He was guilty only of Walking While Black.
Mutaz Elmardy, 38, was on his way home from prayers, just minding his own business as he walked along Shuter St. on a cold winter’s night in January 2011. Stopped by police, he refused their demand to take his hands out of his pockets. And for that, he was punched twice in the face, unlawfully searched and then left handcuffed on the ice for almost half an hour in the -10C cold.
The Sudanese refugee claimed he’d been racially profiled and sued Const. Andrew Pak and the police services board for $75,000. In 2015, Justice F.L. Myers awarded Elmardy $27,000 in compensation, finding police had no legal justification for stopping or punching him. But the judge didn’t agree the misconduct was racially motivated.
For Elmardy, though, that was the crux of his complaint. So he appealed — and won.
In a blistering decision against Toronto Police, the Divisional Court has just tripled Elmardy’s damages to $80,000 and awarded him $20,000 in costs after finding he was carded only because he was a black man.
“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 on behalf of the three-judge panel.
Elmardy “was an innocent man who had fled his country looking for a society in which his rights would be respected. Instead of finding the respect to which he is entitled, he was subjected to humiliating, violent and oppressive behaviour from one of this city’s police officers, all because of the colour of his skin.”
And when questioned about their behaviour, “the police officers were found to have lied to the Court,” she wrote.
The cops testified they had a “hunch” Elmardy was violating his bail and carrying a gun — with no evidence whatsoever. They assumed he must be a guilty criminal, the court said, simply because he was black. “This is the essence of racial profiling.”
And enough is enough.
For breaching his Charter rights, the court decided to substantially increase Elmardy’s award from $9,000 to $50,000 “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. The courts and others have already made statements about the serious, wrongful nature of this type of conduct. Yet it continues to occur.”
The court also increased the punitive damages against the police officer from $18,000 to $25,000 to “punish and deter him for his misconduct” — but acknowledged the police services board will likely pay it for him. Elmardy was also awarded $5,000 for his physical injuries and $20,000 for his legal costs.
Pak was never disciplined and remains on the job. Elmardy had lodged a complaint with the Office of the Independent Police Review Director but an investigation found his complaints couldn’t be substantiated. Given this scathing decision, is he still in the clear?
“The matter has been turned over to Profession
al Standards for investigation,” said police spokesman Meaghan Gray, declining to comment further.
Elmardy could have walked away with his $27,000 two years ago. But the publicity shy man, now a Canadian citizen, was determined to appeal and prove that racism was behind the unlawful detention and beating he suffered that cold winter night.
“In his view it was all about being racially profiled,” said his lawyer Andrew MacDonald. “It was a big letdown for him at the trial. I think now, with what’s happened here, he has really been vindicated and the truth has come out.”
See SUPERIOR COURT OF JUSTICE – ONTARIO’s Justice F.L. Myers J. decision on costs.