By Michelle Stephenson
Following an unpleasant encounter with Toronto’s police force in 2011, Mutaz Elmardy sued the Toronto Policy Services Board and Police Constable Andrew Pak for assault, battery, unlawful arrest and the violation of his rights under the Canadian Charter of Rights and Freedoms. In the recent decision, Elmardy v. Toronto Police Services Board, the Court found in his favour, awarding over $20,000 in damages.
Mr. Elmardy is a permanent resident of Canada, who moved here from the Sudan as a refugee in 2005. On the evening of January 15, 2011, Mr. Elmardy had left evening prayers at his mosque and, on his walk home, was stopped by Toronto Police Constable Pak and his partner.
According to Mr. Elmardy, after he politely declined to answer their questions, Constable Pak got out of his car, punched Mr. Elmardy twice in the face and kicked him on the ground. He was then handcuffed, searched, had his jacket pulled, and was left lying on an icy surface for about 25 minutes.
Constable Pak’s story differed from Mr. Elmardy’s significantly.
Pak and his partner were members of a police unit designed to combat gun violence by showing a strong police presence in high-crime areas. He and his partner testified that they had noticed Mr. Elmardy acting evasive as they drove by and decided to investigate; Constable Pak claimed he suspected Mr. Elmardy might be in violation of bail conditions, while his partner testified that they had believed he might have a gun. Telling somewhat conflicting stories, the officers stated that when they stopped Mr. Elmardy he has had been aggressive, swore at them, and refused to remove his hands from his pockets.
While he admitted to handcuffing Mr. Elmardy, Constable Pak denied ever hitting him. Confusingly, his partner asserted that she was right beside him at this time yet could not recall whether or not Pak punched him. Furthermore, when faced with evidence of the fact that they had written down his shirt colour, despite denying opening his jacket, and that they were in possession of his driver’s license, despite denying searching him, their stories once again conflicted.
When asked why Mr. Elmardy was left cuffed in the cold for over twenty minutes before they conducted a search of his name and released him, they had no explanation, but admitted to socializing with other officers who had stopped at the scene.
Ultimately it was held that both sides were exaggerating their stories. While it was not credible that Mr. Elmardy had been polite with the officers nor had he been beaten as extensively as he stated, he was punched in the face twice by Constable Pak, was searched without his consent, his jacket was undone or pulled down, and he was left in the cold for over twenty minutes.
All of this occurred despite the fact that, as the Court found, Mr. Elmardy was the subject of a random stop, with no reasonable suspicion that he had a weapon or was connected to any crime. While Justice Myers stressed the fact that police officers are entitled to randomly stop and question citizens, it also important to recognize that those citizens are by no means required to answer those questions. Furthermore, they are not required to do so politely.
The officers had no right to detain Mr. Elmardy just for the purposes of asking him questions; “nor does the act of walking outside with one’s hands in his pockets on a cold night…provide a reasonable basis to suspect a person is carrying a weapon.”
Furthermore, his refusal to consent to questioning, no matter how rudely conveyed, was also not a basis to detain him. After all, “it is not a crime to be rude or to try to keep one’s hands warm.”
Mr. Elmardy was detained without being told the reason or of his right to counsel, violating his s.10 rights under the Charter. He was also kept outside in the cold for 25 minutes for no apparent reason, constituting an unreasonable exercise of police powers or an unlawful arrest, violating his s.9 rights under the Charter.
Mr. Elmardy testified that he had moved to Canada to “feel the law” and that he deserved its protection as much as any citizen. The Court found that the police officers had “shattered Mr. Elmardy’s feeling of the law”, and that, despite his minimal injuries, this was a case warranting more than general damages. For the purposes of vindication and deterrence of similar police behaviour, punitive damages and a declaration by the Court that Mr. Elmardy’s rights had been unjustifiably violated were warranted.
Altogether Mr. Elmardy was awarded $27,000 in damages:
- $5000 for his pain and suffering;
- $2000 for the false arrest, breaching his s.9 rights;
- $1000 for the illegal search;
- $1000 for the breaches of his s.10 rights; and
- $18,000 in punitive damages.
The magnitude of the punitive damages reflected the Court’s need to express its disapproval of the conduct of Constable Pak.
It appeared that neither Constable Pak nor his partner, or any of the officers who stopped to socialize with them, knew that an individual not under a criminal investigation is allowed to walk down the street with his hands in his pockets “and tell inquisitive police officers to get lost” without being detained, searched, or assaulted.
As such, it was “important for [Toronto Police Services] and Constable Pak to hear it from the Court.”