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RAIDED ON UNCONSTITUTIONAL LAW

 

by Jane Gaffin

 

WHITEHORSE, Yukon - Revenge is sweet, even when served up cold.

An Ontario Court of Appeal recently ruled the section of the Criminal Code under which Whitehorse RCMP had obtained a warrant to go on a fishing expedition in the Allen Carlos home over two years ago is unconstitutional.

Parliament was ordered to rewrite CC s.117.04(1) and bring the provision in line with the Charter of Rights and Freedoms.

Justice Michael Moldaver, writing a 23-page decision for Justices Eleanore Cronk and Eileen Gillese, ruled that particular section violates the protections against unreasonable search and seizure as guaranteed in the Charter.

The provision suffers from "incurable overbreadth", he wrote. It allows for "wholesale fishing expeditions" in which police are permitted to invade an individual's privacy in circumstances where they may have no reason to even suspect, let alone believe, that the person owns weapons or that a crime has been or is being committed.

A cheer resounded throughout Canada when the Ontario court shot the volley across the bow. It quashed the search warrant used to raid Kenneth Roy Hurrell's private residence in February 2000, and ordered the London (Ontario) Police Service to return the seized goods.

The major victory may be shortlived, however. Upon return of the seized possessions, the police can seek a fresh warrant under another section of the Code and proceed with the gun-prohibition application.

The police can get by with this legally simply because Ottawa Liberals have repeatedly refused to charter-proof the blizzard of odious laws pushed through the parliamentary factory. The Liberals think justice comes out in the wash after an individual winds his way through three-to-five years of appeals courts.

The Charter states a person charged with an offence is to be presumed innocent until proven guilty. Not so for second-rate citizens. Reverse onus applies to gun owners.

The Charter states the person charged must be brought to trial in a reasonable time. What is the definition of "reasonable"? It takes a minimum 15 court appearances and three years to bring prohibition hearings to court, if ever.

Had the application to quash the warrant been successful in the complicated Carlos case, his family would never have been forced into the Supreme Court of Canada over the meaning of "storage", a word Parliament neglected to define in law.

The police used a bogus warrant to assault the Carlos home on February 15, 2000, and seize the family's valuable gun collection. The three counts of improper firearms storage were a direct result of a "wholesale fishing expedition" and extraneous to the purported purpose of the warrant.

"Is it justice that rather than charging me with a specific offence (the police) would have to prove in court--that is, uttering threats--that they storm our home, find what they believe to be a storage infraction and forced us into court with such charges?" Carlos fumed.

Under a backassward firearms law, the police were able to request a warrant to seize the firearms first, then would ask the Crown to apply for a gun-prohibition hearing to determine if Carlos should be allowed to possess firearms, albeit he was duly licensed, registered and "grandfathered" to own them.

The prohibition hearing was derailed by the three counts of storage infractions for which Carlos was acquitted in territorial court and again in Yukon Appeals Court.

The Crown finally obtained a conviction on April 17 after driving him into the highest court.

His Edmonton-based defense lawyer Richard Fritze viewed the case against Allen Carlos as "an exercise in bureaucratic excess and vindictiveness."

Police and complainants had concocted a search warrant in a backroom. Then Constable Wayne Gork took the 57-page document to the judge's chambers in the court house on Valentine's Day, 2000.

About a half hour lapsed from delivery of the voluminous package until territorial judge Heino Lilles signed it. Yet many hours were required respectively for lawyers and the trial judge to read and digest the text of the badly-flawed document.

Until the matter came to court, nobody knew for sure who said what about whom. "Is it justice that I am not allowed to respond to allegations or never know for certain what they are?" questioned Carlos.

"In essence, I am deemed guilty until I can somehow prove my innocence to such allegations. Is it justice when these same unsubstantiated allegations, highly-embellished, are incorporated into an application for a search warrant bearing outright lies? Is it justice that I--the firearms owners--am dealt with under a more liberal search warrant than other citizenry?" he asked.

While usually difficult to quash a warrant, this one definitely should have been.

Defense-lawyer Fritze argued very capably that the law to obtain the search warrant was unconstitutional. Two years hence the Ontario Court of Appeals proved him right.

"With respect to section 8 of the Charter, minimum standard on which a judge may grant a search warrant is reasonable and probable grounds," Fritze submitted.

"The whole circumstances surrounding the application for the warrant and the issuance of it are suspect. The evidence that was obtained tends to bring the administration of justice into disrepute."

He added: "(Sometime) the right thing has to be done for Mr. Carlos and everybody else in this country." Deputy judge Deborah Livingstone jolted, as though his remark were somehow impertinent in this politically-correct age.

