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November 1993: The Gordon Case -- Whose Brew?

Mr. Gordon found himself in Mr. Waltersí court on a charge of possessing contraband and pleaded not guilty. Officer Randle testified that while doing routine security rounds, he had detected the odour of brew on the range. The smell seemed to be coming from Mr. Hartmanís cell. The cell was locked, so he had the officer in the bubble "crack" the cell. When the cell door opened, the odour of brew was very strong. As the officer walked into the cell, he saw Mr. Gordon in an area of the cell not visible through the door window. He asked both Mr. Hartman and Mr. Gordon to leave the cell. He then saw on the floor, next to where Mr. Gordon had been, numerous bags of a brew-like substance. The two prisoners were taken up to segregation. Officer Randle took the brew-like substance to the office, where two samples tested positive for alcohol. He then wrote up an offence report charging both Mr. Hartman and Mr. Gordon with possession of contraband. According to Officer Randle, Mr. Gordon was charged both because he had been in an area in the cell where brew was found and because, on the way up to segregation, Mr. Gordon had made the statement, "Well, you got me this time before I got it on myself." Mr. Walters asked Officer Randle whether there was any odour of brew on Mr. Gordonís breath at this time, and the officer replied, "No, I believe they were in the process of straining the brew." Mr. Walters asked Officer Randle whether he had seen the prisoners straining the brew. He replied that he had not, but that the brew was in two groups, one clear and the other with sediment in it.

Mr. Hartman was then called as a witness. He testified that the brew was his and that he was in the process of straining it when Mr. Gordon came into the cell for a coffee. Mr. Hartman had already been charged, found guilty, and sentenced to 30 daysí segregation suspended for 90 for the offence. That should be the end of the matter, he said, because Mr. Gordon had nothing to do with it; he had simply been in the wrong place at the wrong time. Mr. Gordon then gave evidence that he had had the flu for a week and had just woken up before he went into Mr. Hartmanís cell for coffee. Because of his flu, he could not smell the brew. Mr. Gordon candidly admitted that, had he not been feeling sick, he probably would have drunk the brew, but he came into the cell for coffee and was not there for more than a minute before the officer arrested him.

Mr. Walters acquitted Mr. Gordon, saying he was not satisfied beyond a reasonable doubt that Mr. Gordon was in legal possession of the brew found in Mr. Hartmanís cell. The evidence of Officer Randle did not support any inference of legal possession, which required not only knowledge of the presence of the prohibited substance but also consent and control.

Officer Randle came back into the courtroom, very upset, after he heard about the acquittal. He explained to Mr. Walters how small the cell was and how Mr. Gordon had been literally right on top of the brew and must have known it was there. He asked Mr. Walters what an officer was supposed to do in this situation. Mr. Walters said if there was no evidence that the second prisoner had physical control of the brew (for example, was holding a cup containing brew) or evidence that he was associated with its manufacture or consumption sufficient to infer consent, then probably all the institution could do was charge the prisoner whose cell it was and confiscate the brew.

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