A police officer sees a black man walking down the street, in the dark, in a rough neighbourhood. No, this is not the setup to some bad punchline.

It’s a cold night. The man is shuffling along, hands in his pockets. The police officer, having no current reason to believe the man has done anything wrong, decides to “card” him. This is police parlance for stopping the man (with no probable cause), asking him his name and other personal details and writing it down on a card for future reference.

As of today, carding is legal. The underlying rationale behind carding is: you aren’t doing anything bad at this moment, black man, but you will. And, we’ll be able to solve the crime because we have information about you.

Here’s a hypothetical encounter between the police officer and the man:

Police Officer: “Hey, hold up for a minute. Stop.”

Black Man: “What the f**k do you want?”

Police Officer: “Let me see your ID.”

Black Man: “Why?”

Police Officer: “Where are you going?”

Black Man: “Home. I just came from prayers.”

Police Officer: “What’s your name?”

Black Man: “Am I under arrest?”

Police Officer: “Take your hands out of your pockets. Do you have a weapon?”

Black Man: “No, it’s cold out.”

Police Officer pulls out his handcuffs.

Police Officer: “Turn around.”

Black Man: “What are… why are you arresting me?”

Police Officer: “Don’t struggle.”

Black Man: “You’re hurting me.”

Police Officer: “On the ground! Don’t struggle!”

Black Man: “What are you doing?!?!”

The Police Officer punches the Black Man several times. He eventually subdues the Black Man.

Sounds like something that happens only in America, right? Wrong. Although we don’t know the precise details (because of conflicting he said, he said), Justice F.L. Myers recently ruled something like that happened to Mutaz Elmardy in Toronto in 2011. Elmardy was walking home from his mosque. It was very cold outside. Constable Andrew Pak stopped Elmardy with no probable cause. Elmardy was rude to the constable. The encounter escalated to the point where Elmardy met the business end of the constable’s fist.

Studies show that a black man is three times more likely to be stopped in Toronto than a white man. In a terrific Toronto Life story called “The Skin I’m In: I’ve been interrogated by police more than 50 times—all because I’m black”, Desmond Cole recalls his many racially motivated encounters with the police. Desmond is an educated black man with no criminal history who was once told by an officer during a random stop that Desmond should always carry ID with him in order to prove to police that he isn’t a criminal.

WTF? Are police trained to spew bulls**t like that? Guilty until proven innocent? In Canada?

Here’s the thing about Elmardy: he did nothing wrong (other than getting lippy) and ended up punched in the face and humiliated. He decided to fight back — legally. It takes a lot of guts to sue the police, but Elmardy brought a lawsuit against his assailant—and won!

Justice Myers boiled the case down to this: the police had no legal justification to stop Elmardy. When they did, and Elmardy was rude, “Constable Pak took the law into his own hands and administered some street justice.”

By the way, Constable Pak denied hitting Mr. Elmardy despite abundant medical evidence that led the judge to conclude Pak punched Elmardy at least twice. Constable Pak’s partner, Constable Poole, somehow failed to see any punches despite being in the immediate vicinity.

My young son might say, “Liar, liar, pants on fire…”

Put to the test on the witness stand, the police did their best to justify detaining Elmardy, trying to make their actions look reasonable. First, when a suspect acts belligerently towards them, the police take that as a sign the suspect is doing something wrong.

I can understand that. What else could belligerence possibly signify? I mean, it just makes sense that when a black man gets angry at the police the only explanation is he’s trying to hide a crime, right?

Thankfully, Justice Myers rejected this tenuous conclusion and deemed it no justification to detain a suspect.

The police also argued because Elmardy had his hands in his pockets, they believed he had a weapon. That’s a plausible conclusion. Preventing frostbite in -10C temperatures is probably more plausible.

Once again the judge was not convinced of the nexus between the premise (hands in pocket) and the conclusion (equals knife in the pocket) and rejected the cops’ loopy logic.

The judge concluded:

For the reasons that follow, I find that Mr. Elmardy has proven much of his case on a balance of probabilities. Constable Pak committed battery on Mr. Elmardy. Constable Pak violated Mr. Elmardy’s constitutional right to be secure from arbitrary detention. He violated Mr. Elmardy’s constitutional right to be secure from unreasonable search and seizure. He violated Mr. Elmardy’s rights under ss.10 (a) and (b) of the Charter that arose upon his detention. In all, Mr. Elmardy is entitled to damages to compensate him for his injuries and to deter similar incidents in future. He is also entitled to declarations that his rights were violated to make clear statements by the court vindicating Mr. Elmardy’s rights.

There are only eight “Legal Rights” enshrined in the Charter. The police managed to violate three of them, plus throw in a battery for good measure, in what should have been a quick, casual encounter.

The judge summed up his view of the law, and Constable Pak’s egregious behaviour, when discussing an award of punitive damages:

For the intentional torts of battery and false arrest, in my view, a punitive damages award is appropriate to express the disapproval of the court at the deliberate and inappropriate conduct of Constable Pak. As for the Charter breaches, administering street justice is the opposite of a society based on laws. 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 appears that none of Constable Pak, Constable Poole, or the other four officers who dropped by the scene knew this. It is therefore important for [Toronto Police Services] 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 manner in which the officers testified in 2015 was no less shocking. In view of the contumelious disregard shown by Constable Pak and TPS for the rights of Mr. Elmardy, in my view he is entitled to punitive damages equal to twice his aggregate award so as to triple his recovery. Therefore I award punitive damages of $18,000.

Justice Myers wrote that paragraph about punitive damages very politely, but it’s about as harsh as I’ve ever seen a judge towards the cops. He used the word “contumelious,” for gosh sakes. I had to look it up. It’s an adverb that means abusive and humiliating. In essence, his judgement can be summed up in one sentence IMHO: You police acted terribly and illegally in 2011 and you lied about it to me in 2015.

As I understand it, the courts rarely award punitive damages in Ontario.

The takeaways from this judgement are clear: in a casual encounter with the police (like Walking While Black), you don’t have any obligation to speak to the police. You are entitled to ask, “Am I being detained?” If the answer is no, you are perfectly justified in saying, “Have a nice day” and carrying on with your lawful business.

Justice Myers got one right for the underdog.

Does anybody have a problem with that in a free and democratic society?

That’s the View From Up North. Have a great week.

Elmardy v. Toronto Police Services Board [Ontario Superior Court of Justice]

Steve Dykstra is a Canadian-trained lawyer and legal recruiter. He is the President of Keybridge Legal Recruiting, a boutique recruitment firm that places lawyers in law firms and in-house roles throughout North America. You can contact Steve at steve@keybridgerecruiting.com. You can also read his blog at stevendykstra.wordpress.com, follow him on Twitter (@IMRecruitR), or connect on LinkedIn (ca.linkedin.com/in/stevedykstra/).