A Superior Court judge said she had “no choice” but to toss out a number of drug charges laid against a Toronto man after finding that one or more officers likely stole $5,000 in cash from his Liberty Village apartment during a search back in 2021.
Jawad Shamim, a personal trainer, was arrested and charged with 11 offences, including trafficking and possession of proceeds of crime, after police allege he attempted to sell cocaine to an undercover officer in May 2021.
In a decision posted last month, Justice Nancy Spies wrote that Shamim sought a stay of proceeding at the outset of his trial on the grounds that police allegedly used excessive force during his arrest and further, that officers who searched his apartment stole $5,000 from him that he had hidden in a garbage bag at the bottom of a laundry basket.
The judge noted she did not accept his evidence on excessive use of force but did believe cash was taken from his apartment.
“I find that $5,000 was likely stolen by the police during the search of his apartment,” Spies wrote.
“I stress that this finding is made on a balance of probabilities, not using the standard of beyond a reasonable doubt. This finding also means that at least one officer lied in giving evidence before me, which compounds the misconduct.”
In a statement provided to CP24, Toronto police spokesperson Nadine Ramadan said an investigation will be conducted.
“Anytime a judge makes findings or critical comments about police conduct, an investigation will be conducted by our Professional Standards Unit,” she wrote.
“We take judicial findings very seriously, and if misconduct is found, disciplinary action will be taken.”
All officers involved in the search testified and all denied stealing cash from the apartment, adding that they would report anyone they saw stealing to the commanding officer.
One officer would not be subject to any possible disciplinary action as they retired in 2022, returning to a job in the financial industry “for a better opportunity financially and to be able to work from home,” the decision read.
Shamim, a 37-year-old University of Toronto graduate who completed a Bachelor of Commerce degree in 2010, said he started his own fitness company in May 2017 after working as a junior accountant.
While admitting to dealing drugs, he said he was “not selling on a big scale,” the judge wrote.
He was arrested on May 13, 2021 after arranging to sell drugs to a man who was later identified as an undercover officer.
Cash ‘unaccounted for’
He testified that after his arrest, he returned to his apartment on May 14 to discover his drugs and cash missing, estimating that he had about $1,550 in a bowl on the kitchen island and $5,000 in a hamper in his bedroom closet.
He pointed to a notebook that he used to keep a leger of the cash he was receiving as proof of the amount he had stashed in his apartment. He told the court that clients paid him with cash or via e-transfer and he would start a new log in the notebook after depositing money in the bank.
The Crown accused Shamim of fabricating the log entries, knowing that the police misconduct would result in the charges being stayed, an allegation the accused denied.
The judge also did not accept this suggestion, noting that Shamim had told his lawyer about the money and showed him the weekly log in the notebook before he had disclosure that would detail the amount of cash that was seized by police.
Spies added that entry and exit videos shot by police during the search support his evidence about a garbage bag in the laundry hamper and the existence of the transaction notebook prior to his arrest.
“I have found the weekly log to be an authentic document, and the transactions there, in addition to Mr. Shamim’s banking records, establish that he should have had $6,650 in his apartment, less the cash Mr. Shamim used to pay for some expenses,” she said.
The amount of cash seized by police was $1,340, taken from the bowl on the counter, she said, meaning that $5,000 from the hamper is “unaccounted for.”
The judge noted that Shamim was a “convincing witness overall,” despite some concerns over his testimony on the excessive use of force allegations.
“Having found that the Mr. Shamim has proven on a balance of probability that police stole cash from his apartment, a stay of these proceedings and of all charges in the indictment must be granted, as no other remedy would distance this court from the misconduct of police,” Spies wrote.
“Notwithstanding the serious charges against Mr. Shamim, I have no choice but to grant the application, in order to denounce this misconduct and preserve the integrity of our justice system.”
