Pubdate: Wed, 02 Sep 2015
Source: Yukon News (CN YK)
Copyright: 2015 Yukon News
Contact:   http://www.yukon-news.com/
Details: http://www.mapinc.org/media/1125
Author: Ashley Joannou
Page: 4

JUDGE CALLS JAIL'S ACTIONS 'REPREHENSIBLE'

Marijuana found in the car of a former Whitehorse jail guard can't be
used as evidence at his upcoming trial after a judge criticized the
jail staff for violating his rights.

However, Ritalin pills found in his pocket are admissible, the judge
said.

Michael Gaber is charged with possession for the purpose of
trafficking. Prosecutors allege he was smuggling drugs into the
Whitehorse Correctional Centre. His trial is scheduled for early November.

According to a decision by Justice Ron Veale, Gaber arrived at the
jail for a shift on Dec. 23, 2013 at 2:30 p.m. He was met by the
jail's deputy superintendent of operations, Geoff Wooding, and brought
to a boardroom with superintendent Jayme Curtis.

An unnamed inmate had alleged that Gaber was bringing in contraband,
the court heard.

Gaber's pockets were emptied.

"One of the items produced was a condom with what appeared to be pills
inside," Yukon Supreme Court Justice Ron Veale wrote. "While Mr. Gaber
initially said they were his, he was unable to explain what they were."

After that, Wooding took Gaber's keys and went to the parking lot to
search his vehicle.

"Wooding subsequently returned to the boardroom with a vacuum-sealed
package containing what appeared to be tobacco and marijuana, as well
as a baggie with $5 and $20 bills," the judge said.

"At this point Supt. Curtis called the RCMP."

A total of 59 pills were seized. On top of that, 120 grams of
marijuana were recovered from Gaber's vehicle.

The RCMP arrived at 3 p.m. and Gaber was arrested 27 minutes later.
That's when he was read his rights for the first time and asked to
speak with a lawyer.

There were multiple violations of Gaber's rights leading up to that
point, Veale ruled.

Tips like this, accusing guards of crime, are not uncommon, the court
heard.

One uncorroborated tip is not enough for reasonable grounds to search
someone, he said. The jail had the option of doing extra surveillance
to get to the reasonable level, but they didn't.

"Moreover, even if there were reasonable grounds to believe that Mr.
Gaber was carrying contraband, they would have had to obtain his
consent before searching him," the judge's decision states.

On top of that, once they reached those reasonable grounds, jail staff
could have called the RCMP earlier and then done a search with a
warrant or after an arrest.

Instead, jail officials breached Gaber's right against unreasonable
search, the judge said.

Once the pills were found in Gaber's pocket, the manager of
correctional services, Blaine Demchuk, was brought in.

Jail staff insisted in court that Gaber was not officially detained at
any point and that Demchuck was simply brought in to "supervise" him.
The judge didn't buy that.

"The position that Mr. Gaber was not detained after the Ritalin pills
were produced is simply not tenable," he said.

"While it is true that the pills had not been identified, the manner
of their packaging and the inability of Mr. Gaber to identify them
obviously moved Supt. Curtis and D/Supt. Wooding into a situation
where they had reasonable grounds to believe that Mr. Gaber was
committing a criminal offence, beyond any institutional infraction
that they may have suspected before."

At that point Gaber should have been informed of his right to a
lawyer, the judge said.

"Apart from offending the Charter, they knew or ought to have known
that the failure to advise Mr. Gaber of his right to counsel was in
explicit contravention of WCC legislation and policy and their
persistent investigation in the absence of providing access to a
lawyer is reprehensible."

Both the superintendant and the deputy superintendant told the court
they had never detained a person before aside from the inmates already
in jail.

That might provide some explanation for the problems, Veale said, "it
is, to say the least, disturbing that corrections employees in such
senior positions are unaware of the characteristics of a detention."

Veale said a "flawed institutional policy" led to the illegal search
of Gaber's vehicle without a warrant.

While the judge ruled that Gaber's rights had been breached multiple
times, that doesn't mean that all the evidence is automatically thrown
out.

The pills are still admissible, because the allegations against Gaber
represent a "profound breach of public trust" and the pills are
critical to the Crown's case, Veale said.

"Mr. Gaber was an employee at a jail, a place where there are reduced
expectations around privacy. As an officer in contact with inmates
being housed at the facility, the legislation provides that he can be
subject to random and routine searches of his clothing and
belongings."

But admitting the marijuana would "undermine public confidence in the
rule of law," the judge said.

The improper conduct of Curtis and Wooding after the pills were found
was serious, Veale ruled.

The breach of his right to counsel and the efforts to deny that Gaber
was being detained "reflect a willful disregard or even disdain of the
Charter on the part of the investigating officers," he said.

A spokesperson for the Yukon Department of Justice said they would not
be commenting on the case while the matter was still before the court.
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MAP posted-by: Matt