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Ontario judge throws out armed robbery charge over police misconduct

The right to silence deserves court protection, a judge said in throwing out a charge of armed robbery, after two York Region Police officers attempted to beat a confession out of a suspect.

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A suspect's right to silence deserves court protection, a judge said in throwing out a charge of armed robbery, after two York Region Police officers attempted to beat a confession out of a suspect.

"I thought this only happened in movies," the accused man, Gil Kim, testified. He told the judge he had, in fact, committed the armed robbery.

The case is one of several in the Greater Toronto Area this decade in which judges have thrown out serious charges over police misconduct – including a conspiracy to commit home invasions in Peel Region, west of Toronto, involving a beating so severe it caused permanent injury, and a case of police being deliberately misleading in a cocaine trafficking case in Toronto.

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Two men accused in a May, 2012, robbery of a Rogers Plus store in Markham, north of Toronto, had given Mr. Kim up to police. Arrested and taken to a police station, Mr. Kim spoke to duty counsel, a free legal service, by phone, and was advised to remain silent. But an officer told him: Confess or be beaten. When he insisted on his right to silence, he was punched in the head and face, had his head slammed against a wall, was kicked in the shins and struck with his own shoe, he testified.

"An individual who receives legal advice and wishes to invoke their right to silence should be respected," Ontario Superior Court Justice Cory Gilmore ruled late last month, in a decision that has just come to light. "I find that the police conduct in this case brings the integrity of law enforcement into disrepute and offends society's sense of justice."

A spokesman for York Region Police said Tuesday that a Crown attorney informed Chief Eric Jolliffe of the incident on Aug. 28, and the chief has since initiated a complaint against the officers under the Police Services Act, to be carried out by York's professional standards bureau. Potential consequences range from loss of hours or demotion to termination. He also asked Peel Regional Police to conduct an independent investigation of the incident, and forwarded it a copy of Justice Gilmore's ruling, spokesman Andy Pattenden said.

The officers involved denied using violence in their dealings with Mr. Kim. Justice Gilmore found they had beaten him on a "balance of probabilities" – just over a 50-per-cent chance, which is lower than the criminal standard of beyond a reasonable doubt.

Because the beating had not caused permanent injury, Justice Gilmore said she might have found some other way of dealing with the police abuse, such as a reduction of sentence, except for something that made it even worse – police had positioned Mr. Kim for the interview in the wrong seat, so that he would face away from the video camera, where his facial bruising and the blood on his shirt could not be seen. His two co-accused were facing the camera and in the proper seat when they were interviewed.

"The officers' conduct affronts decency and fair play," Justice Gilmore, who was appointed by the Conservative government in 2008, wrote in a 30-page ruling, released Aug. 24. "Not granting a stay may send a message to the public that this court implicitly condones such behaviour. That cannot be the case."

David Bayliss, a Toronto lawyer representing Mr. Kim, said he doesn't think the ruling will have an impact on police behaviour. In practice, police officers who attempt to mislead courts or who abuse suspects seldom face disciplinary action, because they are judged by other police, he said in an interview.

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He wants to see a provincial civilian body investigate police misconduct cases after court rulings, as recommended by Ontario Court of Appeal Justice Michael Tulloch.

"I just don't think this case will change anything," he said.

The prosecution called seven witnesses, all from York Region Police, including the two officers Mr. Kim said had beaten him, who said they had done or seen nothing untoward. But the judge believed Mr. Kim, based on a blood-stained shirt, determined to be his blood, facial bruising witnessed by his parents and sister (though they did not take photos) and the unusual and unexplained positioning of Mr. Kim in the interview room.

Legal counsel for Mr. Kim applied for disclosure of police video without specifying cell-area video until just over a year later, at which point police said they had taped over the video. York's policy is to keep such video for a year.

The thieves took $7,000 in cash and $80,000 in cellphones. A video shows Mr. Kim, according to Justice Gilmore, disguised and holding something handgun-shaped, while store employees load phones and cash from a safe into a duffel bag.

Both officers, Detectives Alec Tompras, who had been with the force for 13 years at the time of the arrest, and David Noseworthy, a 22-year veteran, denied beating Mr. Kim. Det. Tompras described himself as "by the book," but Justice Gilmore listed six ways in which he had violated policies, such as recording the precise time of 17:09 for a traffic stop, several hours later.

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