Lawrence Forstner, Criminal Lawyer in Oshawa, Expert Qualifications and Specialized Training:
Former Crown Attorney; Former Probation & Parole Officer; Ontario Domestic Assault Risk Assessment (ODARA), Sex Offender Risk Assessment, Strategic Initiatives in Community Supervision (STICS), Sex Offender Relapse Prevention, Substance Use / Anger Management Group Leader/ Trainer. ( https://ca.linkedin.com/in/forstnerlaw )
Having discovered that he was going to be brutalized like this, Mr. McGuffie became more 'co-operative' and the police found more drugs that he had hidden on him. Only then, some 90 minutes after his initial detention was the accused allowed to talk to counsel. The trial court and the appeal court found that during that 90 minutes, the police "repeatedly" violated the accused's constitutional rights. Ultimately, the appeal court listed the Charter Rights violations as being under sections 8 (illegal search), 9 (unreasonable detention), and 10 (rights to counsel.
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This search turned up a quantity of cocaine in the accused pocket. Until this moment, the accused had not been advised of his right to counsel, something that is required as soon as someone is detained for more than a "brief investigative detention" where police and public safety issues can take precedence over the explanation to the accused of his rights. Some 40 minutes after all safety concerns were alleviated, and an illegal search had taken place, the accused was finally given his rights to counsel. But that's not all.
More than an hour later, and after the police had already recovered from somebody else the gun that initiated the call, the accused was subjected to a strip search, on the shaky premise that he may still be concealing a gun. By this time, the accused had repeatedly told the police that he wished to exercise his right to speak with a lawyer, but that request had been ignored. Understandably, the accused resisted being strip-searched. So, what did the police do? Compounded bad decisions with worse decisions. The Court of Appeal for Ontario (paragraph 23 of the decision) quoted the trial judge's view of what an officer did to "assist" the search effort:
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The Court of Appeal (at paragraph 44) gave a stark assessment: "[Mr. McGuffie] was effectively imprisoned from the moment he was handcuffed and placed in the cruiser. [The officer] took advantage of that control to subject [the accused] to an unconstitutional detention and two intrusive unconstitutional searches, both of which yielded incriminatory evidence. The [accused] was in serious jeopardy. He needed legal advice. More importantly, he was constitutionally entitled to it..."
This case illustrates how vulnerable citizens are when they come under police control. The case tells us exactly what the police are and are not allowed to do during a detention. Later it goes on to talk about how the Judge is supposed to interpret those rights to determine if evidence should be excluded. Even when Judges get it wrong the first time, the law, your lawyer, and the Court of Appeal can lead you to a better outcome. To read a highlighted copy of the case, follow this link: R v McGuffie. Forstner Law in Oshawa ON., hopes that this 'lesson' has given you a better understanding of your rights. Call 289 316 2573 for a free consultation on your case. And by the way, the evidence was excluded, the client set free.
"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 bein in his [police] custody."
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"I had a belief that he possibly had a firearm on him..." said the officer on the stand. That is why he reasoned he had the justification to detain Mr. McGuffie. The officer then handcuffed the accused and performed a cursory search, finding no hand gun. If the officer had then released the man, we would not be discussing this case. However that's not what the officer did. In fact, the officer placed the accused in the back of a police cruiser and went off to continue investigation of other people. He had no reasonable and probable grounds to arrest Mr. McGuffie at this point.
Even if the officer was justified in holding the accused for what is known as a "brief investigative detention" in order to determine if there are circumstances affecting safety and the protection of potential evidence, these detentions are meant to be very brief. At the point the detention moves from "brief" to longer, the police must give rights to counsel, then arrest (with good grounds) or release.
Yet, over 30 minutes later, without having any grounds to continue the detention, or any reason to suspect that the client now had a hand gun on him, the officer conducted a far more detailed search.