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location: publications / books / Justice Behind the Walls / Sector 3 / Chapter 3 The Disciplinary Process at Kent / March 1994: Mohamoud and Blair Cases -- The Importance of Counsel

Mr. Blair then gave evidence on his own behalf. Mr. Blair was asked by Mr. Beatch whether he had ever been given a permit for the scissors. He responded that when he was at Mission Institution he had a permit because he did art work, which involved cutting up paper and cardboard. When asked how did the scissors get from Mission to Kent, he explained that when he was involuntary transferred from Mission he was told to pack up his cell effects, which he did, and he placed the scissors in one of five boxes. When he arrived at Kent he went down to A&D (Admissions and Discharge) and was given the same five boxes, which he brought back to his cell and unpacked. The scissors were still there. He said he was somewhat surprised because Kent was a maximum-security institution, but since he understood that the staff at A&D went through all of his stuff to determine what was permitted and what was not, he assumed that it was legitimate for him to have the scissors at Kent for the purpose of his hobby work. He also said that this was the first time he had served any time in a maximum-security institution. He acknowledged that he did not have a permit from Kent. He was asked to explain how the scissors came to be broken. He said that this happened the evening before his cell was searched. He had been cutting some speaker wire, to be used as an antenna for his television, when the blade broke. He placed both parts of the scissors in his drawer. His intention had been to turn them in and ask for a replacement pair.

Mr. Beatch then made his submissions. His main point was that the evidence showed a reasonable doubt as to whether the scissors were contraband within the meaning of the CCRA. The only reason the officers thought that they were contraband was that they had a broken blade and Mr. Blairís evidence was that this had happened the night before, and the scissors were not being used as a weapon. This was reinforced by the fact that the evidence also established that the scissors had not been hidden, which they certainly would have been had Mr. Blairís intention been to use the scissors as a weapon.

Mr. Walters found Mr. Blair not guilty on the ground that there was a reasonable doubt whether the scissors were contraband within the meaning of the Corrections and Conditional Release Act s.2. He carefully went through the various subsections of s.2. He found the scissors were obviously not "an intoxicant," "explosive or a bomb," or "currency" within subsections (a), (b) or (d). He also found that the scissors were not a "weapon" in their original form within subsection (b), and while they had been "altered so as to be capable of killing, injuring or disabling a person," the evidence of Mr. Blair, which was not contradicted, was that they had been used for hobbies and had broken in the course of cutting speaker cable. The only other basis upon which they could be contraband was subsection (e) which includes "any item not described in paragraphs (a) to (d) that could jeopardize the security of the penitentiary or the safety of persons, when that item is possessed without prior authorization. Mr. Walters said that assuming that the broken scissors did fall within subsection (e), in that they could jeopardize the security of the penitentiary or the safety of persons, they would still have to be possessed without prior authorization. The evidence of Mr. Blair regarding the issuance of a permit at Mission Institution, coupled with the fact that his effects had been given to him at Kent and had included the scissors, raised a reasonable doubt as to his having at least implicit authorization for possession of the scissors at Kent.

The cases of Mohamoud and Blair in conjunction reflect the important role played by counsel. It is possible that Mr. Blair might have been acquitted in any event by Mr. Walters, but much would have depended upon how the evidence came out. For example, Mr. Beatch was able to establish through cross-examination that the scissors were not hidden. That question may not have been asked by Mr. Blair and would not necessarily have been asked by Mr. Walters, who might have inferred from the fact that they were under some papers that they were hidden. This would no doubt have coloured his view of Mr. Blairís purpose in having them and might have cast a shadow of doubt over his explanation as to how they became broken. It is also less likely that Mr. Walters would have gone through the contraband definitions so carefully had counsel not been present. In other words, counselís cross-examination and submissions brought out the weakness of the institutionís case and carefully marshalled the elements of Mr. Blairís defence. In sharp contrast, in the case of the unrepresented Mr. Mohamoud, he had only a limited understanding of the proceedings and the sentence was more severe than it would likely have been had he been legally represented.

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