COURT FILE NO.: 11-G1056
DATE: 2013-04-12
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
PHILLIP FRED McGUFFIE
Defendant
M. Humphreys, and J. MacFarlane, for the Crown
N. Calvino, and M. Purcell, student–at-law, for the Defendant.
HEARD: April 2 – 5, 8, 10, 12, 2013
T.D. Ray, J.
Introduction
[1] The defendant faces twelve counts, arising out of early morning interactions with the Ottawa Police on December 18, 2011, after an individual in a group he had been with in the Union Station Bar on Elgin St, in Ottawa, had been seen with a gun. When searched, he was found with drugs. He did not have a gun, but a gun was located in the vicinity of the bar after Mr. McGuffie was arrested. Mr. McGuffie was taken to the Ottawa Police station and underwent a further search and a strip search, before being allowed to contact counsel.
[2] The charges against Mr. McGuffie include crack cocaine (possession for the purpose), cocaine (possession for the purpose), possession of a handgun (including being in breach of an order re a weapon) x 4, other breaches of orders x 5, and possession of proceeds of crime.
[3] The defendant has brought a Charter Application with respect to section 7, 8 and 10 breaches; the evidence included a blended voir dire.
Evidence
Early Morning at the Union Station Bar
[4] The doorman at the Union Station Bar, Jason Hoy, was charged with checking patrons at the door for age and proper dress. If the inside coat check was full – as it was that night- it was his responsibility to do a pat-down search of people’s jackets to make sure no drugs or weapons were being taken into the bar. He was one of about eight security staff that night and they rotated from time to time. The entrance to the bar was up from the sidewalk after approximately three steps. The doorman was stationed on the sidewalk. Inside one went up approximately 26 stairs that were quite narrow, and at the top was a coat check. To the right of the coat check was the main area. There were two emergency exits that led to Jack Purcell Lane at the rear. The main or second floor included booths, tables and a dance floor. The manager that night and the head of the security group were either on a third level mezzanine or on the second floor dance floor area. At the far side of the dance floor was a door to the patio - that was actually a veranda that looked over Elgin St. In December, it was used for smokers.
[5] At approximately 1 am, Jason Hoy switched and was then stationed at the door outside the bar on the pavement. Five minutes or so later, a group of five or six males – one white and the rest black were stopped by Mr. Hoy, and were refused admission. He told them the bar was full but in reality it was because they didn’t meet the dress code that forbid overly baggy – urban – clothes because management was concerned about the concealment of alcohol, drugs or weapons. After a quick phone call, a Mr. Ali came to the door. He was a promoter for the bar, and told Mr. Hoy that the group was ok to be admitted. The group had asked for a booth and for a bottle of expensive liquor. However, before admittance, Mr. Hoy did a pat down. He found a heavy object in the breast pocket of a tall 6 ft. 3 in black male (later identified as Mr. Sheikhdoon) with a shiny black jacket, and asked it to be produced. Mr. Hoy said he thought it might be a weapon – perhaps a box cutter. The male refused, and following a huddle of the group came back to Mr. Hoy for re-admission. Mr. Hoy noticed the white member of the group with long blonde hair leave and walk down Elgin St. The heavy object was gone from the black male’s breast pocket. Mr. Hoy did a pat down of the rest of the group and found nothing. After the group went upstairs, Mr. Hoy went upstairs and spoke to the head of security and general manager. He told them what had happened at the door, and was instructed to post himself near the booth where the group was sitting in order to keep an eye on them.
[6] The booth was a horseshoe shape and was located adjacent to one of the emergency exits and next to the dance floor. The emergency exit was not for regular use by patrons, and Mr. Hoy said he did not see anyone leave by the emergency exit until after the police arrived. However there were times when he was not near the exit, and would be unable to see anyone leave. The booth had a light over it. Over the course of the rest of the evening, members of the group came and went to the dance floor, bathroom, and the patio to smoke. Mr. Sheikhdoon stayed in the booth. He became quite intoxicated and was “acting stupid”. At some stage the white male with long blonde hair re-joined the group. Mr. Hoy; the manager, Mr. Hunter; and the head of security, Mr. Rakowski, observed Mr. Sheikhdoon over the course of the evening to be the leader of the group. A couple of times, he was observed acting quite aggressively with other members of the group. It was noted because that kind of conduct would have ordinarily signalled a fight. However the members of the group behaved quite passively towards him.
[7] At one point Mr. Sheikhdoon was standing next to the booth; and Mr. Hoy saw him drop something quite heavy. Mr. Sheikhdoon picked it up and put it in his breast pocket. Mr. Hoy said he thought it might have been a knife. He reported what had happened to Mr. Rakowski, and told him that the object he noted at the door when the group tried to enter – was now in the bar. Mr. Hoy was told to return to his post and keep a watch.