The federal circuit judge, who resides in London, Ontario, thought gun owners deserved the same respect as any other citizen. But she didn't believe Carlos' civil rights had been violated. Neither did she believe that her court was the proper forum to argue the constitutionality of that section of the Code.

In my not so humble opinion, everything surrounding this case stinks. It took the police 18 months to act on what they called "a pressing public safety" matter.

To date, the complainants who filed unfounded and contradictory accusations have been free to commit those dastardly deeds with total impunity. They should be forced to the witness box to make the same allegations under oath and cross-examination as they felt secure in doing behind closed doors with police allies.

After all this turmoil, the Crown appears not to have a case to proceed with a prohibition hearing, albeit the witnesses were subpoenaed twice. One broke down tearfully at the thought of going to court. Maybe others hadn't considered the consequences beforehand, either.

If the case doesn't go to prohibition then again in my not so humble opinion the legal system will have denied Carlos the opportunity to face his accusers in court, which is the way justice used to be administered.

When the case came before the territorial court on fishing-trip charges was the first time the names of the instigators of this sorry mess were publicized. The main players were female feds who implicated male feds in their wake.

Sandra Orban, a placer-mining inspector, had never exchanged a word with Carlos, and it was highly doubtful that her male field partner was aware of her actions. Orban and her pal, Julie Nordmann, filed companion complaints with the police on January 19, 1999.

Constable Raymond Sydney investigated and shelved what he may have suspected was the personal vendetta it was. Later, Constable Gork resuscitated the Sydney report before it was destroyed.

Orban and Nordmann were both employed by Indian Affairs and Northern Development. Yet their reports were written on fisheries and oceans forms to be corroborated with one filed by fisheries officer Pauline Drapeau.

None of the reports were sworn affidavits. Orban's was stale-dated by five months and wasn't even signed nor dated.

Nearly a year passed before the police sought out firearms-office employees Tina Thomas and Leah Richardson. Their interviews were a character assassination without a shred of evidence to substantiate the allegations.

Every individual would recoil in horror if they realized the very laws which are supposed to afford protection from state abuse can be turned full fury against them.

It is a rarity that even the wealthiest person can defend himself whenever a legion of government police, prosecutors and judges bring on trumped-up charges. The odds of winning are slimmer for a combo Yukon hardrock-gold prospector/gun owner of middle-class status.

A courtroom packed with supporters stood up and cheered wildly when Carlos beat the government rap in the first round. They knew the odds and were celebrating him as a special person. He has since been heralded as a folk hero and "martyr of democracy".

"One cannot imagine how smothering it feels when the state decides to sit on you," said Carlos, whose only sin was to speak his mind on subjects others groused about privately.

They're tired of stumbling over an inordinate number of condescending bureaucrats who hold too much discretionary power and treat every government policy like "prohibition orders".

"My nature is to speak my mind,"Carlos said. "If I were to have lived in the Soviet Union in the 1930s, I would have been that person who was first targeted for the Gulag."

If that is where he's headed as a political prisoner, he won't be alone. The law says supporters are guilty by association. And we're all here for him, ready to go mine salt rather than gold.

Carlos will be sentenced by deputy judge Livingstone who acquitted him in the lower court of all three counts emanating from the police fishing expedition.

In her November 2000 decision, she noted: "It was clear to me observing Mr. Carlos in the witness box that he sincerely believes he has been treated unjustly by the RCMP."

She also heard that while the police were at the door he accused them of a conspiracy with chief firearms officer Dan Otterbein who would not provide a reason for denying the master woodsman and gun handler a "permit to carry" his restricted weapon in the bush. Yet hFe'd had a permit for over 20 years.

The Ontario Court decision gives weight to the fact that the Carlos family was indeed driven into the Supreme Court on a bogus warrant based on unconstitutional law.

Livingstone's sentencing via teleconferencing at an unknown date will be interesting.

In the court of public opinion, this mob of one, who will be back in court on his behalf for the 15th time on August 2, is still ranting unequivocally for: absolute discharge; no criminal record; no jail time; remove red flags from computers; return valuable gun collection in mint condition and not re-seize; return all paperwork; issue a permit to carry; order apologies from all the nervous Nellies who told fairy tales that would put Grimes to shame, and an apology from the Snoop Troopers for listening to bedtime rubbish; and promise to leave him alone.

It has been expensive for the Carloses to tenaciously take a stand against injustice and oppression and fight to protect everybody's civil rights and liberties against Stalinist-state tactics.

You can show support and solidarity by contributing to the Al Carlos Legal Trust Fund, Bank of Montreal, 111 Main Street, Whitehorse, Yukon, Y1A 2A7, Transit 0998, account no. 8075-985.

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