Rights violated by police search of home, judge rules

CBC North | August 22 2004

WHITEHORSE - A Whitehorse man has been handed a conditional discharge after a two-year court battle with RCMP over his guns.

A territorial court judge has determined police violated Alfred Herzog's rights when they arrested him and searched his home.

The 61-year-old man can avoid a criminal record if he registers his unlicensed rifle, and keeps the peace for the next three months.

Herzog has no criminal record and says he's never been in trouble with police.

So when RCMP Const. Wayne Gork called him into police headquarters two years ago, Herzog says he had no idea what he had done wrong.

Gork was investigating complaints from a government lands official who says Herzog threatened him.

Herzog denied the threats, and when he refused to discuss the situation without a lawyer, Gork arrested him.

A quick check with the firearms registry showed Herzog owned guns. Police told Herzog he would stay in jail unless he surrendered them.

Minutes later, officers were escorting their prisoner to his Lake Laberge home.

There, he directed them to a loaded handgun under his pillow, and two other weapons, before he was released from custody.

Last year, Herzog was acquitted of threatening the government official.

He's spent the past 12 months fighting the firearms charges.

Now Judge Dennis Overend has ruled Herzog's arrest and subsequent search amounted to arbitrary police detention.

Overend says Herzog should have been released.

Then he would have certainly unloaded his weapons before turning them in.

As for the unlicensed shotgun, Overend says if Herzog registers the gun, he gets to keep his clean record.