Judge aghast at ‘police misconduct’

Man with gun acquitted after ‘complete disregard’ of his rights

After finding last month that a 20-yearold man was illegally searched, beaten and wrongly arrested, a Toronto judge expressed concern at how police misconduct can slip under the radar.

“The reality is, of course, that had the police not found a gun, this entire situation would likely have never seen the light of day,” Superior Court Justice Ian Nordheimer wrote in a scathing ruling released March 31. “That reality illustrates the invidious nature of improper police conduct . . . When police misconduct leads to no such discovery, no charge is laid and no court ever has the opportunity to review and rule on that conduct.”

Nordheimer also found the evidence of a senior officer on the scene, Police Constable Kimberley Sabadics, was “constructed for the sole purpose of attempting to justify her hunch that (the accused) had a firearm.”

Superior Court Justice Ian Nordheimer said police can’t detain suspects in the ‘speculative hope that a firearm will be found.’

He wrote: “While Officer Sabadics may not have set out with the intent to violate (Samatar Jinje’s) rights, the fact is that her conduct in this matter was not justified by the facts, regardless of what personal judgments she might have formed. Indeed, her conduct demonstrated a complete disregard for Mr. Jinje’s constitutional rights.”

He excluded the handgun from evidence and acquitted Jinje.

Police spokesperson Mark Pugash would not comment on what is being done in this specific case, but said “the Toronto Police Service takes such comments very seriously and looks into all such matters.”

All details related in this story are from the judge’s ruling.

The case escalated from an incident on Jan. 12, 2013, a Saturday evening.

Two police officers investigating the robbery of an iPhone at Yorkdale Mall stopped Jinje and two friends as they walked though a park towards the mall. They matched the description of the suspects, given simply as “three black males.”

Jinje showed one officer his own iPhone and unlocked it, he said.

Then two more officers arrived, followed shortly after by four others, including Sabadics.

Jinje testified that, as the officers he had already provided his information to spoke to his friends, Sabadics asked what was in his pocket. He showed her his phone. She asked what was in his other pocket.

He responded by asking why the officer was harassing him and his friends and why there were so many police officers arriving.

Sabadics testified that Jinje’s body language and demeanour changed, though this was not observed by the other officers. He became nervous, looked around and turned his right side away from her, she said. His hands were in his pockets, she said, and she could see the right pocket was heavier than the left.

Jinje said his hands remained out of his pockets at all times. Sabadics mouthed “gun” to another officer, and they proceeded to arrest Jinje.

Jinje admitted to resisting the arrest, but what followed was described by Nordheimer as a “freefor-all” involving six officers. One officer described hitting Jinje four or five times in the head with the butt end of a baton, another said he used his knee to hit Jinje in the ribs four times. After being handcuffed, Jinje was taken to hospital for stitches. He was also charged with unlawful possession of a firearm.

Nordheimer found it “problematic,” he wrote, that all of the officers involved wrote up their notes of the incident together, and that one officer testified they discussed what had happened. It “raises the spectre of collusion,” he wrote.

Sabadics, a 27-year veteran of the force, was the only officer who claimed not to remember where she made her notes, or who else was present, Nordheimer noted.

“The failure of Officer Sabadics to be upfront about this issue is an additional factor that detracts from her credibility and reliability as a witness. Put bluntly, if Officer Sabadics was not prepared to be honest about this issue, then one must ask what else she was not prepared to be honest about,” Nordheimer wrote.

“Certainly this was a case where there were some very compelling facts and reasons to exclude the evidence obtained by the police,” said Jinje’s lawyer, James Miglin. “Unfortunately there are a lot of other violations of individual rights which equally impugn one’s sense of dignity and liberty in this country that never get remedied, either because they don’t result in charges, or a court concludes the facts do not warrant the exclusion of the evidence, leaving people with little sense that their constitutional rights mean anything.”

Nordheimer noted that Jinje testified he had been stopped by the police numerous times in his life — 27 instances, as recorded by police.

He does not have a criminal record, is employed and also goes to school, said Nordheimer.

“The conduct of the police will also, undoubtedly, only serve to reinforce Mr. Jinje’s perception of unequal treatment at the hands of the police,” Nordheimer told the court.

“He deserves the same respect from the police as any other citizen of this city ought to receive.”

In his ruling, Nordheimer stressed the need to have handguns removed from the streets of Toronto.

“However, those efforts must be lawful ones, undertaken with full respect for the constitutional rights of every citizen,” he wrote.

A spokesperson for the Ministry of the Attorney General would not comment on what happened in this case.