Crown, police walk fine legal line trying to keep sex offender off streets

What do you do when a man with convictions for attempting to molest children and possession of child pornography is suddenly set free?

What do you do when a man with convictions for attempting to molest children and possession of child pornography is suddenly set free?

Brian Nowazek, 69, was released Monday after a judge dismissed child pornography charges against him because the police and an earlier court ruling violated the man’s rights while gathering evidence.

Yukon RCMP seem to have anticipated the ruling and were quick to act.

Before Nowazek could be released, they obtained another warrant to bring him before a judge.

He was then released on conditions not to go to places where children under the age of 16 can be found and not to use the internet to contact children, until a judge can rule whether those conditions should be kept for up to 12 months.

The procedure, known as a peace bond, is used when there are reasons to believe a person is about to commit an offence.

The application filed by a Yukon RCMP officer alleges there is reason to believe Nowazek will sexually assault children under the age of 14.

Not respecting the conditions can result in a criminal charge.

The procedure can actually be beneficial to offenders, UBC law professor Janine Benedet told the News Thursday.

“(It’s saying) ‘Look, we’re going to give you a chance here, we can see where this is going,’” she said.

Peace bonds are often sought for partners threatening each other, for example.

But in the case of a pedophile, it’s not about protecting one person but all children in the community, Benedet said, which it makes it all the more difficult.

“Now you’re trying to figure out what conditions could possibly prevent that risk and you need to impose them immediately,” she said.

In 1992, Nowazek was convicted of the attempted molestation of a child and soliciting sex from a minor in Arizona.

Even the peace bond process has its limits.

Nowazek was put on conditions Monday but the hearing to determine whether a peace bond should be imposed hasn’t taken place yet.

On Monday Nowazek’s lawyer raised concerns about the evidence used to bring the peace bond.

David Tarnow told the News that with his client locked up for the past two years, it’s not clear what fresh evidence the RCMP could have to justify their concerns.

On top of the multiple convictions for crimes against children, Nowazek doesn’t seem to have completed any sort of effective treatment.

At a July 2014 hearing to seek a peace bond against Nowazek, Crown prosecutor Noel Sinclair told the court that a territorial judge had a number of “difficulties” and frustrations with Nowazek’s engagement in the sex offender treatment program.

That was after a 2009 conviction for possessing child pornography.

Sentencing judge Karen Ruddy noted at the time that his previous convictions made the case particularly troubling.

“From this disturbing pattern of behaviour one can only conclude that Mr. Nowazek poses a threat to public safety and, in particular, the safety of children,” Ruddy wrote in her decision.

“Mr. Nowazek’s extensive collection of child pornography, numbered in the thousands, involved children as young as infants and included images in all but the most serious of the levels of child pornography … with only depictions of bestiality and sadism being absent.”

It’s not clear whether Nowazek ended up completing the sexual offender treatment program offered at the Whitehorse Correctional Centre.

But even if he did, length of stays in provincial and territorial facilities are too short for effective programming to take place, said Liam Ennis, a forensic psychologist at the University of Alberta.

“(Those) facilities are not staffed to run those programs,” he said.

“(The programs) tend to be quite superficial and brief.”

A moderate intensity program will require 10 to 14 hours of group therapy per week for four to five months, he said.

Treatment has shown to be effective, decreasing recidivism by 30 to 50 per cent, he noted.

Most sex offenders are at a lower risk of re-offending than other inmates.

But a minority of them become repeat offenders, requiring intensive treatments.

“Unfortunately, these guys, they don’t get the sentences they ought to get (in order) to get the necessary intervention because they have to reoffend a couple times to get a heavy enough sentence to do that,” Ennis said.

In Nowazek’s case, he received 31 months in jail in 2009, but because of credit for pre-trial custody, he ended up receiving time served.

Paul Fedoroff, director of the Sexual Behaviors Clinic at the Royal Ottawa Mental Health Centre, said treatment works best when the offender agrees to it and when it happens outside of jail.

“If the aim to treatment is to help them to develop normal healthy lifestyles, it’s tough to do that when they’re in the artificial environment of custody,” he said.

But when an offender refuses treatment, and a peace bond can’t be used, the courts are left with few options.

An application to have an offender designated a long-term offender can be brought, Benedet said.

If successful, it allows the court to impose a supervision order with conditions for up to 10 years.

The Crown can also seek an application for dangerous offender status. In that case the offender is locked up indefinitely or until the National Parole Board is satisfied the offender no longer poses a threat to the public.

But it requires at least three convictions for designated violent or sexual crimes.

In Nowazek’s case, it’s not clear whether the past convictions in the U.S. could be used for such an application.

He is scheduled back in court today to set a date for the peace bond application.

Contact Pierre Chauvin at pierre.chauvin@yukon-news.com

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