NEWS > 25 November 2006

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Globe and Mail - Canada
25 November 2006

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Judge sternly dresses down Pee

An Ontario man was illegally stopped by a group of overzealous Peel Regional Police officers and then subjected to a breathtaking stream of constitutional abuses, an Ontario Superior Court judge has ruled.

Mr. Justice John Murray threw out the evidence police seized after searching Jihad Waterman's car, describing the stop and search as a "willful, flagrant and serious" violation of Mr. Waterman's rights.

"The abuse of authority and the disregard for Charter rights it demonstrates is remarkable," Judge Murray said. "While in some circumstances, the exclusion of critical evidence weighs in favour of admission, the high-handed and arbitrary conduct of the police in this case cannot be condoned."

Judge Murray added that while there were hallmarks of racial profiling present in the case (Mr. Waterman is black), he was not prepared to reach a firm conclusion.

"I do observe, however, that it is in cases such as this that police may face allegations of racial profiling which, in light of their conduct, may have the ring of truth," he added.

The evidence Judge Murray threw out had formed the basis for a charge of mortgage fraud that was laid later against Mr. Waterman.

Mr. Waterman was stopped on the afternoon of Feb. 1, 2003, as he drove through Mississauga in a car that belonged to his company -- Royal Platinum Auto Corporation. Constable Kevin Diachina later said that Mr. Waterman was not wearing a seatbelt, was speeding and was making an unsafe lane change -- allegations that Judge Murray concluded were fabricated pretexts to justify the police having acted on nothing more than a hunch.

After Mr. Waterman pulled over, Constable Diachina spotted a computer case, a plastic bag containing mail, two cellphones, a box of cheques and a Visa card. He became suspicious and ran a check, discovering that Mr. Waterman had outstanding charges of uttering forged documents and fraud.

"The search of Mr. Waterman was a fishing expedition based on irrelevant or discriminatory factors," Judge Murray said. "In other words, the search of Mr. Waterman is exactly the kind of search that the police are not to conduct and that the courts have been cautioned to prevent. Constable Diachina had no idea -- just a lot of suspicion roiling about in his mind, leaving him uncertain about anything except that Mr. Waterman was engaged in criminal activity."

As more officers arrived at the roadside scene, they cajoled and threatened Mr. Waterman with arrest to try and get him to leave his car. Mr. Waterman agreed only to roll down his window part way. He said police had no valid reason to stop him, and he was afraid he would be beaten. "The applicant stated that he had been beaten up before and he didn't want to be beaten up again," Judge Murray noted.

Throughout the drama, Mr. Waterman recorded his interchanges with police on a cassette recorder he happened to have with him. At several points, Mr. Waterman could be heard asking their reasons for detaining him. The responses varied from allegations that Mr. Waterman was causing a disturbance or obstructing police, to a curious statement involving Mr. Waterman "not being in a territorial jurisdiction with the Peel Regional Police."

At one point, Constable Diachina threatened to "smash the window and drag you out [of the car]. If you make things difficult, we will make things difficult."

Mr. Waterman finally emerged. He alleged that he was promptly punched and had his face pushed into his car. Mr. Waterman said that he was assaulted several times in the back of the police cruiser and at the police station.

"These very serious allegations of assault are denied by the police," Judge Murray noted.

"The wholesale disregard for the requirement of reasonable and probable grounds as a condition precedent to arrest is graphically demonstrated by the array of threats and charges that were used by the police in this case to justify the unconstitutional and arbitrary use of police power," he concluded.

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Article sourced from

Globe and Mail - Canada25 November 2006

Judge sternly dresses down Pee

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Globe and Mail - Canada
25 November 2006