Marijuana found in the car of a former Whitehorse jail guard can’t be used as evidence at his upcoming trial after a judge criticized the jail staff for violating his rights.
However, Ritalin pills found in his pocket are admissible, the judge said.
Michael Gaber is charged with possession for the purpose of trafficking. Prosecutors allege he was smuggling drugs into the Whitehorse Correctional Centre. His trial is scheduled for early November.
According to a decision by Justice Ron Veale, Gaber arrived at the jail for a shift on Dec. 23, 2013 at 2:30 p.m. He was met by the jail’s deputy superintendent of operations, Geoff Wooding, and brought to a boardroom with superintendent Jayme Curtis.
An unnamed inmate had alleged that Gaber was bringing in contraband, the court heard.
Gaber’s pockets were emptied.
“One of the items produced was a condom with what appeared to be pills inside,” Yukon Supreme Court Justice Ron Veale wrote. “While Mr. Gaber initially said they were his, he was unable to explain what they were.”
After that, Wooding took Gaber’s keys and went to the parking lot to search his vehicle.
“Wooding subsequently returned to the boardroom with a vacuum-sealed package containing what appeared to be tobacco and marijuana, as well as a baggie with $5 and $20 bills,” the judge said.
“At this point Supt. Curtis called the RCMP.”
A total of 59 pills were seized. On top of that, 120 grams of marijuana were recovered from Gaber’s vehicle.
The RCMP arrived at 3 p.m. and Gaber was arrested 27 minutes later. That’s when he was read his rights for the first time and asked to speak with a lawyer.
There were multiple violations of Gaber’s rights leading up to that point, Veale ruled.
Tips like this, accusing guards of crime, are not uncommon, the court heard.
One uncorroborated tip is not enough for reasonable grounds to search someone, he said. The jail had the option of doing extra surveillance to get to the reasonable level, but they didn’t.
“Moreover, even if there were reasonable grounds to believe that Mr. Gaber was carrying contraband, they would have had to obtain his consent before searching him,” the judge’s decision states.
On top of that, once they reached those reasonable grounds, jail staff could have called the RCMP earlier and then done a search with a warrant or after an arrest.
Instead, jail officials breached Gaber’s right against unreasonable search, the judge said.
Once the pills were found in Gaber’s pocket, the manager of correctional services, Blaine Demchuk, was brought in.
Jail staff insisted in court that Gaber was not officially detained at any point and that Demchuck was simply brought in to “supervise” him. The judge didn’t buy that.
“The position that Mr. Gaber was not detained after the Ritalin pills were produced is simply not tenable,” he said.
“While it is true that the pills had not been identified, the manner of their packaging and the inability of Mr. Gaber to identify them obviously moved Supt. Curtis and D/Supt. Wooding into a situation where they had reasonable grounds to believe that Mr. Gaber was committing a criminal offence, beyond any institutional infraction that they may have suspected before.”
At that point Gaber should have been informed of his right to a lawyer, the judge said.
“Apart from offending the Charter, they knew or ought to have known that the failure to advise Mr. Gaber of his right to counsel was in explicit contravention of WCC legislation and policy and their persistent investigation in the absence of providing access to a lawyer is reprehensible.”
Both the superintendant and the deputy superintendant told the court they had never detained a person before aside from the inmates already in jail.
That might provide some explanation for the problems, Veale said, “it is, to say the least, disturbing that corrections employees in such senior positions are unaware of the characteristics of a detention.”
Veale said a “flawed institutional policy” led to the illegal search of Gaber’s vehicle without a warrant.
While the judge ruled that Gaber’s rights had been breached multiple times, that doesn’t mean that all the evidence is automatically thrown out.
The pills are still admissible, because the allegations against Gaber represent a “profound breach of public trust” and the pills are critical to the Crown’s case, Veale said.
“Mr. Gaber was an employee at a jail, a place where there are reduced expectations around privacy. As an officer in contact with inmates being housed at the facility, the legislation provides that he can be subject to random and routine searches of his clothing and belongings.”
But admitting the marijuana would “undermine public confidence in the rule of law,” the judge said.
The improper conduct of Curtis and Wooding after the pills were found was serious, Veale ruled.
The breach of his right to counsel and the efforts to deny that Gaber was being detained “reflect a willful disregard or even disdain of the Charter on the part of the investigating officers,” he said.
A spokesperson for the Yukon Department of Justice said they would not be commenting on the case while the matter was still before the court.
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