“Racial profiling has a serious impact on the credibility and effectiveness of our police services. It has led to distrust and injustice. It must stop,” wrote Justice Harriet Sachs of the Ontario Divisional court last week.
Justice Sachs was writing on behalf of a panel of judges who found that Mutaz Elmardy, a Sudanese man who was stopped by Toronto police while walking on the street in 2011 because of his race and then assaulted, had been racially profiled.
Elmardy had appealed the decision of a trial judge who awarded him $27,000 in 2015 Justice Frederik Myers had found that he had been unlawfully arrested, searched and assaulted by an officer. But the judge did not find there was evidence Elmardy had been racially profiled.
Last week, a panel of Divisional Court judges disagreed and granted Elmardy’s appeal, increasing the total award for damages to $80,000.
“There is a need for an award of damages that is significant enough to vindicate society’s interest in having a police service comprised of officers who do not brutalize its citizens because of the colour of their skin and that sends the message to that service that this conduct must stop,” wrote Justice Sachs in the appeal decision.
“The courts and others have already made statements about the serious, wrongful nature of this type of conduct. Yet it continues to occur, ” she noted.
At the trial into Elmardy’s lawsuit in 2015, the court heard that two police constables, Andrew Pak and Candice Poole, who were in their police cruiser, spotted Elmardy walking alone on January 15, 2011 with his hands in his pockets.
Pak testified that he “had a hunch” the man was violating his bail terms by walking alone, and that he had looked at the cruiser as it was driving by. Poole testified she had an “immediate concern” he might be carrying a weapon because his hands were in his pockets.
They did a U-turn and asked Elmardy questions. Myers, in his ruling, said Elmardy “was hostile to police,” and that when he refused to take his hands out of his pockets, the officers subdued him and Pak punched him twice in the face. Elmardy was then knocked to the ground, handcuffed and left on the ice with his hands exposed to the cold weather for 20 to 25 minutes.
The officers did not give him a reason for his detention or advise him of his right to a lawyer, Justice Sachs wrote.
Elmardy, who was walking home from evening prayers at his mosque, was subjected to the police practice of “carding,” as officers then filled out a card with information about Elmardy, writing that his skin colour was black and his place of birth was Sudan.
The trial judge had also found the officers lied about the reason for stopping Elmardy, Justice Sachs noted, saying their explanations had been rejected by Justice Myers and were “infected with racial stereotypes.”
Justice Myers said Pak “took the law into his own hands and administered some street justice.”
“In this case, the officers’ unreasonable beliefs about the appellant caused them to assault the appellant, unreasonably search him and forcibly restrain him,”
Justice Sachs wrote. “In other words, instead of presuming his innocence, they assumed and acted as if he were guilty and dangerous.
“He must be violating his bail and he must be carrying a gun. These assumptions, for which there is no explanation other than the colour of the appellant’s skin, caused them to blatantly and aggressively violate the appellant’s constitutional rights.”
Commenting on the case, Elmardy’s lawyer, Andrew McDonald, said that “the equality guarantee in the Charter is not just words on a page. It means what it says. It will be enforced by our courts. It can protect.”
” Mr. Elmardy had to suffer so that all Canadians, including the police, can be reminded that we are all equal before the law and have equal benefit of the law,” he told the Caribbean Camera.
Elmardy had lodged a complaint with the Office of the Independent Police Review Director but an investigation found his complaints couldn’t be substantiated.
Toronto Police spokesman Meaghan Gray said the matter has been turned over to Professional Standards for investigation.