Pubdate: Tue, 17 May 2016
Source: Ottawa Citizen (CN ON)
Copyright: 2016 Postmedia Network Inc.
Author: Andrew Seymour
Page: A2


An accused drug dealer who should be guilty of trafficking cocaine and
crack has instead had his convictions tossed out because of repeated
and serious breaches of his rights by the Ottawa police, Ontario's top
court has ruled.

Ottawa police found drugs stashed in Philip McGuffie's shirt pocket,
sewn into his underwear and hidden between his buttocks during a pair
of searches in December 2011 after they received reports that a group
of men were passing around a handgun in an Elgin Street bar.

But a panel of judges from Ontario's Court of Appeal found that a
judge's decision to convict him of two counts of possessing cocaine
for the purpose of trafficking couldn't stand. They ruled that the
officer who arrested McGuffie had violated his charter rights
repeatedly by arbitrarily detaining McGuffie for half an hour without
reasonable grounds to arrest him, by not allowing him to call a lawyer
when he should have, by searching him illegally and by intentionally
hurting him by standing on his ankles when McGuffie resisted a strip
search in the cellblock.

"This was not a situation where the police conduct slipped barely over
the constitutional line," wrote Justice David Doherty on behalf of the
appeal court.

"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," wrote Doherty. "This unpalatable result is
a direct product of the manner in which the police chose to conduct

While McGuffie's initial detention on the street was lawful, given
that a doorman at the bar identified McGuffie as one of the men at the
table with a gun, Const. Paul Greenwood should have let him go after a
first cursory pat-down search revealed nothing that connected him to
the gun in the bar, the appeal court found. Instead, Greenwood kept
McGuffie in handcuffs in the back of a police car while he helped
search for the gun.

"The police cannot use investigative detention as an excuse for
holding suspects while the police search for evidence that might
justify the arrest of a suspect," the appeal court found.

The failings of the Ottawa police went beyond the actions of just one
officer, the appeal court found.

None of Greenwood's superiors expressed any concern about McGuffie's
rights to contact a lawyer before the strip search. The court also
found that whoever was in charge of the strip search seemed
unconcerned about the excessive use of force and the failure to
minimize the intrusiveness and humiliation that comes with a strip
search when they allowed additional officers to be present and left
the door to the room open.

McGuffie's lawyer, Howard Krongold, said it was "pretty clear" the
police were not well-trained to understand the limits of their authority.

"He should have been on his way within about two minutes of the
initial interaction, not getting strip searched 60 or 90 minutes
later," Krongold said.

"Instead of engaging in a careful and limited exercise of their
powers, the police basically did whatever they wanted," he said.

The appeal court decision overturned the trial judge's decision to
allow the drugs into evidence because drugs like crack and cocaine
represent a "serious blight" on the community.

McGuffie, who was accused by that judge of having a "virtually
continuous lifestyle of criminal activity," received a reduced
seven-and-a-half-month sentence, which he has already served, as a
result of the police misconduct.

He has now been found not guilty of the two drug convictions as well
as breaches of probation and bail conditions as a result of the appeal
court decision.
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