By TOM GODFREY
A Sudanese refugee who fled to Canada to escape repression has been awarded $27,000 in damages by an Ontario court after he was assaulted by a Toronto cop in a carding incident that occurred as he left prayer service at a mosque.
Mutaz Elmardy, 38, was carded by a police officer in January 2011 at Moss Park, in the Regent Park area, as he was on his way home from evening prayers in January 2011, according to court documents.
Elmardy said that when he refused to respond to the police since he was not doing anything wrong he was punched twice in the face by one of the officers who also kicked him after he fell to the ground.
After he was allowed to leave without any charges being laid, he asked for and was denied a ride to the police station to lay a complaint. He said he was forced to walk to 51 Division, where he filed a complaint against the police. He then filed a successful lawsuit against his attacker Const. Andrew Pak and the Toronto Police Services Board.
Ontario Superior Court Justice Frederick Myers agreed with Elmardy in a decision on May 7 that said Pak “took the law into his own hands and administered some street justice”.
Elmardy was initially seeking $75,000 in damages for the assault, that Myers said consisted of two punches in the face, a swollen cheek, a cut lip and minor knee injuries.
Myers, in a written decision, said Elmardy was “subjected to an unlawful arrest and search, an assault by Pak and then left handcuffed outside in -10C weather with an unzipped jacket and no gloves for up to 25 minutes, for no apparent reason”.
Court heard that Elmardy came to Canada as a refugee claimant in 2005 because he believed he would have rights here like everyone else and “to feel the law”.
He was walking on Shuter St., near Parliament St., when Pak, who was driving in the opposite direction, turned around his cruiser and approached him. Pak’s female partner remained in the car and at one point they were joined by four other officers.
Pak, who was then assigned to the Toronto Anti-Violence Intervention Strategy team, known as TAVIS, testified he stopped Elmardy because he was staring at his cruiser as it drove by.
The officer thought he should speak to Elmardy and run his name through the police computer because of a “hunch” that he might have bail or other conditional sentence issues, Myers wrote.
Court heard that TAVIS is responsible for self-generating work, including investigating, talking to people, showing a presence in the community and carding people in high-risk areas.
Pak, in shocking testimony, said that he tried to fill out as many cards, known then as 208s, as he could, to show he was interacting with people as required in his position, according to the ruling.
Myers said his decision made no findings on the constitutionality or wisdom of carding.
“Whether carding is a useful policing policy or just serves to increase the risk of hostile interactions between police and innocent members of the public, as appears to have occurred in this case, is beyond my ken,” he wrote.
Myers said Elmardy claimed to “have been humiliated and now distrusts police.
“The law applies to him as a refugee permanent resident just as much as to anyone,” the judge said. “I was moved by Mr. Elmardy’s expression that he came here to ‘feel the law’.”
Myers said “one has to experience corrupt government and lawlessness to consciously feel the well-being that comes merely from being present in a country in which the rule of law matters and all are equal”.
He said one who is not being investigated for criminality is allowed to walk down the street on a cold night with his or her hands in the pockets and to tell inquisitive police officers to get lost without being detained, searched, exposed to sub-zero temperatures, or assaulted.
“It is important for TPS and Constable Pak to hear it from the court and to hear it in a manner that bespeaks the court’s disapproval and shock that such conduct might be considered acceptable in 2011,” the judge wrote. “The manner in which the officers testified in 2015 was no less shocking.”
He said Elmardy’s rights were treated in a “contumelious disregard” by Pak and Toronto Police Service.