UPDATED August 3
A Yukon Supreme Court judge on Monday dismissed child pornography charges against a man with a lengthy history of sexual crimes against children.
Justice Todd Ducharme ruled the RCMP and an earlier court ruling violated Brian Nowazek’s charter rights.
But before he could be released, the 69-year-old was brought back to court.
On Monday afternoon the RCMP obtained a warrant to bring Nowazek back before a judge.
They feared he was about to commit crimes, namely sexually assaulting children.
Nowazek was then released on conditions, including that he wouldn’t go near places where children under the age of 16 could be found, meaning swimming pools, parks, schools, and community centres.
He can’t used a computer to contact children under the age of 16.
The conditions are temporary, until a peace bond hearing is held to determine if similar conditions should be imposed for up to 12 months.
But Nowazek’s lawyer, David Tarnow, is questioning how the Crown prosecutor could bring the new peace bond hearing while his client has been in custody for the past two years, suggesting there is no “new” evidence.
“I don’t know what these new allegations are,” he told the News Tuesday. “(But) he has been in custody for two years, it’s kind of odd to suggest they have current concerns (about him).”
What started the original criminal case was actually another peace bond application.
In July 2014 one of Nowazek’s neighbours called the RCMP.
Nowazek had offered the neighbour’s children candies, Crown prosecutor Noel Sinclair told Yukon territorial court back in July 2014. The News accessed recordings of the hearing.
According to Sinclair, Nowazek had also offered to give another child in the neighbourhood a bike.
Given his criminal record, which includes attempted molestation, soliciting sex from a minor, and a child porn conviction, Sinclair told the court there were serious public safety concerns.
Nowazek denied he was doing anything wrong.
The hearing was adjourned so he could get a lawyer and he was released with a series of conditions to prevent him from going near places where children under the age of 16 could be found.
He was also ordered to allow the RCMP to access his computer and phone.
After the hearing ended the RCMP went to his home and found “indications” Nowazek had accessed child pornography.
The next day they got a search warrant and seized his computer, along with explosives and several firearms, which resulted in police filing charges.
The charter violation happened during Nowazek’s first appearance for the peace bond hearing, Ducharme said Monday.
Because Nowazek hadn’t been arrested at that stage, interim conditions couldn’t be imposed.
The conditions that allowed the RCMP to search his computer were also overly broad, he said.
But on Monday similar conditions were imposed — minus the ability to search Nowazek’s computer.
“There is somewhat of an overkill on the conditions Mr. Nowazek is being put on right now,” duty counsel Vincent Larochelle, who represented Nowazek before he could hire his own lawyer, told court on Monday.
Larochelle said the maximum the criminal code allows for a successful peace bond hearing is to put Nowazek under a series of conditions for 12 months.
“It’s a little bit weird,” Larochelle said. “It smells like double jeopardy to me,” he said, referring to the child porn case being dismissed.
Tarnow, who successfully argued Nowazek’s charter rights had been violated, didn’t mince his words either. He is representing Nowazek for the current peace bond application.
“We have to deal with this new outrageous thing the Crown is trying,” he said.
The 2014 violation resulted in his client spending two years in jail, he noted.
“It was rather outrageous the Crown would suggest they could get a search provision without Mr. Nowazek even having a chance to talk to a lawyer,” Tarnow said, referring to the July 2014 hearing.
“It was bizarre and unheard of.”
Justice Ducharme hasn’t released his reasons for judgment yet.
On Monday he said there was no doubt the RCMP acted in good faith.
The evidence was reliable and demonstrated guilt, he added. But the search was a serious violation, and warrants the exclusion, Ducharme said.
Outside the courtroom Crown prosecutor David McWhinnie told the News he needed to wait for the judge to issue reasons before deciding whether to file an appeal.
In 2009, Nowazek was convicted of possessing child pornography, along with several firearms offences.
He was sentenced to 31 months in jail and given time served.
A search of his home in 2007 yielded a computer with over 1,000 images and video clips depicting child pornography.
At the July 2014 hearing, Crown prosecutor Sinclair told the court the collection was “substantial” and “damning.”
He also noted the sentencing judge at the time, territorial court chief judge Karen Ruddy, had difficulties and frustrations with Nowazek’s engagement in the sex offender treatment program.
Nowazek also has a criminal record in the U.S.
In 1992, he was sentenced to 10 years in jail in Arizona for attempting to molest a child and for solicitation of sexual conduct with a minor.
Yukon RCMP would not provide a mugshot of Nowazek when asked by the News.
Contact Pierre Chauvin at firstname.lastname@example.org