[8] Approximately ten to fifteen minutes later, Mr. Hoy saw Mr. Sheikhdoon sitting alone in the booth, and acting more aggressively. Mr. Hoy saw him pull out a small black handgun with a silver chamber, and place it on the bench beside him. He sat back for approximately five to ten seconds, and crossed his arms. He was quite drunk. He picked up the handgun and placed it in his left breast pocket. Mr. Hoy became quite agitated. He then got a text message from Mr. Rakowski, who had also seen the gun, to step back. Mr. Hoy then saw the white male return to sit beside Mr. Sheikhdoon. The black male from the group with a grey or black hat, who he identified as Mr. McGuffie in the prisoner’s dock, sat beside Mr. Sheikhdoon. He was a lot shorter than Mr. Sheikhdoon. He also identified Mr. McGuffie as one of the group leaving the bar later. Mr. Hoy then saw the bar promoter, Mr. Ali and the manager, Mr. Hunter approach the group. He did not hear what was said. At the end of the evening, Mr. Hoy said he saw a white male with short hair and a green vest speak to Mr. Sheikhdoon. The white male later left by the rear exit. At no time did he see anything being passed by Mr. Sheikhdoon to anyone else. He believed that Mr. Sheikhdoon still had the gun.
[9] The manager then shut off the music and began encouraging people to leave the bar. Some were heading for the front stairs, and others were leaving by the rear exit. By this time, the police had arrived, and some were coming up the stairs. Mr. Sheikhdoon was at the top of the stairs and interacted aggressively with the police. Mr. Hoy said he signalled to the police at the top of the stairs that Mr. Sheikhdoon was part of the group.
[10] Mr. Hoy said he assisted the police in searching the bar for about twenty minutes and left at about 3 am. He left by the rear exit to Jack Purcell Lane and saw a cruiser with Mr. McGuffie sitting in the rear, plus a number of policemen. Mr. Hoy said that he later went onto the internet and found an image of the small handgun he had seen on the bench in the bar. He gave the image to a detective later after being questioned. The image was that of an identical MAG Unique 32 pistol. Mr. Hoy was later shown a photo line-up and identified Mr. Sheikhdoon with the group when they had come club. He also identified Mr. McGuffie as similar to the person in the back of the cruiser.
[11] Mr. Rakowski believed that Mr. Hoy approached him about 12.45 about a group that he had concerns about. He had agreed with Mr. Hoy that the group did not belong in the bar. Mr. Hunter, the general manager, however had allowed them in. The group of five black males and a white male were put in a booth close to the dance floor and ordered a very expensive bottle of Hennessy Cognac. Mr. Rakowski watched the group from the mezzanine so that he was looking down on the group. Mr. Hunter was with him most of the time. He saw Mr. Sheikhdoon pull something out of his pocket and put it on the bench beside him. He said it was there for about 5 seconds before he put away. At the time, he recalled there were two black males with him in the booth. He told Mr. Hunter and also alerted the rest of the security staff by text messaging. He said he would have called 911 right away but was told by Mr. Hunter to hold off. He believed that this occurred “20 minutes at most” after the group had arrived. He saw Mr. Hunter go down to the group with the promoter, Mr. Ali. After about twenty minutes, Mr. Hunter told him to call 911. He said he went down to the sidewalk to call 911 and to wait for the police. He had no idea what time it was; but believed the police arrived within about 5 minutes. When the police arrived, he informed them that it was a gun that had been seen, introduced them to Mr. Hunter and then returned up the stairs and up again to the mezzanine. Approximately 2 .00 to 2.15 am when the music was off, he assisted the patrons to leave through the emergency exit. He did not assist with the search.
[12] Mr. Rakowski described Mr. Sheikhdoon as about 5 ft. 11 in tall, with an Afro, skinny, with a black shirt, white t-shirt and no jacket.
[13] Mr. Hunter, the general manager and part owner of the Union Station Bar recalled being informed at about 1 am of a problem at the door about the dress code. He went downstairs, looked at the group, and felt they looked harmless. He remembered that they bought a “product – Hennessy Cognac” that was very expensive and that he had wanted to get rid of. The four black males and one white male were in a booth near the dance floor. Later, when standing on the mezzanine, he was looking down, and heard Mr. Rakowski say, “The guy has a gun”. They then went into damage control. He told the bar promoter that the group had been seen with a gun, and that “we need to get them out of here”. He saw Mr. Ali speaking to the group. He said he thought that asking them to leave was the least aggressive way of getting them out. He saw Mr. Sheikhdoon reach inside his left breast pocket – and the others in the group – particularly a black male with a red jacket seemed to be trying to stop him. Mr. Sheikhdoon seemed to be in charge of the group.
[14] Around then Mr. Rakowski called 911. He walked down to the front door to speak to the police. The entire group started to head down the stairs. He spoke to the police, and pointed out two of the members of the group. One of them spoke to the police and the other started down Elgin St.
[15] Mr. Hunter went back inside and up the stairs. He saw three more of the group at the top of the stairs and saw that Mr. Hoy was pointing them out to the police. One of them was Mr. Sheikhdoon. He said it was a bottleneck because of the narrow stairs. With 200 people to get out of the bar, he opened up the rear emergency exits and started ushering people out and then to Waverly, then around to Elgin to get cabs. He turned off the music at about 2.00 to 2.15 after the police arrived in order to get more control.
[16] Mr. Hunter confirmed that the emergency exits were easy to open with the push bar, and that the exits were not set with an alarm.
