A former jail guard at the Whitehorse Correctional Centre who was charged with possessing drugs for the purpose of trafficking says his rights were violated, Yukon Supreme Court heard this week.
Michael Gaber was charged on December 26 with possessing methylphenidate, also known as Ritalin, and marijuana for the purpose of trafficking.
The actual trial hasn’t started yet as the court is hearing about the admissibility of some evidence.
Gaber’s lawyer, David Tarnow, filed a Charter application, arguing that evidence for the case was gathered by breaching his clients’ rights under the Charter of Rights and Freedoms, and should therefore be excluded from the trial.
The court heard from Geoffrey Wooding, the deputy superintendent of operation at the jail, Jayme Curtis, the superintendent, and Blane Damchuck, a manager of correctional services.
Gaber arrived at WCC on December 26 at around 2:30 p.m., and was called to a boardroom with Curtis and Wooding.
Curtis said he informed Gaber he had information about him potentially trying to smuggle contraband in the jail.
Gaber denied twice, and then after told his belongings were going to be searched, he emptied his pocket, revealing pills wrapped in a condom, Curtis said.
Curtis then told Gaber his car would be searched. Curtis called in Damchuck to be in the boardroom while Wooding searched the car. Wooding came back with two vacuum-sealed packages, one containing tobacco and one that looked like marijuana. There was also a Ziploc bag with cash in it, according to Wooding’s testimony.
Gaber admitted he was paid to bring in the packages when asked, said Wooding, and the RCMP was then called.
When police officers arrived, Gaber was read his rights and brought to the police station.
In his Charter application, Tarnow argues the packages, pills, as well as statements by RCMP officers and jail officials should be dismissed.
He spent much of Monday and Tuesday’s proceedings cross-examining the Crown’s witnesses. At issue was whether Gaber had been unlawfully detained in the boardroom and whether he should been read his rights when jail officials started questioning him.
“Why didn’t you tell him he had a right to speak to a lawyer?” Tarnow asked Wooding.
“We were conducting an investigation, he was an employee on paid time,” answered the jail guard.
“Would Gaber have been allowed to leave (when in the boardroom)?” asked Tarnow.
“We had the power to detain him,” said Wooding, adding that had Gaber tried to leave the guards would have had to make a decision about whether to detain him or not.
“You sir, are the champion of bureaucratic speech!” shouted Tarnow.
Wooding argued the signage in the WCC parking lot clearly indicates vehicles may be subject to search, negating the need for a warrant.
Tarnow also took issue with the fact Wooding was seen discussing with Curtis the questions Tarnow had asked after the preliminary hearing.
“After 30 years in the system, you didn’t know it wasn’t appropriate?” Tarnow asked Wooding.
“I understand it now,” said Wooding.
Tarnow pointed out the similar wording both Wooding and Curtis used to answer why Gaber wasn’t told he was detained or had right to speak to a lawyer. Both denied consulting with each other to prepare the testimony.
Curtis testified that he asked Gaber how long he had been smuggling contraband in the jail, how much he was paid, and who his clients were.
Curtis said Gaber was uneasy when he first arrived in the boardroom, then started breathing heavily after he was told about the search.
Crown attorney Ludovic Gouaillier asked Curtis why they didn’t explicitly seek consent from Gaber before searching his belongings.
“Things were happening so fast,” said Curtis, who admitted it was the first time in his career he had to search another officer suspected of bringing in contraband.
Tarnow also questioned the jail guards about an investigation conducted several years ago into allegations that Damchuck was bringing contraband in WCC. Wooding and Curtis were visibly uneasy when Tarnow asked about it.
Eventually Tarnow asked to see the files pertaining to the investigation into Damchuck, and the Crown agreed.
Tarnow asked Damchuck about the identity of the informant who let him know about the contraband and his motive for giving information to jail officials.
Damchuck said the informant asked for canteen privileges in exchange for the informations – food and products inmates can buy from the jail. He refused to tell the informant’s name, as it would put his life in danger, he said.
As Tarnow was pressing Damchuck for more details about the informant, the judge reminded Tarnow to be careful.
“I’m getting closer,” Tarnow answered.
“I don’t think so,” Justice Veale said.
The hearing about the evidence’s admissibility continues today. Tarnow is expected to argue for the informant’s identity to be released so he can be called to testify to the trial, something the Crown made it clear it was opposed to for safety reasons.
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