Judge gives reasons for throwing out evidence in child pornography case

A territorial court judge’s error in interpreting the Criminal Code resulted in the exclusion of child pornography, guns and ammunition as evidence in a criminal case against a convicted pedophile.

A territorial court judge’s error in interpreting the Criminal Code resulted in the exclusion of child pornography, guns and ammunition as evidence in a criminal case against a convicted pedophile.

Yukon Supreme Court Justice Todd Ducharme dismissed child pornography charges against Brian Nowazek in August 2016.

Ducharme released his written reasons on Feb. 7, 2017.

In July 2014 one of Nowazek’s neighbours called the RCMP alleging Nowazek had offered candy to his children.

The police decided to bring a peace bond application against Nowazek, a preventative measure that allows courts to impose conditions on someone who police believe is about to commit a crime.

The Crown prosecutor who appeared in court in July 2014 said he had serious concerns about Nowazek given his history of crimes against children, with prior convictions for possessing child pornography, attempted molestation and soliciting sex from a minor.

Nowazek was summoned to appear in court July 16.

That’s when territorial court judge Michael Block erred, Ducharme wrote.

Nowazek asked that the application be adjourned so he could get a lawyer. Block agreed but put a number of conditions on Nowazek, including allowing the RCMP to search his computer.

But Nowazek was only under a summons — an obligation to appear — and wasn’t facing any charges, Ducharme wrote. No evidence had been heard for the peace bond application either.

Block had no power to impose those conditions on Nowazek, Ducharme ruled. And even if he had, the conditions were overly broad, Ducharme added.

Based on those conditions the RCMP showed up to Nowazek’s home immediately after the hearing ended and demanded to search his computer.

They found evidence he had been accessing child pornography that gave them cause to obtain a search warrant and seize Nowazek’s computer.

They also seized firearms and explosives. Nowazek was charged with possessing child pornography and was remanded to the Whitehorse Correctional Centre.

The police acted in good faith, Ducharme wrote, when they relied on the conditions Block imposed to search Nowazek’s computer.

But Block’s mistake made the entire case crumble. The first search was invalid and couldn’t be used to justify the search warrant.

That means that the search on July 17 was warrantless, Ducharme wrote, and therefore a violation of Nowazek’s rights.

Ducharme found the evidence to be reliable. Had the evidence been admitted, the Crown would most likely have proven that Nowazek was in possession of child porn, guns, ammunition and explosives, the judge wrote.

He also found that “Society’s interest in the adjudication of a criminal trial on its merits would be seriously undercut if highly reliable and critical evidence, such as his evidence was excluded.”

Still, Ducharme decided the violation of Nowazek’s rights and the impact on the accused tipped the balance in favour of excluding the evidence.

Crown prosecutors have appealed Ducharme’s ruling.

Before being released from the Whitehorse Correctional Centre last August, the police brought a new peace bond application against Nowazek. He was put under a series of conditions, including an order to stay away from public places where children under the age of 16 could be found.

Nowazek later moved to Surrey, B.C. and failed to appear in court in Whitehorse back in October 2016.

Yukon territorial court issued a warrant for his arrest Oct. 14.

B.C. RCMP didn’t issue any public notification about Nowazek despite his lengthy criminal record.

While not commenting on the case directly, a spokesperson for the B.C. RCMP told the News that there needs to be credible information about an imminent threat to public safety for police to issue a public notice. The notification also has to get approval from the division’s commanding officer.

To this day Nowazek hasn’t resurfaced. His whereabouts remain unknown.

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

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