The Police Arrive At The Bar
[17] The first police officer to arrive was Sgt. Borger. He was very close by when the call was made. He parked across the street from the bar on Elgin St, and went to the front door where he was met by Mr. Hunter, Mr. Hoy and Mr. Rakowski. He learned from them that someone inside had a firearm. He also learned that it was a group of four black males with no description to differentiate one from the other. No mention was made of a white male being part of the group. Then the other officers, Greenwood, Rambaran, Tetreault, and others arrived. At that moment, he said, either Mr Hoy, or Mr. Rakowski pointed out a male exiting from the bar as “the guy with the gun”. The male (later identified as Mr. McGuffie) began to walk down Elgin towards Frank St.; and Sgt Bolger tasked Cst. Greenwood to go and detain him. He had no recollection of a second black male exiting the bar at the same time.
[18] Meanwhile, Sgt. Bolger, Cst. Tetreault, and Cst. Rambaran went up the stairs where two other members of the group were identified. He said Cst. Tetreault and Cst. Rambaran detained the two and took them outside for questioning. He noted that upstairs, the bar was pretty well cleaned out. He commenced his search for the gun at the booth, and then the bathrooms. Other officers were assisting, but he could not recall who. He did not see Cst. Greenwood in the bar. Sgt. Bolger then went outside and learned that Cst. Greenwood was in Jack Purcell Lane; and directed other officers to search along the path taken by Mr. McGuffie and Cst. Greenwood. He noted that there were still a lot of cars parked along the streets and in Jack Purcell Lane. He personally searched carefully with his flashlight under cars parked at the south-west corner of Frank St and Jack Purcell Lane. No gun was found. He observed Cst. Greenwood in his cruiser on Jack Purcell Lane closer to Waverly and learned that a quantity of drugs had been found on Mr. McGuffie.
[19] At that point Sgt. Bolger called in the K-9 unit to commence a search for the firearm. He was present when the K-9 unit found the gun at the south-west corner of Frank St and Jack Purcell Lane where he had looked earlier under the three cars parked there. When the K-9 unit arrived, the cars had left. He surmised that the gun must have been hidden inside a bumper or inside a wheel well when he did his visual search. Sgt Bolger “made safe” the handgun, and had it placed in an evidence bag.
[20] Cst Paul Greenwood, a six year veteran of the Ottawa Police (and previously a corrections guard in Kingston for 6 years) was one of the first to arrive at the Union Station Bar. Cst Greenwood was dispatched at approximately 2.07pm. He had been in the area, and described it as a firearms dispatch. While he said he had an independent recollection of the call that morning, I observed that Cst Greenwood virtually read from his notes and typewritten report. He parked his marked cruiser across from the bar and walked to the bar entrance to speak to the doorman. Three other officers arrived at the same time. These included Constables Karwaski and Rambaran. He did not mention Sgt. Bolger. Cst Greenwood said he was told that five males had come into the bar; that the doorman had felt something when he had searched one of the males – and that a gun was later seen being passed around.
[21] At that moment the doorman pointed out two black males that he said had been part of the group. The one male became very loud and boisterous while the other started to quickly walk south down Elgin St. He said he thought that Cst Rambaran or Karwaski dealt with the boisterous male. Cst Greenwood said he followed Mr. McGuffie because he was told he had been part of the group and he believed that he might have a firearm. He walked quickly after him. Mr. McGuffie turned right on Frank St., and then right again on Jack Purcell Lane. Cst Greenwood called out to him to stop, and he eventually stopped behind the Union Station Bar not far from one of the exit doors near a garbage dumpster. Cst Greenwood said he lost sight of him for about “1 maybe 2 seconds” as Mr. McGuffie made each of his turns. He at no time saw him make a motion as if to throw anything away.
[22] Cst Greenwood said he told Mr. McGuffie he was being detained on the grounds that he believed that he had a firearm and for reasons of public safety. Mr. McGuffie told him that he didn’t have a firearm and didn’t know anything about one. Cst Greenwood placed him in handcuffs and did a “quick search to the vulnerable parts of his body”- a pat down of his waistband and waistline, which he described as a “cursory search”. Mr. McGuffie told him his name was David Piard and gave him an Ontario Health Card. Cst Greenwood said he found nothing, and placed him in the rear of Cst McDonnell’s cruiser which had just pulled into the back of the bar on Jack Purcell Lane at 2.19 am. Cst Greenwood then returned on foot to the bar to assist other officers. He said he was concerned about officer safety and was of the belief that the gun was in the bar. After what he said was a quick search of the bar, Cst Greenwood returned to Cst McDonnell’s car and said he told Mr. McGuffie that he was going to search him for a firearm since he said he found out it was a small gun easily hidden. In fact it was 31 minutes later that he returned. He said he believed Mr. McGuffie had the gun because he was one of the five with the gun and had initially been evasive. He removed him from Cst McDonnell’s cruiser and did a “quadrant search” – to be thorough. He said the search took place outside the cruiser near the garbage dumpster. He denied that he pushed Mr. McGuffie face down on the rear bench seat of the cruiser, and denied that he took his jeans off to conduct the search. During the search, he found “ a package of white powder in a rectangular shape” identified as cocaine which he said felt like the barrel of a gun; and approximately $600 cash in his pockets. He also found a small bag of marijuana in his pants pocket. He also found and seized a cell phone. Cst Greenwood arrested Mr. McGuffie at 2.55 am for possession for the purpose of trafficking. He said he “would have” read him his rights as well as given a secondary caution. When placing him in his cruiser, he said that Mr. McGuffie’s jeans fell off because they were so loose and that he had no belt. Cst Greenwood said Mr. McGuffie was dragging his jeans behind him and either took them off or kicked them off. Cst Greenwood then took Mr. McGuffie to the police station cells further down Elgin St. He is shown on a video arriving at 3.25 am.
