On April 12, 2013, Philippe McGuffie was convicted of possession of cocaine for the purpose of trafficking in a case reported as R v McGuffie, 2013 ONSC 2097. Although the police arbitrarily detained McGuffie, breached his right to counsel and violated his right to be secure against unreasonable search and seizure, Justice T.D. Ray of the Ontario Superior Court of Justice admitted the cocaine seized from him into evidence at trial. McGuffie appealed. Here’s the story.

On December 18, 2011, the Ottawa police went to the Union Station Bar on Elgin Street in response to a complaint that some patrons were passing a handgun around. Cst. Paul Greenwood caught up to McGuffie outside the bar and detained him for public safety reasons and because he suspected that he had the gun. McGuffie said he knew nothing about it. Cst. Greenwood handcuffed him and did a cursory pat down search. Nothing turned up so Cst. Greenwood put him in the rear of another officer’s cruiser and went back to the bar to help search for the firearm. He did not tell the other officer that he was concerned about McGuffie being armed.

Cst. Greenwood came back to the cruiser about a half hour later. He decided to do a more thorough “safety search” for the gun. He found a packet of cocaine in McGuffie’s shirt pocket and some marihuana and cash in a pants pocket. He arrested McGuffie for trafficking and advised him of his right to counsel almost forty minutes after the initial detention. McGuffie said he wanted to talk to a lawyer. Cst. Greenwood took McGuffie to his vehicle and drove to the police station. They arrived about a half hour after the arrest (over an hour since the initial detention). Cst. Greenwood told the officer in charge that he wanted to conduct a strip search for the gun and more drugs even though he knew that the firearm in the bar had been found. Nothing was said about McGuffie’s right to call a lawyer.

McGuffie fought the strip search. Justice Ray, at trial, described the police conduct this way, at para. 33: “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.” When a small quality of cocaine sewn into McGuffie’s underwear was found, he reached behind with the handcuffs on and pulled another packet of cocaine from between his buttocks.

On May 13, 2016, the Ontario Court of Appeal released its opinion reported as R v McGuffie, 2016 ONCA 365. The drugs were excluded from evidence under s. 24(2) of the Charter of Rights. An acquittal was entered. Here is what Justice D.H. Doherty said, for a unanimous court, about the multiple breaches of McGuffie’s constitutional rights.

1. Detention

The police cannot detain suspects indefinitely while they carry out their investigations. Justice Doherty concluded, at para. 39: “Constable Greenwood was justified in briefly detaining the appellant to question him about his knowledge of the handgun. However, after that brief detention, he was required to release the appellant unless he had grounds to arrest him. There is no suggestion that he had the grounds to arrest the appellant. Constable Greenwood was therefore required to release the appellant. Instead, he imprisoned the appellant while he pursued his investigation elsewhere. In doing so, he completely disregarded the appellant’s right to liberty and rendered him vulnerable to further police investigation. The appellant’s right to be free from arbitrary detention was infringed by Constable Greenwood when he confined the appellant in the back of Constable McDonnell’s cruiser.”

2. Right to Counsel

The purpose of the right to counsel in Charter s. 10(b) is to ensure that individuals have access to legal advice when they are deprived of their liberty by agents of the state that leaves them vulnerable to state power while in a position of legal jeopardy. Justice Doherty emphasized that the purpose animating the right arose in full force in this case, at para. 44: “The appellant was under the control of the police. He was effectively imprisoned from the moment he was handcuffed and placed in the cruiser. Constable Greenwood took advantage of that control to subject the appellant to an unconstitutional detention and two intrusive unconstitutional searches, both of which yielded incriminatory evidence. The appellant was in serious legal jeopardy. He needed legal advice. More importantly, he was constitutionally entitled to it. The conduct of the police, and specifically Constable Greenwood, ensured that he would not receive that advice until after the police were done with the appellant and had the evidence they needed to convict him.”

