THE CROWN FINALLY CALLED A HALT TO THE CARLOS CASE

THE CROWN FINALLY CALLED A HALT TO THE CARLOS CASE

by Jane Gaffin

WHITEHORSE, Yukonslavia - After spending a conservative-calculated $2.7 million to drag Whitehorse resident Allen Carlos through courts for 30 months, the Crown finally gave up.

It has stayed the application to proceed with a prohibition hearing which was the original intent of a search warrant executed in February 2000.

Besides ther Crown not having a case, the territorial deputy judge Deborah Livingstone subtly suggested it cease and desist.

Livingstone was the trial judge who acquitted Carlos in November 2000 but was obliged by a Supreme Court of Canada ruling to sentence him for three counts of firearms storage infractions.

By teleconferencing from her office in London, Ontario, Livingstone granted a conditional discharge as had been suggested by Alberta-based defense lawyer Richard Fritze in written sentencing submissions.

The judge issued a six-month probation order concurrent on all three counts but no criminal record, no jail time, no fine and no prohibition.

"As the result of the execution of the search warrant on Mr. Carlos' home, pursuant to section 117.04 of the Criminal Code, all of the accused's firearms have been in the custody of the police since February 15, 2000," Livingstone stated.

"Mr. Carlos has therefore been deprived of possession of such weapons for over two years," she added. "Were it not for this lengthy period of deprivation, I might have agreed with the Crown's position for a prohibition order of a year, or less."

But, in her view, the passage of time while the case wound its way through appeal courts has been tantamount to a two-year prohibition. "No further prohibition is ordered," she said.

Her decision met with resounding applause from the some 30 supporters who gathered in courtroom 5 to hear Carlos' fate on the morning of October 4.

Involved in this matter before the courts were three handguns for which Carlos was duly licensed and grandfathered. They included a restricted .44 Ruger Super Black Hawk; a prohibited .357 Magnum Ruger SP-101; and a prohibited Freedom Arm .22-calibre short-barrel.

In recognition of Carlos as a responsible citizen and dedicated family man who is definitely not a threat to public safety, Livingstone most likely would have returned the firearms to the lawful owner had it not been for s. 491(1)(b) of the Criminal Code.

Essentially, this law has converted plunder into a right. It says that a person who has committed sin in the state's eyes in which items have been seized and kept in custody have to be forfeited to the state without compensation and will be disposed of as the attorney general sees fit.

Since the Supreme Court determined that an offense of careless storage had been committed, Livingstone could not return his private property.

The police, who had concocted a bogus warrant with complainants behind closed doors, had stormed the Carlos resident and seized the family's entire gun collection on February 15, 2000.

Territorial judge Heino Lilles too hastily signed a 57-page application for the search warrant that accused Carlos of being a "threat to public safety and to his family". He never threatened anybody nor was he charged with uttering threats, as the media, especially CBC radio, continues to wrongly repeat.

Chief mining inspector Dave Latoski had made unfounded accusations of Carlos on the 7:30 a.m. CBC radio news broadcast of January 20, 1999. Latoski claimed the "unruly prospector had threatened to kill any government inspector who came into his camp packing guns."

Latoski was one of a couple bureaucrats who persuaded the police to reopen an investigation after a previous officer had turned up nothing.

When Crown witness Constable Wayne Gork was on the stand and cross-examined by defense lawyer Richard Fritze, the subject came up about the complaints received by Constable Raymond Sydney on January 19, 1999 from Julie Nordmann and Sandra Orban. Both were federal mineral resources employees.

Nordmann didn't feel threatened by Carlos but complained about his "piercing blue eyes".

Orban, an ultra-ecogreenie placer-mining Inspector who never exchanged words with Carlos, had barged into the Carlos family's camp with her male companion in August 1998. She didn't seem to feel as threatened by Carlos as she was angry that his hardrock mining endeavors were in her way.

Sydney shelved his report which would have been destroyed in a year had Gork not resuscitated it at the urging of Latoski and mining inspector Leo van Kalsbeek.

At that point, the investigation he took over was 18-months old, noted the defense lawyer in court. No charges for uttering threats were ever pursued from that incident, he said, therefore, the previous constable must not have had a public safety concern if no charges were proceeded with.

"There's no limitation on laying an 'uttering threats charge', is there?" asked Fritze. "No," answered the officer, followed by another question:

"And you didn't pursue that, did you?" Gork responded, "No, I did not."

The three counts of improper firearms storage were laid as a direct result of the police's "wholesale fishing expedition". The storage infractions, for which the Crown pushed Carlos to the Supreme Court, were extraneous to the warrant and have since been deemed unconstitutional by a 3-0 decision handed down in July by the Ontario Court of Appeal.

Under a backasswards firearms law, the police were able to request a warrant to seize the firearms first. Then they would ask the Crown to apply for the s. 111 gun-prohibition hearing to determine if Carlos should be allowed to possess firearms.

But the prohibition hearing was derailed by the storage infractions for which Carlos was acquitted in territorial court in 2000 and again in a 2-1 decision handed down by the Yukon Appeals Court in July 2001.

The Crown appealed to the Supreme Court over the meaning of the word "store" which Parliament had neglected to define in legislation. A seven-judge panel convicted him in April and referred the matter back to the territorial deputy judge for sentencing.

Now the Crown has changed its tune. It decided not to proceed to prohibition, though Carlos and/or his agents has/have made an unreasonable 25 court appearances during the past 2 ½ years with respect to it.

The Crown decided it was more appropriate to refer the matter back to the firearms office where it started in 1999. Carlos' firearms renewal application has been on hold while the Crown dithered around with appeals courts.

The firearms officer will deal with the eligibility issue from his office rather than from the witness box. During sentencing, deputy judge Livingstone sent a message that "enough is enough".

The Crown has implied that the chief firearms officer will not come into cross-purpose with Carlos. Therefore, it is not expected that this specific case will rear its ugly head in court again.

After all, the exemplary citizen is an expert woodsman and master gun handler. He has owned firearms for over 45 years without incident or accident and had been issued permits to carry handguns into the wilds for more than 20 years.

It also has since become obvious to members of The legal system that the badly-flawed application for the search warrant contained fairy tales spun by a group of government feminists. And this whole sordid mess should never have happened.

But, as the saying goes, "what goes around, comes around". Orban, Latoski, van Kalsbeek and a few others were weeded out of Northern Affairs before the federal program devolves to the Yukon government next year.

Orban, who continues to harrass placer miners as a fisheries and oceans cop, had filed an unsavory complaint against Latoski. The feds won't disclose the amount of substantial hush money they paid out. Latoski has been transferred to a new federal position in Victoria, B.C.

Meantime, the accusers were responsible for the Carlos family's having to outlay an extraordinary amount of cash unnecessarily. Supporters have already donated about $35,000. Anybody else who wants to keep the money pouring in for the cause can forward donations to:

-- Paul Rogan, RFOC president and publisher of "Canadian Access to Firearms", 7225 - 7th Avenue, Whitehorse, Yukon, Y1A 1R8 (firearms@yukon.net); or

-- Mr. and Mrs. Allen Carlos, 275 Alsek Road, Whitehorse, Yukon, Y1A 4T1; or

-- The Allen Carlos Legal Trust Fund, Bank of Montreal, 111 Main Street, Whitehorse, Yukon, Y1A 2A7, Transit 0998, account no. 8075-985.

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