[23] Cst McDonnell arrived at the bar after hearing the call at 2.14 am. He had heard that five or six males had a knife, and then someone asked for more units because a gun was involved. He heard over the air that Cst Greenwood had gone behind the bar into Jack Purcell Lane, so he drove there in his marked cruiser to assist. At 2.19 am he moved his cruiser to the end of Jack Purcell Lane facing west on Frank St so he was essentially blocking the lane. He saw Cst Greenwood emerging from the alley approximately twenty metres distant with (Mr. McGuffie) in custody, and in handcuffs. Cst Greenwood placed Mr. McGuffie in the rear of Cst McDonnell’s cruiser. Cst Greenwood was holding a health card that he had given to Cst McDonnell in the name “PIARD” and said that (Mr. McGuffie) was under investigative detention for weapons. Cst Greenwood didn’t say anything further and walked back into Jack Purcell Lane. Cst McDonnell assumed he was returning to look for a gun. Over the next 30 minutes, Cst McDonnell checked the health card name plus several other names and spellings Mr. McGuffie had given him. None of the names checked out. When Mr. McGuffie gave him a date of birth he gave Cst McDonnell an age that did not correspond to the date of birth. Cst. McDonnell said he believed Mr. McGuffie was lying to him about his identity. Cst McDonnell did not question him about the investigation, other than trying to establish his identity. During this time, the odd pedestrian walked through. He reversed his cruiser once or twice to permit cars to drive out. He did not seek identification from any of these people nor record the licence plate numbers of the cars.
[24] At 2.50am, Cst Greenwood returned to the cruiser and said he would take the black male in. Cst Greenwood returned to his cruiser on Elgin and drove it onto Jack Purcell Lane but at the Waverly end. When Cst McDonnell saw the cruiser, he said he drove forward to be next to Cst Greenwood’s cruiser. Both Cst Greenwood and Cst McDonnell took Mr. McGuffie from the rear of the cruiser around to the hood and Cst Greenwood said he was going to do a better search since he had not done a very thorough search previously. Cst McDonnell assisted by holding his arms while the search was conducted. The various items found (cash, cell phone, sandwich bag with cocaine from the left breast pocket) were placed on the hood of the cruiser. When asked, Mr. McGuffie first said it was baking soda, and then said it was for personal use. As Mr. McGuffie was walking to the other cruiser, he kicked off his shoes and let his jeans – which had been below his butt – fall to the ground. Mr. McGuffie was wearing long underwear under his jeans.
[25] Cst Greenwood then left with Mr. McGuffie, and Cst McDonnell turned his cruiser around on Jack Purcell Lane and took his flashlight to assist in the search for the gun. After 10 – 15 minutes, he found nothing and returned to sit in his cruiser. He was sitting in his cruiser when the K-9 unit arrived and found the gun.
[26] Cst Rambaran, a 3 ½ year veteran of the Ottawa Police Service arrived in his marked cruiser after self-despatching because of hearing the radio call. The information received was that someone was in the bar with a weapon. “knife – possibly a gun”. Sgt Bolger was there when he arrived. He went to the front of the bar on Elgin St and waited for direction. He recalled Cst Tetreault arriving and then he spoke to Mr. Hunter. As one of the black males exited, and Mr. Hunter identified him, Cst Rambaran detained the black male who identified himself as Abdurizaka Abdullahi. He confirmed the individual’s identity, did a pat-down and after being satisfied that he had no gun, released him unconditionally. He said the black male was wearing black jeans and a dark coat. Cst Rambaran went back into the bar and was tasked to interview Messrs Hoy, Rakowski and Hunter. He agreed that Mr. Hunter had told him that a white male with the chain had left by the back exit. Cst Rambaran went down one of the exits and saw that it led to Jack Purcell Lane. He agreed that his statements were not verbatim, and that his reference to a white male with long blonde hair seen leaving by the back might have come from one of the other three that he had interviewed.
[27] Cst Tetreault arrived in his marked cruiser around the same time as the other officers. He had been told that there were five or six males and maybe a knife. He went up the stairs of the bar, and Mr. Hunter pointed out a member of the group. He detained the individual and told him he was suspected of having a gun. The male was Abraham Bihi. He confirmed the black male’s identity, conducted a quadrant search that included his socks and found no gun. He described the male as 6 ft. tall, slim, long curly hair, black leather jacket, red baseball cap and dark jeans. He was agitated and loud but compliant He was released unconditionally after approximately five minutes.
