Stephen Hebscher successfully argues for exclusion of evidence, resulting in a judge acquitting a Toronto man of carrying a concealed weapon!

A judge has acquitted a Toronto man of carrying a concealed weapon — a BB gun — because police were unable to specify what offence they suspected him of committing before searching him.

“No less than four Charter rights were breached in one brief encounter with a young black man … who was simply standing outside a strip mall,” Ontario Court Justice Diane Oleskiw wrote in a 17-page ruling released this week.

The multiple violations include arbitrary detention, failure to advise him of the reason for his detention, right to counsel and conducting an unauthorized search.

The encounter began shortly before midnight on April 26, 2011, when two officers in a marked cruiser spotted Jovel Stewart, 22, and two others “huddled” in a dark alcove in a plaza in a high-crime area near Keele St. and Lawrence Ave. W.

Constables Rick White and Mark Luchetta “felt the need” to speak to the trio because of where they were standing and the fact they were wearing dark, heavy coats and hoods on a warm spring night, the judge wrote.

The officers approached Stewart — his companions ran off — and found him “nervous” and unresponsive to their questions, though he provided his correct name and address and removed his hand from his jacket when told to.

After White determined Stewart had an outstanding fraud charge, the officer conducted a pat-down search “for officer safety” and found an air cartridge ball-bearing gun beneath his clothing.

But the judge agreed with defence lawyer Stephen Hebscher that the way the evidence was obtained was the result of multiple Charter breaches by the officers.

Weapons Charges Dismissed

“Throughout the entire interaction with Mr. Stewart, they were suspicious of some kind of criminal activity, but they could not say what kind of criminal activity or that the suspicion was directed at any particular offence.”

Oleskiw also noted that “people of different ethnicities sometimes dress in heavy clothing during warm weather, and young black males are sometimes nervous around police officers.”

Admitting the BB-gun into evidence obtained “as a result of multiple breaches that have a serious effect on the constitutional rights of individuals sends the message that these breaches are condoned by the court,” she wrote.

She added that while a BB-gun is “certainly not a toy and is capable of causing real harm, it is not a firearm.” Nor was there a suggestion it was loaded.

“This case is just another example of police targeting certain visible minorities for ‘investigation’ based upon discriminatory criteria,” Hebscher wrote in email.

This article was originally posted here in The Toronto Star on Wednesday August 01, 2012 by Betsy Powell.

Read more how: “Stephen Hebscher successfully argues client’s Charter rights are violated, and weapon is excluded.”

Client Testimonials

Experienced Criminal Lawyer

As dedicated, honest and caring criminal lawyers, we bring you over 60 years of experience and an excellent record of success to help defend your criminal charge.

Our mission is to clear your name with no record and no jail time. You are not alone - we will help and support you for a second chance at life.

Contact Us