Update: see previous post – April 24, 2015 Warrant Thrown Out Due to Police Misinforming Justice of the Peace, September 30, 2014 Toronto: Drug Squad Officer’s Evidence Thrown Out By Judge
Toronto police committed “egregious wrongful conduct” after they planted loose heroin on the centre console of a drug suspect’s car to create a pretext for searching the vehicle, a judge has found.
In January 2014, Toronto police arrested Nguyen Son Tran in the city’s Chinatown after finding 11 grams of plastic-wrapped heroin tucked behind the steering column of his car. But Ontario Superior Court Judge Edward Morgan ruled last week that officers never had the right to search the car in the first place and the officers knew that, so they scattered a small amount of loose powder in a visible location next to the driver’s seat.
“I conclude from all of 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 said as he stayed the charges against Tran.
Toronto police spokesman Mark Pugash said Thursday an internal investigation is underway by the Professional Standards Unit.
“We take all comments of this type very seriously,” he said. “Whatever action is necessary will be taken.”
Justice Morgan wrote “I conclude from all of this that the loose heroin was placed on the console of the Toyota by the police after their search”
It is unclear if criminal charges are being pursued into the alleged police misconduct. Tran’s lawyer, Kim Schofield said the officers should be charged with obstruction of justice.
The judge’s comments are a black eye for a police force that has been accused of disproportionately targeting visible minorities during street checks, a practice known as “carding.”
Court heard very different accounts of the sequence of events that led to Tran’s arrest.
Tran testified that while sitting at a red light, he noticed Det.-Const. Benjamin Elliot riding in an unmarked police car next to him. Elliot, who is with the major crime unit, had arrested Tran a year earlier for heroin possession and Tran pleaded guilty.
Tran said he pulled into a parking lot and was approached by a uniformed constable, Jeffrey Tout. He claims Tout was on his cell phone and at one point overheard Tout say, “Exactly him.”
Two minutes later, Elliot and his partner, Sgt. Michael Taylor, pulled up and Elliot placed Tran under arrest. The defence theorized that Elliot saw Tran drive by and called Tout to stop Tran until he and his partner could arrive.
But the officers gave a different account.
Tout testified he approached Tran in the parking lot after seeing him go through a red light. As he approached the driver’s window, he said he noticed Tran trying to block the window with his body. He said he saw white powder on the console and proceeded to arrest Tran on suspicion of possessing a controlled substance.
Elliot testified the only reason why he and Taylor showed up was because he heard Tout say over the radio that he had stopped a car and when Tout mentioned the license plate he immediately recognized it from his arrest of Tran a year before.
Taylor’s handwritten notes also indicated that the reason they attended the scene was because they had overheard the license plate on the radio and “Elliot has investigated this before.”
“It is fair to say that Officer Elliot and Sgt. Taylor were caught flatfooted by the recordings of the radio calls” Justice Morgan
Yet, when the defence played the full radio dispatch recordings during cross-examination, the license plate was never mentioned. “It appears I was mistaken,” Elliot said.
Like Elliot, Taylor “had no real explanation at all for the wrong information that the two officers so coincidentally shared,” the judge later wrote, saying it was obvious the two had colluded to come up with a “patently untrue” story for what brought them to the scene.
“It is fair to say that Officer Elliot and Sgt. Taylor were caught flatfooted by the recordings of the radio calls.”
The judge also doubted the police version of how they came to search the vehicle.
If Tran had gone to the trouble of wrapping heroin in plastic and concealing it behind the steering wheel, it is unlikely he would leave loose powder around the car, the judge said. Why wouldn’t he have just swept the powder away with his hand?
Had the officers genuinely seen powder on the console, they would likely have called a forensic analyst to document the crime scene before searching the vehicle. But instead, they called for an analyst after the fact, suggesting a strategy to “cover their own tracks.”
“This police misconduct outweighs the roughly 12 grams of heroin found by the police,” the judge said. “That quantity of drugs is, of course, a serious matter; but the misconduct evidenced here is entirely beyond anything that the courts can accept.”