[28] Cst Tetreault then went to the rear of the bar in Jack Purcell Lane, and assisted with a search for a gun. The K-9 unit arrived at 3.09 am, and shortly after found a handgun at the south-west corner of Elgin St and Frank St on the asphalt pavement several metres from the building. Sgt Bolger made the gun safe. One round was found in the chamber. The magazine was empty. Cst Tetreault thought to himself that perhaps a car had been parked on the gun.
[29] Cst Karwaski also responded to the call. He self despatched when he heard the call. Sgt Boger was at the Bar when he arrived. At the top of the stairs, the doorman pointed out a black male as being the one with the firearm. He took the individual to his cruiser after telling him he was being detained because of a firearm. He did a quadrant search and located four cell phones, approximately $1,000 cash and ID. He put it all in an evidence bag, placed him in the cruiser and checked his identity as Sayed Sheikhdoon. He found no gun. He then released him unconditionally and gave him his property back after approximately 5 minutes at 2.15 am. The individual was last seen walking south on Elgin St. He described the individual as approximately 5 ft. 10 in tall, black, and having been drinking but not so inebriated that he couldn’t release him.
[30] Cst. Karwaski then drove his cruiser into Jack Purcell Lane and blocked off the end of the lane to form a perimeter. By this time almost all of the vehicles parked behind the bar had left. He was present when the K-9 unit found the gun.
[31] The K-9 unit with Cst Smith arrived at 3.09 am and included Tucker who was trained to scent guns with ammunition and certain drugs. He was told to search along Elgin to Frank St and then along Jack Purcell Lane. The gun was located at the corner of Elgin and Frank Streets in a cut-out at the corner suitable for parking approximately three cars.
At The Police Station Holding Cells
[32] Cst Greenwood arrived at the sally port of the holding cells with Mr. McGuffie at 3.25 am. He said he had learned while en route that a gun had been found. The balance of the interaction with Cst Greenwood was recorded on surveillance cameras. The cameras recorded the entirety of the proceedings with Mr. McGuffie except for a strip search in the room for that purpose.
[33] Cst Greenwood described taking Mr. McGuffie before Sgt Lucas, the NCO in charge of the holding cells, and asking that a strip search be conducted because he had found drugs and thought he might still have a gun. Although, he acknowledged to Sgt Lucas that a gun had been found. Sgt Lucas approved a strip search and Mr. McGuffie was taken to the search area where three special constables conducted a search. Mr. McGuffie was getting aggressive and very vocal about his money having been taken. He was screaming and twisting making it difficult for removal of his handcuffs, and to complete the exterior search. Cst Greenwood observed until after the special constables grounded Mr. McGuffie in order to maintain control, when he involved himself. He first put one foot on Mr. McGuffie’s ankles and then stood on his ankles with his full weight for more than a full minute. Mr. McGuffie was very vocal and screaming at the pain in his ankles. Cst Greenwood removed one foot from his ankles. At no time did he kneel down to hold his ankles with his hands. He said he stood on his ankles to stop him from kicking. He acknowledged that he heard Mr. McGuffie screaming because of the pain to his ankles. During the search a small quantity of crack cocaine was found sewn into Mr. McGuffie’s boxer shorts under his long underwear, and at one point Mr. McGuffie reached behind himself with his handcuffs on – inside his boxers- and pulled out a large package of crack cocaine from between his buttocks. Mr. McGuffie ceased being so aggressive and resistive. He was then taken into the strip search room. Cst Greenwood stood outside in the doorway of the room.
[34] At 3.36 am, Cst Greenwood allowed Mr. McGuffie to telephone counsel. After doing so, Mr. McGuffie asked to speak to Sgt. Lucas. He told Sgt Lucas his real name was McGuffie; and that there were warrants outstanding. Mr. McGuffie was then lodged in a cell. The seized evidence was placed in evidence bags.
[35] Sgt. Lucas described himself as the cell block sergeant. He said he had been in the first month of being cell block sergeant at the time. He identified his responsibilities as firstly the safety and security of everyone there, and secondly to ensure that those being held are being necessarily held. He recounted Cst Greenwood and Mr. McGuffie coming before him, and recounted that he had approved a strip search of Mr. McGuffie because of drugs having been found on him. He described that Mr. McGuffie first underwent a detailed search to ensure he had no weapons or drugs. It is a very detailed search involving clothing seams and clothing creases. Sgt Lucas said this is required of everyone coming into the cell block. Mr. McGuffie became quite agitated and resistant during the detailed search by the special constables, and Sgt Lucas saw him grounded in order to better control him. There was a lot of yelling and screaming. Sgt Lucas assisted by holding his shoulder. He observed the other officers holding Mr. McGuffie down and trying to get him into restraints. Some were holding his legs, others a shoulder, and others searching and putting the restraints on. He described these TRD’s as necessary to get handcuffs off and to replace the handcuffs. They are equipped with a quick release. The searches are preferably conducted by same sex. A female special constable assisted with the extremities search but then backed off when it became more intrusive. One TRD was controlling his arms, and another above his knee to stop him flailing his legs about. Sgt Lucas heard Mr. McGuffie yelling about his ankles. A package of crack cocaine was found sewn into the waist of his underwear. He heard Special Constable Morris, while conducting a pat-down search of his buttocks say she felt something hard, and that she wanted it dealt with before Mr. McGuffie should go into strip search. He said that Mr. McGuffie suddenly became compliant. After the handcuffs had been removed and with the TRD in place, Mr. McGuffie reached between his buttocks with his hands inside his underwear and pulled out another package of crack cocaine. Mr. McGuffie had stopped struggling, became more cooperative, and after being taken into the strip search room, Sgt Lucas said he removed his own clothing and exposed his buttocks and scrotum for visual search by the male officers present as he was requested to do.
