Tan-Hung Dinh, now 28, was arrested and charged with possession for the purpose of trafficking after a 2009 sting operation at a Mississauga motel. Police said they found nearly a kilo of cocaine in Mr. Dinh’s car and another two kilos when they searched his house.
Although Mr. Dinh pleaded guilty to trafficking the cocaine found in his car, an Ontario Superior Court Justice ruled on Friday that he will face no jail time, in part because the officers who arrested him and searched his home violated his Charter rights. The judge said the offence would normally result in a sentence of five to eight years.
“The police showed contempt not just for the basic rights of every accused but for the sanctity of a courtroom,” Justice Deena Baltman wrote in giving her reasons for Mr. Dinh’s conditional sentence.
She said the officers’ misbehaviour “strikes at the heart” of justice administration and undermines society’s confidence in police and the courts.
In early September 2009, an undercover police officer arranged to meet Mr. Dinh in a motel room, ostensibly so the officer could buy a large quantity of cocaine. When Mr. Dinh arrived, he was pulled inside the room by several officers and beaten, the judge found.
Mr. Dinh told court that five or six officers punched and kicked him for about two minutes, and that at one point one of them climbed up onto the nightstand and tried to jump on him (he rolled clear). They also interrogated Mr. Dinh without a lawyer and ignored his requests for medical attention, the judge found.
The officers denied using any more force than was necessary to make the arrest.
After finding nearly a kilo of cocaine in Mr. Dinh’s car, several officers searched his house without a warrant, where they found two more kilos, together with an ecstasy-pill press, more than 2,000 grams of ecstasy and assorted drug paraphernalia.
When drug-trafficking charges were subsequently laid, Mr. Dinh sought to have them stayed, on the grounds that his Charter rights had been violated.
“He has always admitted that it was his drugs. This case was never about whether they belonged to him,” Mr. Dinh’s lawyer, Leora Shemesh, said on Friday. “For my client, it was about [the fact that]they violated [his]rights by the way in which they dealt with him.”
Last fall, Judge Baltman ruled that she would not stay the charges, because they were too serious. At the same time, however, she said the evidence found in his home was inadmissible because police had not obtained a search warrant first and subsequently lied about it in court.
The officers said they found the drugs in Mr. Dinh’s home only after obtaining the warrant, a claim the judge said was “designed to mislead the court.”
She concluded that Mr. Dinh’s rights had indeed been disregarded, in three different ways.
First, the level of force used by police in the motel room was “excessive.”
Second, Mr. Dinh was denied access to a lawyer after he had been grabbed and dragged inside the motel room, and it was not clear that statements he made there were given voluntarily. As such, they were deemed inadmissible as evidence.
Third, Peel police had no search warrant when they descended on his house. In some circumstances, a warrantless search is legally permissible, the judge noted, but this one was not.
On Friday, Judge Baltman handed down a conditional sentence of two years less a day, with the first year to be spent under house arrest.
Judge Baltman said she recognizes that police have to exercise discretion in difficult and changing circumstances, but said in this case, the officers’ treatment of Mr. Dinh and their decision to lie under oath was “calculated, deliberate and utterly avoidable.”
Mr. Dinh has been under house arrest for the past two and a half years. He had no criminal record before the offence, has complied with his bail conditions and maintained a job, factors the judge said also played into her decision to issue the conditional sentence.
After a publication ban was lifted in the case Friday afternoon, Peel Police Chief Mike Metcalf announced that an internal inquiry into the actions of the five officers, launched last September by the Professional Standards Bureau, was under way and would continue.
In the meantime, all five remain on active duty, Chief Metcalf said in a news release.