Ottawa's first Indigenous peoples court to be announced Friday
An Ottawa police officer violated several sections of the Charter of Rights and Freedoms during a 2015 arrest in which he punched a handcuffed teenager in the face, a judge ruled this week.
In a decision released Tuesday, Justice Julie Bourgeois found Mohamed Hamed not guilty of all charges he had been facing after his arrest on Aug. 31, 2015, near the intersection of Baseline Road and Woodroffe Avenue in west Ottawa.
Hamed, then 19, and the arresting officer, Const. Nikolas Boldirev, gave two different versions of what happened that day, according to the decision.
Boldirev, who has more than 16 years' experience as a military and Ottawa police officer, testified he saw Hamed's vehicle make an abrupt lane change without signalling. He said he pulled the car over, asked for Hamed's license and other documents, and then noticed a "pungent" marijuana odour coming from inside the vehicle.
When he stuck his head inside, Boldirev said, he saw a few flakes of marijuana on the floor. He arrested Hamed and handcuffed his hands behind his back, putting him in his cruiser after Hamed resisted by "physically tensing and becoming rigid," according to the ruling.
The officer said Hamed's body was in the cruiser, but his legs and feet were not. Boldirev said Hamed was trying to get up and, thinking he was trying to escape, the officer "issued two distractionary strikes to the head, face or neck area," according to the decision.
Hamed then got in the cruiser. When he was being cross-examined, Boldirev said he hit Hamed as hard as he could — a 10 on a scale of one to 10.
Accused says he was scared
Boldirev then searched the vehicle and found marijuana in a backpack and counterfeit money in Hamed's wallet.
Hamed was read his rights at 2:05 a.m., about 11 minutes after he was arrested, and said he wanted to talk to a lawyer.
"The officer testified that for as long as he has been a police officer, he has never heard of, seen it or himself never allowed a detainee to contact a lawyer at the roadside," Bourgeois's decision said.
Hamed was released after Boldirev found there was no warrant for his arrest and there was nothing about him in the police database. He was charged for having marijuana and counterfeit money, plus resisting arrest.
Hamed told the court, however, that he didn't think he had made an illegal lane change and the officer wasn't telling him why he was being placed under arrest.
He said the officer's actions made him scared, and he became upset and angry as he was put into the cruiser.
Hamed testified that when he asked why Boldirev was treating him like that and why he had assaulted him, Boldirev responded "You think that's an assault? This is not an assault."
Boldirev then punched him twice in the face, leaving him dazed, Hamed said.
Hamed also said the counterfeit money was given to him during a recent sale of a dirt bike and he had no intention of using it.
In her ruling, Bourgeois wrote that she found problems with Boldirev's credibility compared to Hamed's "truthful, genuine, logical and consistent" evidence.
"The ring of truth to [Const.] Boldirev's testimony is not resounding loud enough for the court to hear it," she said.
The justice said she couldn't accept the officer's evidence that Hamed veered or swerved before he was pulled over, adding that Boldirev lacked the grounds to make the stop under the section of the Highway Traffic Act he cited.
She also found issues with his testimony that he didn't notice the strong smell of marijuana right away, saying that if it was as strong as he said it was, he certainly should have.
Those credibility concerns led Bourgeois to find Hamed's arrest unlawful, making the warrantless search of his vehicle a violation of sections 8 and 9 of the charter and therefore unlawful as well. The two sections protect against unreasonable searches and arbitrary detainments.
She ruled Hamed's charter rights were also violated when he wasn't told why he was being arrested and wasn't allowed to talk to a lawyer until well after he was handcuffed and searched.
"The impact of the breaches on the Charter-protected interest of Mr. Hamed is also very serious," she wrote.
As for the punches, Bourgeois ruled they displayed excessive force, calling them "completely contrary to the principles of proportionality, necessity and reasonableness" as the chances of Hamed escaping were extremely small.
"That Mr. Hamed was not seriously injured seems to be pure luck," she wrote.
"But that the officer did not even inquire if he required medical attention after testifying that he administered these two punches to the head or facial area with full force, 10 out of 10 on the scale of force, is mind-boggling."
Hamed's lawyer Leo Russomanno told CBC News that "virtually all" of his client's rights were violated during the arrest.
"From the very beginning, the stop — being really based on a false premise — was an arbitrary stop, an arbitrary arrest and detention," Russomanno said in an interview.
OPS reviewing decision
In an email, Ottawa police Chief Charles Bordeleau said he's not commenting on the decision because it's being reviewed "to determine what action should be taken."
"I think it is important to put any single case into context," Bordeleau said.
"Our members are professional and take pride in their work, including those working the frontline and in our investigative units. They successfully take cases to trial and have been credited for excellent work by many, including the judiciary."
Bordeleau said Ottawa police started a pilot project last week that puts an assistant crown attorney at their Elgin Street headquarters to, in part, identify training opportunities and needs and find alternatives to formal arrests and charges.