[36] Special Constable Peterson was one of those charged with searching Mr. McGuffie in the cell block. He is a 19-year veteran with duties that include the cell block and court house security. At the cell block his duties included searching male prisoners, photographing and fingerprinting prisoners, meals and data entry. That morning he was the lead, and was assisted by SC Brazeau, and SC Morris. When Mr. McGuffie was brought to the main search area, SC Peterson began searching him to see if he had any weapons or evidence. He used his hands from behind. Mr. McGuffie’s hands were handcuffed. SC Peterson began trying to take off the handcuffs but Mr. McGuffie kept twisting and turning making it very difficult to put the key in the handcuffs. He then started screaming and yelling and twisting with his body. SC Peterson said that Mr. McGuffie was yelling that his wrists hurt, but he said he wasn’t doing anything with his wrists other than trying to get the key in. He said he kept telling Mr. McGuffie to stand still and just to look straight ahead, but Mr. McGuffie kept struggling and twisting. He said that SC Brazeau, who was assisting, then reached over, grabbed Mr. McGuffie at the back of his neck and shoulder and took him to the ground. All were then on the floor. Mr. McGuffie continued to scream and was kicking with his feet. He saw Mr. McGuffie reach his hands into the back of his buttocks and pull out a bag. His hands were underneath his clothing. SC Peterson said he then went into the strip search room with Mr. McGuffie who removed his own clothes. He was compliant so that no-one touched Mr. McGuffie in the strip search room.
[37] SC Brazeau, a 23 year veteran assisted in the search. He said that Mr. McGuffie seemed quite agitated and verbally confrontational. He was told to stand still and face the wall, but “spontaneously turned around”, was struggling and seemed to him to be overreacting. Mr. McGuffie kept turning around and looking at the cameras. He said that when he grounded Mr. McGuffie, he landed on his back even though SC Brazeau tried to put him on his stomach. When SC Brazeau managed to get him on his stomach Mr. McGuffie struggled to turn onto his back. He had his arm across the back of Mr. McGuffie’s shoulders and with his hand resting under his chin. He said that Mr. McGuffie kept yelling about being choked but he said he didn’t have any pressure on Mr. McGuffie’s throat. He said it was impossible for him to be choking Mr. McGuffie with the way he had his hand. He said that Mr. McGuffie seemed to be trying to be distracting, and was trying to roll over onto his back. Suddenly Mr. McGuffie stopped struggling, reached behind between his buttocks and pulled out a small package. He denied hearing Mr. McGuffie gurgle and denied using thumb pressure points. He said he was unaware that Cst Greenwood was standing on Mr. McGuffie’s ankles.
[38] Special Constable Melanie Morris was on duty in the search area in the early morning of December 18, 2011. She has been in the job for 16 years. Her job is conducting searches of prisoners at the cell block. The protocol requires that only males conduct searches of males, however, she said she came from behind the Special Constable area when she heard yelling and saw Mr. McGuffie being grounded after having been combative with the search staff. While the males physically held Mr. McGuffie after he was grounded, she said she assisted and placed the TRD’s on Mr. McGuffie’s arms and legs above the knee. Until the TRD’s were placed on his legs, Mr. McGuffie had been kicking out- and she recalled him kicking her. She had no independent memory of what Mr. McGuffie had been saying or what he was complaining about. She said that from her experience, when someone is being combative, it usually means they have a weapon or contraband. She said she had gloves on when she did a pat down above his clothing, and used the edge of her hands and back of her hands. She did not pat down Mr. McGuffie in the area of his genitals. As she was doing a search of his leg she felt a mass or foreign object under his clothing in the area below his buttocks. He was wearing pants. She said she notified the sergeant that she had felt something and moved away. She did not remove any of the items. She heard Mr. McGuffie say something like – I’ll get it – and she removed herself. SC Morris said her next dealings were to put the retrieved items in an evidence bag: golf ball size, and a smaller bag with substance. She turned the evidence over to Cst Greenwood. She said that she didn’t see the strip search and denied seeing his buttocks.
