was from.  She does not know how she came to know that the plaintiff was from Sudan as she wrote on his card. It is perfectly obvious that Constables Pak and Poole knew that Mr. Elmardy was from Sudan because he told them so in response to one of their questions.  

“Constable Poole testified that once she was satisfied that the plaintiff did not have any weapons; she then became concerned that he might be violating bail conditions.  This is why she wanted to run his name through the computer.  She gave no reason for forming this concern. 

“Mr. Elmardy exaggerated his injuries and padded the incidents to try to bolster his evidence.

 “Having heard all of the witnesses and pieced together their various versions of events, I am satisfied on a balance of probability that: (a)  Constables Pak and Poole had no reasonable suspicion of criminal conduct committed by Mr. Elmardy when they decided to initiate contact with him.  It started as just an interaction with a community member. (b)  Mr. Elmardy was hostile to the police officers and had his hands in his pockets as it was cold outside and he was not wearing gloves. (c)  The police constables got out of the car and asked Mr. Elmardy to take his hands out of his pockets.  When he declined to do so, they subdued him. (d) In the course of subduing Mr. Elmardy, Constable Pak punched him in the face.  Twice.  There was other incidental contact during the struggle but nothing of enough significance to cause injury, to cause Mr. Elmardy to mention it to the Dr. Blundell at the ER, or to include it as a ground of complaint to Inspector Crone. (e) Constable Pak opened Mr. Elmardy’s jacket, emptied Mr. Elmardy’s pockets including taking out his chewing tobacco and his wallet.  No part of the story of any of the witnesses including the rest of Constable Pak’s evidence is consistent with Constable Pak’s claim to have had some implicit consent or instruction from Mr. Elmardy to look at or take his wallet.  Mr. Elmardy was hostile.  He did not want to be speaking to the police.  He did not give a knowing consent to a search. (f)  One of the police officers questioned Mr. Elmardy about where he was from.  I cannot say on the balance of probability that they taunted him about his origins as alleged. (g) Constables Pak and Poole left Mr. Elmardy just lying on his handcuffed hands on the deck of the neighbouring wooden retaining wall for 20 to 25 minutes before running their computer searches. Whether there was built up ice or not, it was cold and uncomfortable. It made Mr. Elmardy’s hands numb and it hurt.

“The police are entitled to speak to members of the public with whom they interact.  Similarly, members of the public are entitled to decline to speak to the police.  Had Constable Pak approached me, I might have given him the information he wanted.  I might have said, “Constable, I prefer to not answer your question and I would like to be on my way now please.”  But, Mr. Elmardy is not me.  He brings his life’s experiences with him.  For whatever reason, he was hostile to the police and clearly wanted nothing to do with them.  When one swears at a policeman, it is probably logical to expect a punch in the face.  Many would say that it is deserved.  But it is not.  The police deal with all manner of members of the public.  Each brings his or her own life and troubles, experiences and joys with him or her to each encounter.  Not all are polite.  No law says they have to be.

“So what is a policeman or policewoman to do when he or she approaches someone who is hostile?  Constable Pak says that hostility is a sign that someone is hiding something and hopes the police will go away.  I do not understand why the first part of the sentence follows.  Hostility certainly means that the person hopes the police go away.  It is not hidden or implied.  The hostility is a direct statement of a lack of desire or consent to engage further.  What basis was there for Constable Pak or Poole to conclude that the hostility brought with it some suspicion of criminality?  It cannot be that the mere act of refusing consent to speak to the police can form a reasonable basis of criminality.  That would vitiate the right to remain silent.  Nor can the fact that a person expresses his or her refusal with particular clarity and flavour itself, without anything more, be a basis to form a reasonable suspicion of criminality.  It cannot be that the mere act of expressing one’s self impolitely is a reasonable basis for police suspicion of criminality.  There are too many innocent reasons why a person might be rude for mere rudeness, without more, to be a basis for reasonable suspicion (of criminality).

“If the police wish to exercise their undoubted power of investigative detention, there must be a reasonable suspicion that the person is implicated in criminal activity that is under investigation.  A hunch is not enough.   Assessment of the lawfulness of a detention requires a balancing of the police power to investigate and the individual’s liberty interest.  There must be a “clear nexus between the individual to be detained and a recent or on-going criminal offence.

“Investigative detention at common law is to be brief – perhaps a few seconds – to allow for a pat-down if necessary to protect officer safety.  But the pat-down is not to be used to compel the person detained to comply with the requests for information being made by the police.  An investigative detention that is held for longer than reasonably necessary for its limited purpose becomes a de facto arrest.  

