Judge blasts Toronto police over 'Kafkaesque' traffic stop
A driver was acquitted of failing to provide a breath sample, after an encounter with police a judge described as “truly Kafkaesque.”
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A judge has acquitted a man of failing to provide a breath sample, rebuking Toronto police officers’ “aggressive” and “verbally abusive” conduct following a simple traffic stop, which included telling the man he needed to exit his car because he had come to a “high drug” area.
Calling the encounter, which was captured on the police’s in-car camera system, “truly Kafkaesque,” Ontario Court Justice Sandra Bacchus was also critical of the officers for turning off their microphones during “key seconds.”
Those seconds were just before officers decided to ask the man for a breath sample after repeatedly demanding he exit his vehicle, despite there being no valid reason to do so.
Marcel Blackburn, who is black, was pulled over in December 2015 around 1 a.m. on Reggae Lane, near Eglinton Ave. W. and Oakwood Ave., after he was apparently observed by police making a right turn on a red light without stopping.
Almost immediately, Blackburn was subjected to Officer Manheep Virk banging on his car and demanding he exit his vehicle, while Officer Memhnet Gucbilmez threatened to drag him out through the passenger window because he was not co-operating, the judge found. (Blackburn had said his driver’s side window was broken, but he rolled down the rear driver’s side window and passenger side window.)
At one point, when Blackburn again demanded to know why he was being pulled over, Gucbilmez responded on video: “You came to a high drug laneway. I don’t know if you have guns or weapons on you,” later adding: “Because you blew a red light and come to a laneway where a (sic) high drug transactions, lots of guns and shootings happen in this area.”
Blackburn denied he had any drugs or weapons, and none were ultimately found in his car, Bacchus wrote.
Toronto police spokesman Mark Pugash said in an email: “We will look into the judge's comments. We take such comments very seriously.”
Blackburn’s lawyer, Daniel Rechtshaffen, expressed concern about the impact of the officers’ actions in his client’s case.
“There is an ongoing problem with civilians being reluctant to come forward when they witness violent offences,” he told the Star. “When this is how certain officers treat members of the community, that reluctance is hardly a surprise. This behaviour does permanent damage to the public’s trust in police.”
Throughout the encounter, Blackburn remained calm and respectful, reminding officers that if all he had done was fail to stop at a red light before his right turn, then they should write him a ticket, Bacchus said. He identified himself when asked, and offered his licence and insurance without being prompted.
But even when he tried to do that, the officers immediately questioned his actions.
“It is clear that the defendant tried on a number of occasions to produce documentation for the police even though Officer Virk did not ask for it and did not seem interested in obtaining it,” Bacchus wrote.
“When the defendant tried to reach for documents when requested to do so by Officer (Mariusz) Turkot, he was accused by Officers Virk and Gucbilmez of fidgeting and engaging in suspicious behaviour. Truly Kafkaesque.”
She found that the officers had trampled on his rights by arresting him, finding they had no basis to detain him beyond investigating an alleged Highway Traffic Act violation — turning at the red light without first stopping.
“Every individual is entitled to equal treatment under the law and not be subjected to uneven or heavy handed police tactics based on a stereotypical presumption that all individuals in a certain area must be involved in, or have a connection to, criminal activity in that area,” Bacchus said.
“It does not matter if the person being investigated is in a neighbourhood considered to be affluent and crime-free or an area considered to be high crime.”
Bacchus also expressed concern that the officers’ microphones were turned off just before Virk and Gucbilmez asked Blackburn for an alcohol-related breath demand. She wrote that the two can be seen walking off camera separately with Officer Mariusz Turkot, who had arrived as backup, and a man’s voice can be heard saying “Turn your microphone off.”
When Virk and Gucbilmez then return to Blackburn’s car, they say they can smell alcohol — the first time, Bacchus wrote, that they have said this since arriving on scene.
“The defendant’s window remained closed. Yet inexplicably, Officer Virk now professed an ability to detect alcohol from the defendant’s breath,” Bacchus wrote. “The first time Officer Virk made mention of smelling alcohol was after her off camera discussion with Officer Turkot.”
Bacchus especially took issue with Virk’s overall testimony, saying her evidence was “materially inconsistent, embellished and appeared to be contrived at times. Key parts of her testimony appear at odds with other reliable evidence such as the events captured on the in-car camera.”
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