Rights violation sees accused regain his freedom
A Yukon man walked free today after a Yukon Supreme Court judge found a Charter rights violation excluded the evidence against him.
A Yukon man walked free today after a Yukon Supreme Court judge found a Charter rights violation excluded the evidence against him.
Brian Nowazek had been in custody for two years on eight charges of child pornography, possession of an explosive substance, and various firearms violations.
The evidence supporting these charges was uncovered when the RCMP searched Nowazek’s home and computer.
This morning, Justice T. Ducharme found this search to be in violation of Nowazek’s rights against unreasonable search or seizure under Section 8 of the Canadian Charter of Rights and Freedoms.
At the time of the search, Nowazek was under a recognizance.
Ducharme said Nowazek only consented to the search because of that recognizance.
In court, Ducharme said he doesn’t question that the RCMP acted in good faith.
He said the charges were serious, but so too was the violation of rights.
While Ducharme considered the evidence “demonstrative of guilt”, he found that, due to the Charter violation, it had to be excluded from trial.
“That’s what Section 8 is all about,” said Crown attorney David McWhinnie after hearing the decision.
McWhinnie said that this was all reliable evidence in a serious case, but that, in the case of a charter rights violation, a judge has to decide whether there was a breach.
The judge must then weigh the significance of the evidence against the seriousness of the case, and decide whether to admit some or none of the evidence.
Justice Ducharme apologized for not having his reasons available this morning, but said he planned to have them soon.
McWhinnie said that, until those reasons are read, he won’t know whether the Crown will appeal the case.
Nowazek was cleared of all charges.
Comments (11)
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Evangeline Ramirez on Mar 20, 2017 at 6:58 am
This is not the JUSTICE SYSTEM that I believed Canada was built on. When I lived in other countries like Philippines, Saudi Arabia, Tunisia, Morocco,Singapore etc., I trusted that by coming to Canada for good, I was embracing a land of EQUALITY and PROTECTION for rights and freedoms especially for "WOMEN". I do not see that my rights have been upheld. Many Yukoners know that I have a very complex case. The value of freedom is measured by the cost of "struggle". If you need freedom, then you have to become a "FIGHTER" as no other option.
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john gould on Aug 2, 2016 at 4:40 pm
I've lived and worked in the Yukon 40 years and have nothing better to spend my money on and am dead serious. if Yukon Justice condones this release I John Henry Gould have every intention of financing a REAL defence for Michael Nehass. This judgment has angered me so much I am sick. I love the law in the Yukon and pray it never happens to you but I will not sit back and watch one guy get released on such prolific offences and let someone like Nehass, another prolific offender, who's rights have been violated on the most grandest of scales. As of today, Mr. Nehass will have a real Lawyer and I accept full responsibility for this decision.
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john gould on Aug 2, 2016 at 4:33 pm
This is the biggest joke I have ever heard, and I will say this; if this is what really got this guy out of jail then they better get Michael Nehass out of that jail because if anyone has had their rights violated he has, whether he's a creep or not. If we are going to follow the rule of law then the Yukon courts have no right holding Nehass in custody whatsoever. I mean 4 years in segregation, being housed naked for months at a time and presenting him to the courts naked. Are you kidding me? If the justice system supports the release of this gun toting pervert then I'm buying Mr. Nehass a real lawyer cause it can't be right for one and not for the other.
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Rorex1983 on Aug 2, 2016 at 1:28 pm
This is not, at least as far as this article explains it, a breach of the accused human rights.
"Ducharme said Nowazek only consented to the search because of that recognizance."
He consented and the judge is making the argument that the recognizance put the accused in duress. Why is the Judge even making an argument, it's the judge's job to hear the case as it's presented to him not to try the case on his own. You see this over and over again with our judges. Example lawyer and client wave gladue reporting (totally in their right to do so), judge insist and then gives a lighter sentence. These judges need to realize they are impartial and it's the crown and the defenses jobs to make their case. We need to retire all our judges.
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Josey Wales on Aug 2, 2016 at 9:08 am
In no way am I supporting this alleged pervert, but rather the rule of law.
Am I happy he is free, no I am not.
However what needs be the focus here is when the police have the power they are trusted with, there is a flip side...responsibility.
If the job is done without being professional, not repeat NOT act within the laws we are all "supposed to comply with"....we get this.
State actors do have a very difficult job even I recognize that fact, all the more reason to stick to protocols that in "theory" adhere to the law.
A very unfortunate set of boo boos that resulted in a man whom appears need be caged...free.
Other times...folks fall and never to get up after after a series of bad choices from state actors.
As we have been seeing virtually DAILY thanks to folks having recording devices.
For balance, many fallen suspects do/did pose a serious threat to our safety and their falling...was a chapter they wrote.
Another thing that very much effects our public safety, is state actors operating outside or above the law.
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Some guy on Aug 2, 2016 at 3:41 am
Vigilante justice? Come on people we just don't go out lynching people. The real people to blame are our RCMP. They enforce laws that grab media headlines.
There are people afraid to come home cuz of the lower mainland gangs in Whse. This is just a distraction from the laws that get broken everyday. No wonder the lower mainland gangs love it up here so much. They can operate their business without a care in the world as the heat never comes.
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Graeme on Aug 1, 2016 at 10:10 pm
That's why I couldn't be a judge... besides the brains thing.
Having to follow the law when it's that hard. Something needs to change, after all he has basically put the human rights of the accused over the human rights of the kids being used in those photos.
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jc on Aug 1, 2016 at 5:47 pm
CCC its evident that most judges today have their own interpretation of the law. It falls in with their own personal ideology. It's time the government appointed judges with wisdom or allow the citizens to elect them. Then, if a judge doesn't rule according to the written law, he/she can be voted out. Notice, the laws haven't changed, only the interpretation.
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cameron on Aug 1, 2016 at 5:15 pm
This person is living in our community. Disgusting. No punishment!!!!!!!!!!!!
I guess we are saying we are so sorrrrry that you were disturbed looking at your kiddie porn and god knows what you were planning to do with the explosive substance. Do we get to know where he is staying so that we can make sure our young children are no where near him!!!!!!!!!!
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CCC and YCJA promoting vigilante justice on Aug 1, 2016 at 4:05 pm
I appreciate judges, crown and defense attorney's have to follow the regulations of the law within the Criminal Code of Canada and Youth Criminal Justice Act. But, some the technicalities that result in charges being withdrawn or minimal sentence's will only result in the police not being called and a lot more vigilante justice!! Just my opinion...
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June Jackson on Aug 1, 2016 at 3:35 pm
Child pornography, possession of an explosive substance, and various firearms violations. A pervert with explosives.. and guns.. back on our streets...
I'd probably go to jail if i wrote what I think of that judgement.. let alone what I think should happen to Brian Nowazek.. with any luck he will leave Whitehorse.. one way or the other.