Whitehorse Daily Star

Jail managers did detain guard, judge rules

Marijuana found in a former Whitehorse jail guard’s car will be inadmissible at his upcoming trial because his rights were violated by jail management, a Yukon Supreme Court judge has ruled.

By Rhiannon Russell on August 28, 2015

Marijuana found in a former Whitehorse jail guard’s car will be inadmissible at his upcoming trial because his rights were violated by jail management, a Yukon Supreme Court judge has ruled.

Fifty-nine Ritalin pills found in the guard’s pocket, though, will be admissible.

Michael Gaber, 47, faces two counts of drug possession for the purpose of trafficking.

It’s alleged he was smuggling the contraband into the Whitehorse Correctional Centre for inmates.

A hearing was held in June to determine whether the drugs should be admissible at Gaber’s trial in November.

Defence lawyer David Tarnow argued that Gaber was unlawfully searched and detained by jail managers when he showed up for his shift on Dec. 26, 2013.

As a result, the drugs should be excluded, he argued.

Three jail managers testified for the Crown: superintendent Jayme Curtis, deputy superintendent of operations Geoffrey Wooding and manager of correctional services Blaine Demchuk.

When Gaber showed up for work that day, he was asked to come into the boardroom to speak to Curtis and Wooding.

They’d received a tip from an inmate that he was bringing in contraband.

Wooding searched Gaber’s backpack, then his pockets were emptied to reveal a condom of pills.

Wooding took Gaber’s keys and went out into the parking lot to search his car.

Before he left, Demchuk was called into the room, and Gaber was asked to write out information about who the drugs were for.

Wooding later returned with two vacuum-sealed packages of tobacco and 120 grams of marijuana, plus a baggie of $5 and $20 bills.

Then the jail managers contacted the RCMP, who arrested Gaber and read him his rights.

The Canadian Charter of Rights and Freedoms mandates that upon arrest or detention, a person must be told he or she has a right to a lawyer.

The managers testified they never detained Gaber so they didn’t have to tell him he had this right.

In his decision, Justice Ron Veale said this is “simply not tenable.

“They maintained that this was the case both before and after the discovery of the pills, despite the fact Mr. Demchuk, who stands 6’4” and weighs over 250 pounds, was called in to, in the words of D/Supt. Wooding, ‘supervise Mr. Gaber’ while his car was being searched.”

Veale found that Gaber was in fact detained by the jail managers, and at that point, after the discovery of the pills, he should have been advised of his rights.

The failure to do so was “in explicit contravention of WCC legislation and policy and their persistent investigation in the absence of providing access to a lawyer is reprehensible,” Veale writes in the decision.

Wooding and Curtis both testified they had little experience detaining jail guards.

“While this could provide an explanation for the problematic way this investigation unfolded and bolster the position that the Superintendent and Deputy Superintendent were acting in good faith, it is, to say the least, disturbing that corrections employees in such senior positions are unaware of the characteristics of a detention...” Veale writes.

He said “flawed institutional policy” led to the search of Gaber’s car without a warrant, and the incident shows an “overall pattern of disregard or ignorance of the Charter and the provisions of the Corrections Act....”

Veale added that the initial search of Gaber’s backpack and pockets was “not authorized by law.”

This is because the tip alone didn’t give management reasonable grounds to believe he was bringing in contraband, as required under the Corrections Act, he writes.

The tip wasn’t corroborated and, as Demchuk testified, such allegations are common at the jail.

But even if managers did have reasonable grounds to believe Gaber was bringing in contraband, they would have had to get Gaber’s consent to search.

This didn’t happen, Veale notes.

Despite that, the Ritalin pills will still be admissible at Gaber’s trial.

The impact on his Charter rights in that situation was minimal, and the drug evidence is key to the Crown’s case, Veale writes.

In the context of the allegations and the “profound breach of public trust that a conviction for these offences would represent,” excluding the Ritalin evidence would more negatively impact the administration of justice than including it, he decided.

“Mr. Gaber was an employee at a jail, a place where there are reduced expectations around privacy,” the judge writes.

But with the marijuana, the violation of Gaber’s Charter right to a lawyer had an effect on the discovery of the drugs in his car, Veale ruled.

“The admission of the marijuana in Mr. Gaber’s trial would undermine public confidence in the rule of law...”

Crown prosecutor Eric Marcoux said this morning that Gaber will still be tried for both charges, but it’s likely he’ll now be acquitted of marijuana possession for the purpose of trafficking.

A spokesperson for the territorial Department of Justice, which runs the Whitehorse jail, declined to comment this morning because the case remains before the courts.

The trial is scheduled for Nov. 5-6.

Comments (7)

Up 0 Down 0

ykfreedom junkie on Sep 3, 2015 at 10:23 pm

Another episode in the failed war on drugs. If you can't even keep drugs out of the jails how do you figure you can legislate morality upon a society. Our prison systems are for a large part a fraudulent waste of resources.

Up 4 Down 0

Mike on Sep 3, 2015 at 11:51 am

@ Angela

Miranda rights are a US thing.

Up 0 Down 4

Angela on Sep 2, 2015 at 5:27 pm

For Ms. Jackson. You paint everybody with a black and white brush. Justice is always right even when they're wrong. Cops and, in this case, Corrections management aren't allowed to do whatever they feel like. It's called Miranda rights. This is why we live in an developed society and enjoy the freedoms associated with it. Otherwise why don't we just convict everybody that gets charged by the RCMP no matter what the circumstances and throw everybody in jail.

Up 13 Down 0

June Jackson on Sep 2, 2015 at 11:16 am

Michael Gaber broke the law, making himself a criminal. He got caught. The court judge did not like the way he got caught so, he took the side of the criminal.
Yukon justice...protect the criminal and charge the taxpayer for it.

This case aside, I think in general, Judges should be elected. As it is, Judges are appointed and generally a gift from the sitting government. Doesn't make for too much justice.

Up 36 Down 8

Yukon 56 on Aug 29, 2015 at 6:13 pm

Lost in the Yukon, live a moral life and you will never be there. Do the crime, expect to do the time. That is, if our crappy justice system even follows through and sentences CRIMINALS to appropriate terms

Up 61 Down 2

Yukon 56 on Aug 28, 2015 at 5:26 pm

What a crock, hope WE are not paying the legal fees.

Up 13 Down 61

Lost in the Yukon on Aug 28, 2015 at 4:25 pm

So ... if you think they were heavy handed with an employee, imagine how inmates with severe cognitive disabilities are treated,

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