Stephen Spencer Davis, Special to National Post
December 7, 2016 6:52 PM ET
A file photo of a Toronto police vehicle
pic Toronto cop car
A Toronto police officer remained silent even as his partner’s fabricated evidence helped send a man to jail, a disciplinary tribunal heard Tuesday.
Const. Brian Davy pleaded guilty to one count of insubordination at the Toronto police disciplinary tribunal for his actions following the 2013 arrest of Nguyen Son Tran, the man at the centre of a scandal that’s prompted criminal charges against several officers.
Acting Insp. Shane Branton, a Toronto Police Service prosecutor, said Davy and Const. Benjamin Elliot were working together on Jan. 4, 2013, when they found heroin in Tran’s vehicle. Davy knew that Elliot, his partner, had fabricated evidence related to Tran’s arrest, but did not report the fabrication until a June 29, 2016 meeting with the police service’s Professional Standards division, Branton said.
A man prepares heroin to be injected at the Insite safe injection clinic in Vancouver, B.C., on Wednesday May 11, 2011. Toronto is joining the growing list of Canadian cities - which includes Ottawa and Montreal - that plan to set up safe-injection sites.
According to a court transcript, a confidential informant had told Davy about a drug dealer who kept heroin stashed in their vehicle.
The informant purchased heroin from the dealer, who stored drugs behind a Toyota Camry’s glove box, tied to a wire. Davy said he shared his information with Elliot, with whom he staked out an address in the city’s east end on Jan. 4.
The officers spotted the Camry, driven by Tran, and followed it into an underground parking garage. Elliot testified that he asked Tran to provide ownership and insurance documents. When Tran reached into the glove box, Elliot said, he “clearly observed” the wire, corroborating the informant’s tip.
Both officers found heroin in a subsequent search of the vehicle. The Crown prosecutor said that Elliot spotting the wire was “the final piece to the puzzle,” justifying the arrest.
Tran was ultimately sentenced to 30 months in jail for drug possession for the purpose of trafficking, but his lawyer believes the latest revelation will bolster an appeal that’s currently before the courts.
"All of the heroin that was found pursuant to this pretext for a search is, as they say, fruit of a poisoned tree"
“In light of that kind of evidence … it may be resolved in favour of Mr. Tran in a more expedited fashion,” said Kim Schofield.
Tran claimed that not only had Elliot never asked for his insurance and ownership papers, but that he kept those papers beneath the vehicle’s sun visor, not in the glove box. Under cross-examination, Elliot said that he had no notes related to the ownership and insurance papers. He denied Schofield’s claim that he had opened the glove box himself.
Justice Leslie Chapin nonetheless described Tran’s testimony as unreliable, and said in a decision that Elliot was “a reliable witness.”
According to an agreed statement of facts that Branton read Tuesday, “It was Constable Elliot’s fabricated … evidence that persuaded the accused person to plead guilty.”
“Had Officer Elliot not seen the black wire, he would’ve sent the accused on his [way],” Branton said. The prosecutor’s words could have easily been lifted from Elliot himself, whom the Crown asked what he would have done had he not spotted the wire.
Chief Mark Saunders speaks at a press conference in January, responding to the arrest of four Toronto police officers.
“Wished Mr. Tran a good night and we would have gone on our way,” Elliot responded.
Davy and his lawyer, David Butt, declined to comment on the case on Tuesday.
Police spokesperson Mark Pugash provided documents related to Davy’s misconduct and Elliot’s alleged misconduct, but said the service had no comment on Davy’s case. Pugash said via email last week that no criminal charges have been laid against Davy.
Elliot, along with other officers, also investigated Tran on January 15, 2014. Judge Edward Morgan concluded the officers planted heroin on the console of Tran’s car to retroactively justify a search of the vehicle.
“All of the heroin that was found pursuant to this pretext for a search is, as they say, fruit of a poisoned tree,” Morgan wrote as he dismissed the charges.
Elliot faces several criminal charges for his conduct in both of Tran’s arrests.
Davy’s case will be back before the tribunal on Jan. 25, 2017. Penalties at the tribunal range from reprimand to termination, and are influenced by factors like an officer’s work history. It is unclear what sanction Davy will face.
Davy was convicted earlier this year of two counts of deceit at the disciplinary tribunal, which handles non-criminal misconduct cases. He is suspended with pay, according to Pugash.