A former correctional officer accused of smuggling drugs into the Whitehorse jail is in court this week, arguing his rights were violated when jail officials searched and detained him.

Michael Gaber, 46, is charged with possessing marijuana and the stimulant methylphenidate for the purpose of trafficking.

He was arrested on Dec. 26, 2013, after he showed up for a shift at the Whitehorse Correctional Centre.

Gaber has pleaded not guilty to the charges and has not yet stood trial.

Last week, Gaber’s lawyer, David Tarnow, filed an application under the Canadian Charter of Rights and Freedoms, alleging that the way jail officials seized evidence that day violated his human rights.

On Monday, a hearing began in Yukon Supreme Court that focused on the Charter application. Tarnow is seeking the evidence be deemed inadmissible at his client’s trial because of how it was obtained.

Three jail managers have testified so far.

Blaine Demchuk, a manager of correctional services, said he received a tip from a confidential informant that Gaber and another correctional officer were bringing contraband into the jail.

Contraband includes drugs, alcohol, weapons and cell phones.

When Gaber showed up for his next shift on Dec. 26, both the jail’s superintendent, Jayme Curtis, and Geoffrey Wooding, the deputy supervisor of operations, asked him to come into a boardroom.

The other CO never showed up to work after that, Demchuk said.

Wooding and Curtis said they told Gaber they had information he was bringing in contraband, which he denied.

Gaber then emptied his pockets and pulled out some pills, wrapped in a condom and taped.

At first, he said they were his personal pills, both Wooding and Curtis said in their testimony. But he was unable to tell them what kind of pills they were.

“It was wrapped in a manner I’d seen before used by inmates to conceal contraband,” Wooding said.

They asked if they would find contraband if they searched his car, and he said yes.

Wooding picked up his keys off the table and went out to the parking lot.

Demchuk was asked to come into the boardroom in the meantime, to keep an eye on the drugs, he said.

In Gaber’s car, Wooding found two vacuum-sealed packages and a Ziploc bag of cash, including several $20 bills, which he brought back into the boardroom, he said.

Wooding and Curtis could see tobacco in one package and what appeared to be marijuana in the other.

Gaber said he was paid to bring them into the jail, they testified.

Curtis added that Gaber said he had been doing this for about a year, and was bringing in the drugs for three male inmates.

He was picking them up from a Crestview trailer park and received $400 per package, Gaber said, according to Curtis.

The superintendent asked Gaber to start writing down this information.

Then he called the RCMP, who arrested Gaber.

Curtis said there had been concerns around that time about contraband getting into the jail.

At one point, staff found a large quantity of marijuana in an inmate’s cell. So when they received this tip, they were quick to investigate, he said.

Curtis did not ask Gaber for consent to search him.

“Things were happening very fast,” he said. It was the first time he’d ever searched a correctional officer suspected of bringing in contraband, he said.

“It didn’t cross my mind to arrest him,” said Curtis, adding that it also didn’t occur to him to ask Gaber if he wanted to contact a lawyer.

Both he and Wooding said they never detained Gaber, so they didn’t read him his rights before police arrived, as must happen when someone is arrested or detained.

Tarnow argued they did detain the then-guard – had he tried to get up and leave, they wouldn’t have allowed him to, he suggested.

Both Curtis and Wooding said Gaber didn’t ask to leave, but if he had, they would have had to decide whether to detain him.

Tarnow further argued that Gaber’s rights were violated because they never told him he had the right to a lawyer.

“You knew this guy had the right to counsel, and it got in your way,” Tarnow said to Wooding, who denied it. “This fellow wasn’t going anywhere, was he?”

“He was an employee,” the witness said. “He was there on paid time. At no time was he told he was detained .... He was never told he couldn’t leave.”

Tarnow questioned Demchuk about why he was asked to come into the boardroom. He noted the man’s size – 6’4” tall, weighing about 300 pounds.

“As long as you were there, he wasn’t leaving the building,” Tarnow said.

“Probably not,” Demchuk replied.

Both Wooding and Curtis testified they have the right under the Corrections Act to conduct routine searches of staff and visitors to the jail. They also have the right to search vehicles on the property – a sign in the parking lot advises drivers of this.

Wooding said they had “ample reasonable grounds” to search him, given the nature of the tip.

The identity of the informant has not been revealed in court.

Demchuk said the male inmate requested canteen privileges in exchange for giving up the information.

Demchuk initially refused, but after speaking with his supervisors, was told to make the deal, he said.

The inmate named two guards, and said they would be bringing in weed, tobacco and a cell phone.

According to the Charter, if a judge finds that evidence was obtained in a way that breached an accused’s rights, that evidence should be excluded if “the admission of it in the proceedings would bring the administration of justice into disrepute.”

The hearing continued this afternoon.