Defence and Crown lawyers made their final submissions on Wednesday before Yukon Supreme Court to decide whether a former jail guard accused of running drugs had his rights violated.
Michael Gaber was arrested on December 26 after jail officials seized drugs from his belongings.
He was charged with possessing methylphenidate, known as Ritalin, and marijuana for the purpose of trafficking.
His lawyer claims that his rights were violated when he was questioned in a boardroom and then searched.
David Tarnow, his lawyer, argued the drugs seized and Gaber’s statements should be excluded, as they were the result of Charter rights violations.
The trial hasn’t started yet, as the judge first needs to rule what evidence is admissible.
Tarnow’s submission focussed on the fact Gaber wasn’t read his Charter rights when Superintendent Jayme Curtis brought him in a boardroom to question him.
Gaber was told his belongings were going to be searched and asked if he had contraband on him. He pulled out pills wrapped in a condom, and gave his car keys.
Tarnow argued Gaber was detained then, even if he wasn’t officially told about it.
Tarnow referred to the testimony of one of the correctional officers present, Blane Damchuck, who told the court that Gaber was “probably not” going to leave the room at that time. Tarnow also asserted that given Damchuck’s size, six foot four and over 250 pounds, Gaber wasn’t going anywhere and was de facto being detained.
A confidential informant tipped off correctional officers that two guards were going to bring contraband in, but this information wasn’t reliable enough to be considered a reasonable ground to trigger the search, Tarnow added.
He also pointed to a 2010 case involving Geoffrey Wooding, now the Whitehorse Correctional Centre’s deputy superintendent, in which he was tasked to investigate an inmate’s complaint against the Surrey Pretrial Services Centre. Wooding was working for the Yukon’s Investigation and Standards Office, or ISO, at the time.
The judge noted “a degree of collaboration with the police and SPSC that appears at odds with the responsibilities of the ISO.”
In an email to jail officials, Wooding offered the following assurance: “Just so you know, it will not be quoted, and I expect it will be destroyed prior to closing the complaint file to eliminate FOI (freedom of information) concerns.”
During his testimony before Yukon Supreme Court, Wooding admitted he made a mistake back then.
Tarnow suggested Wooding and Superintendent Jayme Curtis colluded to prepare their testimony, referring to similar wording both used to answer his question about whether his client had been illegally detained. Both men denied this accusation during their testimony.
But even if a Charter violation is found to have happened, a judge won’t automatically exclude evidence. The Supreme Court of Canada set out a three-part test looking at the seriousness of the infringement, the impact of that breach on the accused and society’s interest in having the case heard.
“Charter breaches must not be rewarded,” said Tarnow, urging the court to take into account the long term effect of non-compliance with Charter rights.
“Officers in WCC have no knowledge or regard for Charter responsibility,” he said, calling it “willful blindness.”
The expectation of privacy at a correctional centre, like at a border crossing, is very limited, countered Crown lawyer Ludovic Gouaillier.
Rather than the “Charter-free” zone catchphrase used by Tarnow, Gouaillier preferred to use the term “Charter-lite.”
Curtis was investigating an employee, as superiors can do, and sat down with him to question him.
Quoting the Yukon Corrections Act, Gouaillier said correctional officers are allowed to conduct random searches, and it doesn’t require reasonable grounds.
The broad definition of detention defined by the Supreme Court of Canada doesn’t apply here, he said, given that it was a workplace investigation.
At the time, Curtis didn’t know what he was going to find, and not all products considered contraband are illegal under the law – for example, cellphones are banned for inmates only, Gouaillier contended.
He also noted that the Corrections Act was at the time illogical, with paragraphs of the same section contradicting itself.
Tarnow had argued the Corrections Act required reasonable ground for staff searches. But even if there was a violation, the evidence exists independently of the breach, Gouaillier told the judge, and the violation would have been minimal, as Gaber wasn’t physically searched.
Evidence should be only be thrown out if it was a confession, said Gouaillier.
“In my submission, the conduct of the correctional officers was not a deliberate breach of Charter rights,” concluded Gouaillier.
Contact Pierre Chauvin at