[39] Ottawa Police Cst Thomson gave his evidence via telephone from the Dominican Republic. He is seconded to the UN force in Haiti and was unable to be present in court. Cst Thomson said he was in the sally port doing paper work in his car when he heard yelling and screaming inside. He said he re-secured his weapon and entered the cell block to assist. Cst Thomson said he could see the special constables on top of Mr. McGuffie who was screaming – but could not see why he was screaming. He had no memory of Mr. McGuffie complaining of being choked. Cst Thomson moved to Mr. McGuffie’s legs where Cst Greenwood had been, and held his legs while straddling them. He did not notice how Cst Greenwood had been holding his legs. He said he heard SC Morris say that she felt something in Mr. McGuffie’s boxers at the leg and moved away. Cst Thomson said that he pulled down Mr. McGuffie’s long underwear and could see and feel something hard. He could not remove the item so he took his knife (rescue knife with a blunt tip) and cut out the item. He said it seemed like it was sewn into Mr. McGuffie’s underwear. Once it was removed, he said Mr. McGuffie seemed to calm down, and he stopped complaining of pain. Cst Thomson said he positioned himself at the entrance to the strip search room to be a “second witness” in case anything happened, but the strip search was uneventful and Mr. McGuffie was cooperative.
[40] After the search had been completed, Mr. McGuffie was asked if he wished to speak to a lawyer, and was shown into the room for that purpose. When Mr. McGuffie came out, he asked to speak to Sgt. Lucas, and told Sgt. Lucas that his real name was Phillip McGuffie and that there were outstanding warrants. SC Morris took Mr. McGuffie to a holding cell. Sgt. Lucas said he saw no injuries on Mr. McGuffie’s person.
[41] Ottawa Police Detective O’Brien gave expert evidence concerning the gun – a MAG Unique .32 semi-automatic pistol, with an 88 mm barrel length, and a magazine which could accommodate nine rounds. He test fired the handgun. He identified it as a prohibited weapon as defined in the Criminal Code.
[42] Crown counsel filed an agreed statement of fact, which included an inconclusive DNA test of the surface of the hand gun, and noted that fingerprints were not found. The drugs were identified as: 118.5 grams of powder cocaine, 22.7 grams of crack cocaine; and 7.5 grams of crack cocaine. It is admitted that the quantities presume trafficking.
Analysis
Voir Dire. Charter Breaches
[43] The Defence position is that a series of Charter breaches require that the drugs be excluded. The trial proceeded as a blended voir dire. Mr. McGuffie elected not to give evidence on the voir dire.
[44] The Crown contends that there were no breaches and that while Cst Greenwood exercised poor judgement from time to time, that the breaches were not serious; and in any event the drugs ought not to be excluded under s 24(2)[^1].
[45] I find the following breaches of Mr. McGuffie’s Charter rights occurred:
a. While Cst Greenwood’s initial investigative detention was reasonable, it was not reasonable to leave Mr. McGuffie in the back of Cst McDonnell’s cruiser in handcuffs for 31 minutes. His reasons for leaving – to go back into the bar to assist in the search for the gun, ignored Mr. McGuffie’s rights, and ignored his obligation to ensure that the period of investigative detention be as brief as necessary under the circumstances. The area was flooded with police officers. Cst Greenwood’s own supervisor was in charge and inside the bar.
b. Cst Greenwood breached his obligation to promptly advise Mr. McGuffie of his right to counsel, and did not allow him to exercise his right to counsel until almost one hour and 15 minutes after his detention (3.36am) – all while he was within steps of the Ottawa Police Station further down Elgin St. No excuse was advanced except for the submission of the Crown that officer safety trumps the rights of a detainee. Officer safety in this case was a red herring. If Cst Greenwood had genuinely been concerned about officer safety he would have conducted a thorough search of Mr. McGuffie when he was first detained, and before placing him in the rear of Cst McDonnell’s cruiser. He did not. He described it himself as a cursory search.
c. Cst Greenwood’s second ‘quadrant search’ some 31 minutes after he was initially detained raises some serious questions. He explained that he did this second search because he thought that Mr. McGuffie might have the gun. If that were so, why would he delay the search for 31 minutes while fellow officers continue to search the area for the gun – and all the while with Mr. McGuffie sitting in the back of Mr. McDonnell’s cruiser.
d. Having purported to arrest Mr. McGuffie at 2.50am after his second search uncovered a large packet of cocaine in Mr. McGuffie’s breast pocket, and having read him his rights to counsel, there was a further inexplicable delay of another half hour to get to the police station – which would be a 10 minute walk.
e. The search at the cell block was problematic. What is clear from the surveillance cameras is that Mr. McGuffie was not being cooperative, and the cell block staff had great difficulty searching Mr. McGuffie. I find no fault with SC Morris’ search. It is clear on the video that she was performing a pat down while the male staff was controlling Mr. McGuffie. It is clear from the video that Mr. McGuffie was attempting to discourage the staff from doing their job. SC Morris is seen to step back right out of the way as soon as she felt something hard. It is hard to be sure from the audio (video) – but she may have uttered something about being concerned for safety before he was to go into the strip search room. I do however have a serious issue with Cst Greenwood’s assistance in the search. His assistance consisted of standing on Mr. McGuffie’s ankles with what was clearly an intention to cause Mr. McGuffie pain. It was a purely gratuitous act. While Cst Greenwood might have gained satisfaction from needlessly standing on Mr. McGuffie’s ankles for over a minute, he further breached Mr. McGuffie’s rights to be free from the intentional infliction of pain while being in his custody.
f. The strip search was not conducted with the respect for McGuffie’s privacy rights that the law requires. The door was open. The cellblock sergeant and two special constables were in the room with Mr. McGuffie. That appeared to be sufficient. There was no need for Cst Thomson to be a witness in case anything went wrong. That was for the cell block supervisor to decide. While Cst Thomson is to be commended from coming into the cell block after he heard the commotion to render assistance – which ironically included straddling with his thighs – not standing on Mr. McGuffie’s ankles – the cell block sergeant should have made sure that the strip search was conducted in private. It was not.