“In this case, there was no basis to detain Mr. Elmardy as there was no criminal investigation under way.  Constable Pak’s “hunch” about bail conditions was arbitrary at best and there was no nexus between Mr. Elmardy and a recent or ongoing criminal offence.  Moreover, Constable Poole undermined Constable Pak’s “hunch” by testifying that she and Constable Pak together discussed and agreed to stop Mr. Elmardy on a suspicion that he might have a weapon.  That concern was raised due to the location of the encounter being in a high crime area and the fact that Constable Poole arrested someone with a gun 10 days earlier nearby.  That too was arbitrary and does not amount to a clear, or any, nexus between Mr. Elmardy and a recent or ongoing criminal offence.

“The officers then say that they detained Mr. Elmardy because he had his hands in his pockets and this presented an issue for officer safety.   It is perfectly understandable why officers lawfully carrying out their duties investigating a criminal offence might wish to see the hands of someone with whom they are speaking for reasons of safety.  However, this is not universally so.  If the officers were in an office speaking to a bank manager whose hands were behind her back, there would not necessarily be a safety concern.  If the judge’s hands are hidden behind the lip of his or her dais, an officer testifying in the course of her duties has no safety concern.  The lawfulness of police conduct depends on the justification for the use of their powers in the circumstances (they finds themselves in).

“Here the police were engaged in a random stop and Mr. Elmardy did not consent to speak to them.  He had his hands in his pockets.  But it was cold out and he had no gloves.  The police had no right to detain Mr. Elmardy for carding alone.  Nor does the act of walking outside with one’s hands in his pockets on a cold night in Toronto in January near Moss Park provide a reasonable basis to suspect that a person is carrying a weapon.   There are no “objectively verifiable indications” supporting a subjective suspicion that this person might have been armed, Even a pat-down is not justified on the basis of a “vague or non-existent concern for safety, nor can the search be premised upon hunches or mere intuition.”  Nor can Mr. Elmardy’s express refusal to consent, even if rudely conveyed, provide a basis to detain him.  There was no criminal act being investigated.  It is not crime to be rude or to try to keep one’s hands warm.  In my view the detention of Mr. Elmardy in the circumstances that night in that place and time was unlawful and was a violation of his section 9 rights under the Charter.

“Similarly, there was no lawful basis for Constable Pak to search Mr. Elmardy’s jacket pockets and to remove his tobacco.  Nor was there a lawful basis for him to search for Mr. Elmardy’s wallet.  The Supreme Court of Canada was clear in that issue, that a pat-down for weapons may be appropriate for officer safety in an investigative detention.  No more is allowed without exigent circumstances or some other lawful basis.  There was none here.  Constable Pak violated Mr. Elmardy’s section 8 rights under the Charter.

Moreover, why was Mr. Elmardy handcuffed at all?  Constable Pak said that when he took Mr. Elmardy’s hand out of his pocket, he did not resist.  In Fountain, (a higher court decision) a pat-down was conducted without handcuffs where a suspect was blading his body and was “set for action. Constable Poole says that Mr. Elmardy struggled a little.  But Constable Pak says that he is the one who did the handcuffing.  He never said why.  In some cases, it may be obvious.  Perhaps it is in most regular criminal investigation cases.  But this is not one of them.  I find it helpful to keep reminding myself that this was an innocent man who was just walking along the street minding his own business who was approached by the police.  His offence, if any, was speaking rudely to the police.  That is not a basis to detain or handcuff someone.

“In addition, it is apparent that Mr. Elmardy was not told of why he was detained or of his right to counsel upon being detained.  Constable Pak agreed that he did not tell Mr. Elmardy of his suspicion regarding bail conditions.  Constable Pak's claim that he gave Mr. Elmardy a form of “Coles’ Notes rights” cannot be accepted.  Neither Mr. Elmardy nor Constable Poole heard any such thing.  Constable Pak violated Mr. Elmardy’s section .10(a) and (b) rights under the Charter."

I hope this article is useful to you. I would like to give you some more advice. When an officer tells you that he wants you to give him your personal information, do the following;

1. Ask him or her why he or she wants that information.

2. Ask the officer if you are being charged with any crime or offence.

3.  If the officer says yes, ask the officer what the charge against you is.

4.  If the officer tells you that you are not being charged with any crime or offence, then tell him that you know that you don't have to give him any information with respect to  your personal identity. Then walk away.

5.  If the officer arrests you, don't fight him or her.  you can deal with the officer later when you sue him or her for for false arrest. 

6.  If the officer says that a certain crime was just committed nearby and that you fit the description of the criminal and the officer asks you to explain where you have just come from, give the officer that information so that the officer can search elsewhere for the criminal. 

7.   If the officer says that he or she thinks that you are wanted for a bail, parole or probation violation and you are not under such restrictions, then show him your identification so that you can then be on your way to where you were originally headed. 

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