Judge rules police planted heroin in order to frame driver

Drug charges stayed, officers accused of colluding in ‘egregiously wrongful conduct’

Toronto Police officers planted heroin in a man’s car and then “obviously colluded” in their testimony in court, a Superior Court judge has ruled, though it is not known whether the cops will face any discipline.

Calling the officers’ actions and their misleading testimony in court “egregiously wrongful conduct,” Justice Edward Morgan threw out the seized drugs as evidence and stayed the drug charges against the defendant.

According to the judge’s written ruling, Const. Jeffrey Tout, Det. Const. Fraser Douglas and major crimes officers Det. Const. Benjamin Elliot and Sgt. Michael Taylor all presented differing versions of what happened the afternoon of Jan. 13, 2014, when Nguyen Son Tran was pulled over for apparently running a red light.

What they agreed on, however, was that Tran had a pile of loose heroin powder on his dashboard, which led to a search of his car and the discovery of 11 more grams of heroin, wrapped in plastic and concealed behind the steering column.

But police couldn’t produce any plausible explanation for how loose heroin got onto the dashboard — there were no partially empty bags or implements found in the car, no heroin found on Tran’s clothing — nor could they also explain why the driver wouldn’t simply have brushed aside the powder before police approached his vehicle, Morgan wrote.

“There is too much falsehood, and too many unexplained and otherwise unexplainable elements in the police testimony,” wrote the judge in his decision. “I conclude from all this that the loose heroin was placed on the console of the Toyota by the police after their search, and was not left there by the defendant prior to the search.”

Morgan noted “this is obvious collusion and its denial is disturbing.”

Police who are found to have given misleading or false testimony are rarely disciplined, according to an award-winning Star investigation. Prosecutors are supposed to review judges’ decisions and may opt to refer them to police discipline committees, which may in turn launch their own proceedings.

However, neither the Public Prosecution Service of Canada, which prosecutes federal drug cases, nor the provincial Ministry of the Attorney General will confirm whether a specific case has been referred for discipline.

Toronto Police Service spokesman Mark Pugash said comments of this type are taken very seriously by the force.

“They will be fully investigated by our Professional Standards unit, after which whatever action is necessary will be taken,” Pugash wrote in an email.

Justice Morgan wrote that the officers’ actions suggest “a strategy designed not so much to investigate a crime scene but to cover their own tracks.”

“What makes this case different is that it doesn’t deal with an officer lying but a conspiracy between officers,” said Tran’s lawyer Kim Schofield.

Tout testified that he pulled over Tran after he ran a red light.

After calling in the licence plate, Elliot swore under oath that he recognized the plate number from a heroin arrest he had made a year earlier.

Schofield, however, produced recordings of the police dispatch radio that showed Tran’s licence plate was never mentioned on air.

“Officer Elliot and Sgt. Taylor both testified to a patently untrue story about hearing the Defendant’s licence plate over the radio, and they stuck to that story until it was undermined by the recordings of the very radio transmissions they had heard,” ruled Morgan.

Tran had pleaded guilty to heroin possession from his previous arrest, but claimed that it belonged to someone else.

According to the ruling, Tran testified that he was stopped at a red light when he noticed Elliot — who had arrested him the previous year — in plain clothes and an unmarked car pull up beside him.

After driving through a green light, Tran was pulled over by Tout in a marked police car. As Tout approached his car, he seemed to be confirming Tran’s identity on a cellphone, saying “exactly him” when he got within earshot.

Tran stepped out of the car and Elliot, who arrived “less than two minutes” later, searched his car and produced the bag of heroin, saying “I found it,” the judge wrote.

“Here, the false creation of a pretext to search the Defendant’s vehicle, combined with the collusive fabrication of a story by the two lead Officers as to why they came to assist in the traffic stop of the Defendant, certainly amounts to egregiously wrongful conduct,” ruled Morgan.