The Crown felt it had no choice but to drop charges of cocaine possession and drunk driving against former Conservative MP Rahim Jaffer in favour of a guilty plea on a lesser charge, due to how police handled the case, CBC News has learned.
According to sources close to the case, police made two fateful decisions: repeatedly denying Jaffer access to his own lawyers and a strip search after he was pulled over on a rural road on Sept. 11 in the southern Ontario community of Palgrave, northwest of Toronto.
In early March, Jaffer pleaded guilty to the lesser charge of careless driving — incurring a $500 fine, demerit points on his driver's licence and a voluntary $500 charitable donation — in a deal that sparked public outcry and questions over whether justice had been served.
A veteran Ontario Provincial Police constable pulled Jaffer over at 12:45 a.m. in the early hours of a Friday. She had clocked his grey Ford Escape driving 93 km/h in a 50 km/h zone.
As noted in an agreed statement of fact, Jaffer acknowledged having two beers in the prior two hours when asked about the smell of alcohol on his breath by OPP Const. Kim Stapleton when he was pulled over. A so-called "blow test," which is used to determine whether a breathalyzer is necessary, came up positive.
As a result, Stapleton handcuffed the former rising star of the Conservative Party and placed him in her cruiser. According to sources, she then went back to the Ford Escape and grabbed Jaffer's sport jacket from the passenger seat.
She noticed a bag inside one of the pockets — what would later be determined to be about a gram of cocaine, a small amount but a banned substance for which possession is a federal crime.
Calls to lawyers
At the nearby OPP detachment in Caledon, police made their first fateful decision.
As required, Jaffer was given the opportunity to exercise his legal right to contact a lawyer before submitting himself to a breathalyzer test.
He tried to contact two lawyers in Calgary, but couldn't reach them and left a message. Police then suggested he call a 1-800 line offering 24-hour legal aid.
When he called, he received their typical advice: Take the breathalyzer test. By law, police must administer the test — which can take about 20 minutes and involves two samples — within two hours after pulling over a driver.
Midway through the test, one of Jaffer's Calgary lawyers called the detachment several times but was told he must wait because the breathalyzer was being administered, sources say. The second lawyer also returned Jaffer's call in that time and was told it was too late.
'It's hard to imagine a good reason they wouldn't let the lawyer talk to the suspect.' —Scott Cowan, Toronto defence lawyer
While Jaffer did speak to legal aid, legal experts say he should have been given the opportunity to speak to counsel of his choice, especially if there was time for the breathalyzer test to be restarted.
"It's hard to imagine a good reason they wouldn't let the lawyer talk to the suspect," veteran Toronto defence lawyer Scott Cowan, who was not involved in the case, told CBC's chief correspondent Peter Mansbridge in an interview. "As long as the suspect is being diligent, there's no reason not to give him a meaningful opportunity to speak to his lawyer."
Both Jaffer's breathalyzer tests registered slightly over .10, above the legal limit of .08 blood-alcohol concentration.
Strip search questioned
Shortly after the breathalyzer, police made another key decision: to strip search the former MP, an act Cowan argues wasn't "defensible at all" in the Jaffer case.
For police to justify a strip search, they must have "reasonable grounds" to believe someone in custody is hiding something illegal or something that could hurt themselves or the police.
The "highly intrusive, invasive procedure" that can involve full nudity and opening up body cavities should only be undertaken when "absolutely necessary," Cowan said, adding it is typically used on those who have criminal records, have committed violent acts or could be a danger to others in a jail cell.
"Here it seems there is no reason even to think that, no identifiable reason to call even the existence of a potential threat," said Cowan, noting Jaffer had no previous record, was apparently co-operative and was being released from jail, thereby posing no danger to other inmates. Nothing was found in the strip search.
It was shortly before dawn that Friday when the former MP was released from the Caledon detachment — his driver's licence suspended and criminal charges of speeding, drunk driving and drug possession laid against him.
On March 9 in an Orangeville court, Crown attorney Marie Balogh stated that there "was no reasonable prospect of conviction." The Crown dropped the federal criminal charges and Jaffer plead guilty to a less serious provincial charge of careless driving.
As a result he paid a $500 fine, made a $500 contribution to a charity, received six demerits on his driver's licence, but most importantly he walked away with no criminal record.
"Child's play compared to a criminal conviction and a year-long driving prohibition," Cowan said of the punishment, which may have cost Jaffer up to $5,000 in car insurance. But he escaped a year-long driving prohibition.
Plea bargains common: expert
Sources tell CBC that the Crown took the deal to the OPP as a courtesy, hoping the force would agree to it as well, but the police wanted a trial.
'You can't run trials in relation to everything. It's a high-stakes game for both sides.' —Sue Chapman, former Crown attorney
Even though the plea bargain went ahead, garnering swift condemnation from the public and federal opposition parties, experts say such deals are a necessary part of the court process.
Sue Chapman, a former Crown attorney, said that while the public is automatically suspicious of deals, about 95 per cent of all cases are concluded that way.
"And the system would grind to a halt if that weren't the case," said Chapman, who was not involved in the Jaffer case. "You can't run trials in relation to everything. It's a high-stakes game for both sides. [Plea bargains are] are essential for the system."