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| Said Jama Jama, 21 at the time, says he was beaten up by police outside a doughnut shop in August, 2003. |
Tape of assault persuasive evidence.
Judge criticizes police testimony, notes
BETSY POWELL
CRIME REPORTER
An amateur videotape turned the tables on a Toronto police officer found guilty yesterday of punching a 22-year-old man in the face during an August 2003 pre-dawn fracas outside a coffee shop in Rexdale.
Ontario Court Justice Peter Wilkie concluded Const. Roy Preston had assaulted Said Jama Jama, who was originally charged with assaulting a police officer after the incident on Caribana weekend two years ago.
"I'm glad that the judge believed my words," the Somalia-born Jama Jama said after Wilkie read his judgment in a Brampton courtroom. "If I didn't have the video then things would be in a different situation."
If convicted of a criminal offence, landed immigrants can face deportation.
However, Jama Jama said he was "very disappointed" that after waiting two years for a verdict he was unable to be in the court when it was handed down. "They closed the door in my face." The small courtroom was packed with police officers, many from Preston's 23 Division in Etobicoke.
The judge said the case came down to the issue of whether Preston used excessive force on Aug. 4, 2003, as well as the credibility of both the officer and Jama Jama.
But most of all it was what the videotape showed that was most persuasive evidence, Wilkie said, calling it "an unusual but key feature" in the Crown's case that played over and over again — often in slow motion — during the spring trial.
The encounter between Preston and Jama Jama lasted no longer than 11 seconds in the 3 1/2-minute video. "Jama Jama's account did not differ materially from the video," Wilkie said, while Preston's version most certainly did. A tourist from Ottawa was standing in the open sunroof of a car in a coffee shop parking lot in the Albion Rd. and Highway 27 area when he shot the scene that unfolded.
Preston had pleaded not guilty. His defence lawyer, J.J. Burke, had argued his client was justified in punching Jama Jama because the man had struck out at Preston with both arms, hitting him in the chest. Wilkie rejected the claim, but in his ruling noted "after-the-fact assessments" must take into account that police work is often "difficult, dangerous" and performed in "chaotic circumstances."
It's rare that an on-duty Toronto police officer is found guilty of a criminal offence. Burke declined to comment on the verdict but did say that an appeal would be "something we take under advisement." Preston was whisked from the courtroom and out a back door, avoiding reporters and cameras.
Wilkie was dismayed to learn later that Jama Jama was not in the court for the verdict, said a source.
In his ruling, the judge found Preston to be "neither credible nor reliable" and said his testimony and notes did "not stand up to scrutiny" and were designed to "obscure and misrepresent."
"What emerges is the defendant was prepared to withhold and make false statements to deflect attention away from himself and his fellow officers," Wilkie said, reading his ruling aloud.
He also took to task Preston's three on-duty colleagues that night for providing testimony in court that was "vague," "contradictory" and "fundamentally unreliable." The judge said he also accepted Jama Jama's claim of what happened after the punch (it happened off camera), that Preston and the other officers chased him across Albion Rd. and beat him while arresting and charging him. He returned to the scene the next day and recovered his tooth, court heard.
Wilkie called Jama Jama an "honest and reliable witness." Preston, who joined the force in 2001, was charged by Toronto police with assault last summer after the tape surfaced. The Crown dropped the assault police charge against Jama Jama after watching it.
Throughout his ruling, Wilkie referred to the videotape, noting:
- At the outset Jama Jama's face does not appear to be swollen and bleeding and his white T-shirt was neither soiled nor bloodstained, as it was after his arrest. The defence claimed Jama Jama got his injuries in earlier fights that evening. Jama Jama denied any earlier scraps and said he was injury-free until crossing paths with Preston and his colleagues who beat him up during his arrest. While a second or two of the encounter was obscured, Wilkie dismissed the defence's contention that Jama Jama had an aggressive stance, noting he was "standing still" with his "arms down ... and palms open" and that he had nothing in his hand. The tape showed him to be "submissive and passive," the judge said.
- Preston is shown in the videotape coming at Jama Jama "hard and aggressively," and at "no point does the defendant appear to be off-balance," which the defence had contended had prompted his justifiable "defensive reaction."
Wilkie said Preston's integrity as a witness was further undermined by what "did not appear in his notes" — such as the punch. As well, he found the testimony of his three fellow officers wanting because while they all agreed Preston wasn't involved in the arrest, "they couldn't agree on who was." Nor could any of the officers' version account for how the small-framed man got his injuries.
An assault conviction carries a maximum sentence of five years in prison.
Sentencing has been deferred and Crown attorney Joan Barrett said she wants to prepare a victim impact statement. She also declined to comment after the verdict was read.
While Preston remains on active duty, he also faces two internal discipline charges; one of unnecessary use of force, the second of making an inaccurate statement in an official document. His case was adjourned pending the outcome of the criminal proceeding but it's now anticipated he will be served with an additional charge of being found guilty of a criminal offence, said Staff Insp. George Cowley of the professional standards branch.
"Dismissal is an option for this sort thing," Cowley said, adding "in no way does the Toronto police condone the mistreatment of persons who we contact or who are in our custody or misrepresentation in official documents."
Andrew Vaughan, the lawyer Jama Jama retained after he was charged with assault, said there's little doubt that without the videotape his client could have been convicted. He said while it's also disturbing other officers covered up for Preston, it's common knowledge in policing circles that "if you don't back your partners up on these events, you're going to have a hard time."
Additional articles by Betsy Powell
Source: Toronto Star, July 28, 2005
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