Judge throws out charges against convicted pedophile

UPDATED August 3 A Whitehorse man with a lengthy history of sexual crimes against children will walk free after a judge ruled RCMP and an earlier court ruling violated his Charter rights.

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 pierre.chauvin@yukon-news.com

Just Posted

Turtle and rhino fossils fill in ‘massive’ Yukon history gap

Fossils discovered in 1973 are turning heads

In with the old for Dawson City

Town council considers new heritage bylaw

Housing First facility is open, still more work to do, housing advocate says

Residents will be moved in by the end of the month

Whitehorse releases proposed $33M capital budget for 2020

It includes money for upgrading city infrastructure along with focusing on reducing energy use

Whitehorse animal shelter in dire straits, humane society says

Humane Society Yukon is holding a public meeting Nov. 26 to determine shelter and society’s future

Driving with Jens: Yielding is at the heart of defensive driving

If you’re like most people, you probably think about whether you have right-of-way, not yielding

Today’s mailbox: Remembrance Day, highway work

Letters to the editor published Nov. 13

F.H. Collins Warriors beat Vanier Crusaders in Super Volley boys volleyball final

“As long as we can control their big plays to a minimum, we’ll be successful”

Yukonomist: The squirrel, the husky and the rope

The squirrel is political popularity.

Government workers return to Range Road building

The building had been evacuated in October.

City news, briefly

The Food for Fines campaign and transit passes for a refugee family came up at City Hall this week

Rams, Warriors win Super Volley semifinals

The girls final will be Vanier and Porter Creek while the boys final will be F.H. Collins and Vanier

Most Read