Pubdate: Sat, 08 Oct 2016
Source: Toronto Star (CN ON)
Copyright: 2016 The Toronto Star
Author: Jacques Gallant
Page: GT1


Judge who acquitted Nosakhare Ohenen says case raises 'serious
prospect' that police planted drugs on him

In 2010, a judge ruled that Nosakhare Ohenhen's version of events
detailing his arrest, including the allegation that Toronto police
planted drugs on him, to be a "fabrication" and "totally

He was convicted on a number of drug and firearm offences, as well as
for resisting arrest and assaulting a police officer. He was sentenced
to nine years in prison, with credit for time spent in custody since
his 2008 arrest.

After having completed his sentence, the Ontario Court of Appeal
ordered a new trial in 2015, finding the judge made errors in
assessing Ohenhen's credibility.

And then last month, following the conclusion of that second trial, a
different judge ruled that he largely accepted Ohenhen's evidence,
that the police officers' testimony at the retrial was "troubling,"
and that Ohenhen's rights to not be arbitrarily detained and
unreasonably searched, as well as his right to a lawyer, were "totally
and shockingly ignored by the police."

Three years after he was released from prison, Ohenhen was acquitted
of all charges - the very same charges for which he spent nearly six
years behind bars.

"I actually shed a tear in the courtroom, I didn't think anything like
this was possible," Ohenhen, 36, told the Star. "After the first
trial, I was destroyed, because I was expecting I was going to go home."

Most importantly for Ohenhen, Superior Court Justice Michael Quigley
found that the case also raises the "serious prospect" that police
planted drugs on him.

"Despite the evidential factors that point in that direction, I remain
uncertain of whether that actually occurred, though it certainly
remains distinctly possible and arguably probable on the evidence,"
Quigley said.

In prison, Ohenhen said he was subjected to fights, riots and
lockdowns. He was stabbed several times, and has a scar on his left
hand to prove it. "I'll never get those years back," he said. Ohenhen
was finally released from prison to a halfway house in December 2013.
He now lives with his girlfriend, and wants to get on with his life by
starting a family and a record label.

A big reason for the delay in getting his appeal heard was the fact
that the court reporter from his first trial had retired and the
recording could not be located.

"I kept calling from prison, wondering when the appeal would happen. I
waited a whole year," Ohenhen said. "Then two years. Gone. Three
years. Gone." His appeal lawyer, Anthony Moustacalis, explained that
under the previous system for court recording, the court reporter who
worked on the trial was the only person who could certify the
transcript for the appeal. He said it took years to track down the
reporter and the recording. (Under the new system, any certified
transcriptionist can access a court recording at the courthouse and
certify the transcript.)

Even though he had already served his sentence when the appeal was
finally ready to be heard in 2015, Ohenhen said he wanted to go ahead
with it, to clear his name. "I just can't forget about it," he said.
Toronto police's professional standards unit is now investigating the
matter, said police spokesman Mark Pugash.

"We are pleased with the decision of the court," said Ohenhen's lawyer
for the second trial, Luc Leclair.

"At the end of the day, justice and the rule of law

Ohenhen, then 28, was arrested near Parkdale Collegiate Institute on
Aug. 21, 2008, according to Quigley's ruling from the retrial. Two
officers had varying stories over why he was pulled over - one said
because he didn't have his seatbelt on, the other because of loud music.

But the judge said Ohenhen's version was "much more likely," that he
had parked his green Jaguar in a parking lot and was walking toward a
friend's house when he encountered the police at the entrance to the
lot, asking for his identification.

"The officers' evidence about carding practices in Toronto and the
plain and legitimate concerns about racial stereotyping raises the
concern that Mr. Ohenhen was pulled over at least in part because he
was a black man driving an expensive car," Quigley wrote.

Const. Kyle Mildenberger testified he saw a bulge at Ohenhen's waist
and lifted up his jersey, believing it was a firearm, but it turned
out to just be Ohenhen's belt buckle. He claimed that he only touched
the belt area, but the judge noted that the booking video from the
police station "plainly shows that the jersey worn by Mr. Ohenhen has
been grabbed and stretched and torn in the upper chest area."

In the process, Const. Adam Landry had radioed for information on the
owner of the Jaguar. Ohenhen, who did own the vehicle, testified that
he knew the broadcast would have also identified him as an individual
with a criminal past and to be approached cautiously.

According to Quigley's ruling, Ohenhen had an "extensive and varied"
criminal record that involves drug trafficking offences and firearms
possession. He "plainly admitted" to dealing drugs, Quigley said.

"I didn't pull the wool over anyone's eyes," he told the

"I wanted the system to know I was being honest here. It happened.
Growing up in Parkdale, when I was younger, I had problems. I'm not an

As he heard the radio broadcast to Landry, Ohenhen

"Mr. Ohenhen said he ran because he knew the officer was not going to
let him go after hearing that broadcast," Quigley wrote. "The officer
was aggressive and had pulled his shirt when he told him he could not
leave until permitted to do so. The officer gave him no reason why he
was being detained or why he had been stopped." He was soon
apprehended and brought face first to the ground. He testified he
heard an officer say "We'll think of something."

About a half-hour prior to Ohenhen's arrest, Const. Scott Tait and
Const. Craig Westell had stopped a man nearby and confiscated crack
cocaine and marijuana from him.

Westell testified that he put the drugs in his left breast

They arrived at the scene of Ohenhen's arrest to find three officers
trying to subdue him. Police said they conducted a pat-down search and
said they found a baggy of drugs and a wad of money.

Ohenhen's car was also searched, even though it was admitted in court
that police didn't have a warrant.

Inside the car - which the judge found had been illegally searched -
police said they discovered a fully loaded handgun.

Ohenhen was put in the back of a squad car, but officers waited 25
minutes to take him to the station.

"All of them claimed to have no idea why they waited 25 minutes to
transport or what they were talking about during that hiatus," Quigley
wrote. "I find the more likely explanation was to start to get their
stories straight before the accused was paraded before the sergeant
and booked."

At the police division, Ohenhen was subjected to a strip search.
Afterward, the officers brought Ohenhen before the sergeant and said
they had found cocaine and marijuana. On the booking video, Westell
can be seen pulling a baggy from his breast pocket, which he said were
the drugs found on Ohenhen.

The judge noted that it was the same pocket in which Westell had
placed the drugs he confiscated from the young person prior to
Ohenhen's arrest.

"As such, it is very troubling and raises the serious prospect that
the drugs allegedly seized during that search (of Ohenhen) were
actually the drugs previously seized by P.C.'s Tait and Westell from
the young person, less than an hour before the arrest and alleged
finding of drugs on Mr. Ohenhen's person," Quigley wrote.

Criminal defence lawyer Daniel Brown, who was not involved in the
case, said Quigley's ruling touches on problems that have been
connected to Toronto police in the past.

"We have constitutional protections that prevent all of us from being
stopped and searched and we have those protections because it
disproportionately affects the most vulnerable members of our society,
and this is one clear example of a person, from a racial minority
group, who was being targeted for no apparent reason," Brown said.

"It harms our confidence in the Toronto Police Service when officers
get away with this type of egregious conduct, and it will continue to
undermine our confidence in the police moving forward if nothing is
done about it."
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