There was no video or audiotape and no witnesses – except police officers. Just one man's word that a Toronto police officer punched him in the eye and mouth when he wouldn't take his hands out of his pockets during the controversial practice known as "carding."
But a judge believed the man, a Sudanese refugee, and awarded him $27,000 in damages, in ruling that carding can be highly abusive. The city's new police chief, Mark Saunders, has vowed to continue the practice in which police gather information by stopping members of the public who are not suspected of a crime. Visible-minority groups have criticized carding, saying it often amounts to racial profiling.
Mutaz Elmardy, then 38, was walking home from evening prayers at a mosque on a frigid January evening in 2011 when a police car pulled up alongside him, on Parliament Street in downtown Toronto.
When Mr. Elmardy responded with hostility to being stopped and questioned, police concluded – according to their own testimony – that he must have something to hide. They ordered him to take his hands out of his pockets, fearing he had a knife. It was –10 C, and he refused.
Constable Andrew Pak then punched him twice in the face and kicked him several times before handcuffing him, Mr. Elmardy testified in his lawsuit against the officer and the Toronto Police Services Board. No knife was found on him.
"Administering street justice is the opposite of a society based on laws," Justice Frederick Myers of the Ontario Superior Court of Justice wrote in awarding damages to Mr. Elmardy.
"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 subzero temperatures, or assaulted."
Constable Pak denied committing any acts of violence, while his partner, Detective Constable Candice Poole, testified that she wasn't looking, leading a skeptical judge to conclude that the beating probably happened. Mr. Elmardy, who had been in Canada for six years, went straight to a police station to complain, even asking Constable Pak to drive him. Mr. Elmardy also had supporting evidence from a doctor at a hospital he went to that night, and photographs of swelling on his face.
"When people are at their most vulnerable, that's when they need the protection of the law the most," Andrew MacDonald, a lawyer who represented Mr. Elmardy, said in an interview. Mr. Elmardy could not be reached for comment.
Carding refers to the filling out of a police form known as a "208 card," which details contacts between the police and members of the public. Constable Pak testified that he tries to fill out as many 208 cards as he can to prove he is interacting with people as his job requires. He and Constable Poole said they receive credit from their superiors for carding. Constable Pak also testified that Mr. Elmardy had been "blading" – standing at an angle to him, which he said is a technique to conceal a weapon.
Justice Myers said there was no evidence that police stopped Mr. Elmardy because of his skin colour. The judge said he would not express an opinion about whether carding is constitutional, useful or a source of hostility between the police and public. He awarded Mr. Elmardy $18,000 in punitive damages on top of damages for the assault and breaches of his constitutional rights.