[46] Having found these breaches of Mr. McGuffie’s charter rights, I must consider whether they require that the evidence found during the course of these breaches be excluded. A balancing of factors is required. These are as follows:
a. The seriousness of the Charter-infringing state conduct;
b. The impact of the breach on the Charter-protected interests of the accused, and;
c. Society’s interest in the adjudication of the case on its merits. [^2]
[47] I find the breaches serious. There was simply no acceptable excuse advanced for what occurred. Mr. McGuffie’s rights were not taken seriously. The detention and search of an individual is so intrusive under our law, that there must be scrupulous compliance with the rights of an individual. The law requires it. There was not. I am encouraged by the text book detention and search conducted by the other officers. Cst Greenwood’s infringing conduct was not typical of a systemic problem in the Ottawa Police Force. Here we have a significant quantity of cocaine and crack cocaine. It is admitted that the amount constitutes possession for the purpose of trafficking. These drugs are a serious blight in our community. Their use causes individuals to cause themselves and others serious harm. They are at the root of a great deal of crime in our community. Parliament recently underscored the seriousness of these drugs by requiring a minimum sentence of five years imprisonment. I must consider whether on balance that the admission of the drugs into evidence would bring the administration of justice into disrepute.[^3] In these circumstances, as concerning as the Charter breaches are, I cannot exclude the drugs from evidence. I must underscore that my decision to not exclude these drugs should in no way be taken to excuse the infringing conduct in this case.
Reasons
Weapon - Gun
[48] While Mr. McGuffie was identified as being part of the group in the bar, no evidence put Mr. McGuffie in possession of the gun while he was in the bar. A photo line-up did not identify Mr. McGuffie as the individual seen with the gun inside the bar. Only four members of the group were detained and searched. There were at least two other individuals who were in the group and who had the opportunity to remove the gun from the bar and dispose of it in the area where it was found. I find it hard to accept that Mr. McGuffie could have had the gun as he left the bar and then disposed of it at the corner of Frank St and Jack Purcell Lane underneath cars parked there; and without Cst Greenwood seeing him. Cst Greenwood said he never saw him motion as if to dispose of anything. He also said that Mr. McGuffie was only out of his sight for one or two seconds as they turned the corners. Having regard to where the gun was found, I have difficulty accepting that proposition. The evidence shows that any of the remaining members of the group could have removed the gun from the bar after the police arrived. The evidence is virtually conclusive that only four members of the group exited the bar at the front door. Several patrons exited at the rear exit onto Jack Purcell Lane, including the white male who had been seen with the group. That leaves one or two members of the group unaccounted for. It is a clear inference that they also left by the rear exit, but were never identified and searched. I am left with a reasonable doubt. I find Mr McGuffie not guilty of Counts 3, 4, 5, and 6.
Proceeds of Crime
[49] Other than the fact that he was in possession of $600, there was no evidence that Mr. McGuffie’s cash was proceeds of crime. The evidence is insufficient. I find Mr. McGuffie not guilty of Count12.
Possession for the Purpose
[50] Mr. McGuffie was searched and cumulatively 30.2 grams of crack cocaine, and 118.5 grams of powder cocaine were found on his person. That is not in dispute. The evidence is admissible. I am satisfied beyond a reasonable doubt that Mr. McGuffie is guilty of counts 1 and 2.
Breach of Orders
[51] The various orders and prohibitions concerning Mr. McGuffie and drugs, and weapons were admitted. For those flowing from the finding of guilt concerning the drugs, verdicts of guilt are entered. For those flowing from weapons, verdicts of not guilty are entered. Mr. McGuffie was in the bar in contravention of the term of an order, and is therefore guilty of its breach.
Conclusion
[52] In conclusion I find as follows:
a. Count 1 and 2 – Guilty,
b. Counts 3,4,5,and 6- Not Guilty,
c. Counts 7, 8, and 9 –Guilty
d. Count 10 – Not Guilty
e. Count 11 – Guilty
f. Count 12 – Not guilty
Honourable Justice Timothy Ray
Released: April 12, 2013
COURT FILE NO.: 11-G1056
DATE: 2013-04-12
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
PHILLIP FRED McGUFFIE
Defendant
REASONS FOR DECISION
Honourable Justice Timothy Ray
Released: April 12, 2013
[^1]: Charter of Rights and Freedoms.
[^2]: R. V. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353.
[^3]: R v Grant, paragraph 85