3. Search and Seizure

There were three searches that engaged McGuffie’s privacy interests. Justice Doherty described them, at para. 50: “The initial pat down search of the appellant, the second more intrusive search of his person beside the cruiser, and the very intrusive strip search at the police station all struck at the core of the appellant’s most basic right to personal privacy.” The pat down search was found to be lawful as a reasonable and justified incident of McGuffie’s investigative detention. But the second search by the cruiser, purportedly a safety search, and the strip search at the police station were serious breaches of McGuffie’s privacy interests protected by Charter s. 8. Justice Doherty put it this way, at paras. 54 and 58:

“The police power to conduct a “safety” search as described in MacDonald assumes that the officer is engaged in the execution of their lawful duty: MacDonald, at paras. 33-35. Constable Greenwood was not engaged in any lawful exercise of his duty when he confined the appellant in Constable McDonnell’s cruiser. The appellant was unlawfully detained and remained so when Constable Greenwood returned from the bar and decided to conduct the second search. The further intrusion upon the appellant’s privacy by way of the second search of his person could not be justified by Constable Greenwood on the grounds that he reasonably suspected that his safety was in jeopardy. If there was any danger to Constable Greenwood when he conducted the second search, it flowed directly from his unlawful detention of the appellant and not from anything Constable Greenwood was doing in the lawful exercise of his duty. In my view, the police cannot, through unlawful conduct, create a circumstance said to justify a safety search of an individual.

At trial, it was not argued that the strip search itself was unreasonable and contrary to s. 8. It was argued that the manner in which the strip search was conducted violated s. 8. The trial judge concluded that the manner in which the strip search was conducted unreasonably compromised the appellant’s physical integrity and his personal privacy. The former occurred when Constable Greenwood gratuitously assaulted the appellant during the efforts to subdue him. The latter occurred when the police failed to take reasonable steps to minimize the inherently humiliating and degrading impact on the appellant of the strip search. On the authority of Golden, at paras. 99-103, the manner in which the police strip searched the appellant violated his rights under s. 8 of the Charter.”

4. Conclusion

Justice Doherty concluded, at paras. 73-4, that Justice Ray had allowed the seriousness of the charge to overwhelm the exclusion analysis and adopted what Justice S.D. Frankel said in R v Ahmed-Kadir, 2015 BCCA 346, at para. 111: “The importance of maintaining respect for Charter rights and ensuring that the justice system is above reproach outweighs the collective cost of his acquittal.” But that is not the end of the story.

I wondered how a Canadian trial judge, schooled in the Charter of Rights and educated in the common law, could have come to any other conclusion. So I went back to the ruling on the exclusion motion where Justice Ray relied upon the mandatory minimum punishment, as indicating Parliament’s view of the seriousness of the office, that must now be unconstitutional after the Supreme Court of Canada’s opinion in R v Lloyd, 2016 SCC 13. Justice Ray said this, at para. 47: “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.” Now, you might well ask, since when has the absence of systemic police misconduct supported admissibility? Evidence of a pattern of abuse tends to support exclusion; but the absence of such evidence does not tend to support admission although it might arise in the context of the good faith doctrine where the police acted pursuant to a legitimate policy. (See: R v Grant, [2009] 2 SCR 353 per McLachlin C.J., at paras. 75 and 124)

Even still, the pejorative judicial attitude to evidence suppression does not end there. Justice Doherty said this, at para. 83: “…[T]he police conduct demonstrates a blatant disregard for the appellant’s constitutional rights. That conduct all but negated several of the appellant’s Charter-protected interests. The court can only adequately disassociate the justice system from the police misconduct and reinforce the community’s commitment to individual rights protected by the Charter by excluding the evidence. In doing so, the court acquits a person who is clearly guilty of serious criminal offences. In my view, the long-term interests of the due administration of justice require the exclusion of the evidence. This unpalatable result is a direct product of the manner in which the police chose to conduct themselves.”

But, Justice Doherty does not tell us why that is an unpalatable result. Is it? Canadians gave voice to their political will when the Charter of Rights was entrenched in the constitution in 1982. A new deal was struck between the citizens and the governments that serve them – embolded by a commitment to principles higher than the clamour of the Conservative Party at the court house doors of the nation. It is expressed in s. 52: The Constitution of Canada is the supreme law of Canada. McGuffie’s acquittal is an example of that supremacy. It is an example of that commitment – one that could only breathe with the exclusion of the poisoned evidence. There is nothing unpalatable about that.