Ontario Superior Court Justice Cory Gilmore was already suspicious of two experienced York Regional Police officers when they refused to acknowledge that a stain marring a white Banana Republic long-sleeve shirt was blood — in spite of DNA evidence.

It looked like a coffee stain, Det. David Noseworthy told Gilmore’s court. Det. Alec Tompras, an officer with 11 years on the job, meanwhile testified that he did not know what blood stains looked like.

But it was a bizarre interview filmed at the police station — in which the accused in a 2012 robbery can only be seen from behind on video, while the police interviewer is in full view — that ultimately prompted a rare and sternly worded ruling from Gilmore to stay robbery charges against a man who admitted he’d participated in a Markham cellphone store holdup.

The police misconduct in the case, she ruled, was too serious to proceed on the charges, as it violated the accused’s charter rights.

Gilmore found there was “no other conclusion” than that Gil Kim, facing charges including robbery with a weapon or imitation weapon, was assaulted by Tompras and Noseworthy at a York police station after his arrest on Aug. 2, 2012. The officers then attempted to “cover it up,” she found.

“I find that both detectives . . . used physical intimidation to attempt to extract a confession from him. When they were unsuccessful, they had to hide the evidence of their actions by washing the blood out of his shirt and placing him away from the video camera for his interview,” Gilmore wrote in her Aug. 24 ruling.

The ruling prompted York’s police chief to order an independent investigation by Peel Regional Police.

“Chief Eric Jolliffe was not previously aware of this incident; however, once learning of it, he immediately initiated a Chief’s complaint under Part 5 of the Police Services Act,” York police spokesperson Const. Andy Pattenden said in an email Tuesday. “Judge Gilmore’s decision has been forwarded to Peel Regional Police to aid them in their investigation.”

Reached by email Tuesday, Noseworthy declined to comment, saying it was not an appropriate time. Tompras did not respond to a request for comment from the Star.

Kim’s lawyer, David Bayliss, said one of the most shocking parts of the case was that it was fairly “run of the mill” — a crime he called a low-level robbery involving a man with no prior criminal record, where no one was physically harmed.

The decision stems from a May 30, 2012 robbery of a Rogers Plus phone store in which $7,000 in cash and $80,000 in phones was stolen. Aside from Kim, three others were charged in connection with the case; Armin Zandi and Anthony Jouith have entered guilty pleas and the charges against the other, a store employee, were stayed.

According to Gilmore’s ruling, Kim was “candid” in his admission that he’d participated in the robbery. He appears in surveillance video, his face disguised as he holds something in the shape of a handgun while store employees loaded a duffel bag with phones and cash from the company’s safe. Kim then left the store in a Pontiac Sunfire driven by one of his co-accused and owned by another.

Just over two months later, York police arrested Kim in Toronto while he was driving his father’s car. He was taken into custody and brought to a York police station on Markham Rd., where he was booked, searched and placed in a cell.

While Kim contended he was roughed up from the start — he claimed that during his arrest, one cop whispered in his ear “wait until we get to the station”— Kim stated that the real abuse began when he was taken into an interview room at the station.

During testimony at his hearing for a stay of his charges, Kim claimed Noseworthy told him that his co-accused in the robbery had already given him up and that he should confess on camera. Noseworthy threatened Kim that if didn’t confess, he would be beaten, Kim said.

When he maintained his right to silence, Kim testified that Noseworthy then put on a set of leather gloves and punched him on the side of the face with a closed fist. The officer went on to strike him in the head and torso, grab him by the throat, bang his head against the wall, and kick him in the shin, Kim testified, adding that Noseworthy told him “this is what happens to people who rob businesses in broad daylight.”

Kim then told the court that his nose began to bleed, prompting Noseworthy to tell him to take off his shoes, his white shirt and tank top. He said Noseworthy then struck him in the head with one of his shoes and left the room with the shirt.

“I couldn’t believe this was happening,” Kim testified, according to Gilmore’s ruling. “I thought this stuff only happened in movies.”

Soon after, the officer returned with a warm, damp shirt, the blood stains mostly gone, Kim said.

Kim was then taken to a different interview room and questioned on video by Tompras. In the video, Kim maintains his right to silence but is barely visible — only the back of head can be seen and part of the right side of his face. Tompras is in full view.

Kim testified that he did not know where the camera was at the time, but recalled that Tompras directed him to sit in a chair that he later learned faced away from the camera.

Kim testified that he was held overnight, then the following day after being granted bail, went to hospital on the insistence of his mother, father, and sister. All three testified that they were concerned about his injuries, which included a swollen face, bruising and a bump on his head.

On the stand, Noseworthy denied all allegations about assaulting Kim, or having any contact with him whatsoever other than when he delivered food to him that evening.

Tompras also denied assaulting Kim. Both officers denied ordering Kim to remove some of his clothing or washing out any blood on the shirt.

Gilmore criticized the testimony of both officers on the stand, saying they were “dismissive of any possibility of wrongdoing.” The judge took issue with many aspects of their conduct but put most emphasis on the interview video where Kim is in the “wrong seat,” facing away from the camera — a fact that “simply cannot be explained away.”

“The only inference that can be drawn is that this was done to ensure that the blood on Mr. Kim’s shirt or facial swelling could not be seen on camera,” Gilmore wrote.

When asked about it on the stand, Noseworthy called it “a silly error” that should not have happened. Tompras said that “ideally” the accused should be in full view of the camera but that there was no clear policy on that, a statement he later admitted was inaccurate.

As an experienced officer, Tompras had to have known that the purpose of a videotaped interview was to allow the accused to be seen on camera, Gilmore wrote.

“For him to suggest that this was effectively a matter of officer discretion is bordering on ludicrous,” she wrote, adding that the “cavalier” manner in the officers treated the “grave” video error was “disquieting to say the least.”

The judge also questioned how the officers could maintain that stains on Kim’s shirt — which he’d preserved in a plastic bag, then sent for DNA testing — were not blood. Both officers were aware of the DNA test results stating it was blood.

“(Tompras) went so far as to say that he did not know what blood stains looked like. This evidence from a police officer with 11 years experience is incongruous at best,” Gilmore wrote.

Source: https://www.thestar.com