R. v. Dombrosky, 2018 BCPC 302

Citation: R. v. Dombrosky 2018 BCPC 302 Date: 20181108 File No: 247155-2-C Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Criminal REGINA v. MICAHEL TERRY DOMBROSKY REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE E. GORDON Counsel for the Crown: A.L. Russell Counsel for the Defendant: E. Cooper Place of Hearing: Vancouver , B.C. Date of Hearing: November 8, 2018 Date of Judgment: November 8, 2018 [ 1 ] THE COURT: Mr. Michael Dumbrosky is before the Court on charges of Possession of Fentanyl for the Purpose of

Trafficking and Possession of Methamphetamine for the Purpose of Trafficking. I concluded earlier that the arresting officers had nowith grounds to arrest him; it was therefore an unlawful arrest, and the search that flowed from that unlawful arrest was not authorizedby law. [2] Having so concluded, the accused now seeks to exclude the evidence that was obtained as a result of the search, the evidencebeing a total of 6.43 grams of Methamphetamine and 8.44 grams of a mixture of Fentanyl and Caffeine. [3] The Supreme Court of Canada in R. v.

Grant, 2009 SCC 32 , [2009] 2 S.C.R. 353, clarified the considerations trialcourts must have in determining whether, once a breach of the Canadian Charter of Rights and Freedoms has been found, the evidenceought to be excluded, and there are three prongs to the analysis. The initial prong is the seriousness of the violation, the second is theimpact of the violation on the accused person's right, and the third is society's interest in having trials determined on their facts. [4] Dealing with the first prong of the analysis, this is a very serious charge as the Crown points out.

Fentanyl is -- I do not think Ineed the usual reports from the Crown to take judicial notice of how dangerous it is at the most minute levels and, as the Crown pointsout, particularly in the area of Vancouver that Mr. Dombrosky was located by the police.

The police officers were patrol officers in thatvery area of the Downtown Eastside of Vancouver which is notorious, as the officer said, for both drugs and violence. [5] It is a tragedy of the beauty of Vancouver that there are many, many people who, with mental health issues or other reasons,are drug-addicted, drug-addled, homeless, find themselves within the confines of, I guess I can consider it, an open ghetto and are oftenthe preyers and preyed upon and the reason I say that is that people who are drug users are often drug vendors to support their drug useand the officers were working within that tragedy. [6] They, of course, know -- if I could use the word, police sixth sense, when they think someone is up to no good, and often actvery quickly.

Certainly in the interests of society in getting drugs off of people and particularly a drug like fentanyl to prevent deaths. [7] Constable Joseph, as I indicated earlier, simply relied on Constable Wood and I cannot find that he deliberately violated any ofMr. Dombrosky's rights, but he went along with whatever Constable Wood did. [8] Constable Wood deliberately violated Mr. Dombrosky's rights by making an unlawful arrest; a deliberate unlawful arrest. Heknew that there was an exception to the terms of Mr. Dombrosky’s area restriction on the form of judicial interim release that he wassubject to.

The officer initially lied to the Court in suggesting that he did not read line one of what came up on his police computer andthen later acknowledged that he read the full line, but deliberately did not check what the exception or exceptions were. [9] Defence counsel also argued that there is a cumulative effect to the behaviour of the police in that, once at the police cells,Constable Wood asked a couple of questions of Mr. Dombrosky. Crown counsel did not seek to tender the answers Mr. Dombroskygave into evidence.

While I have heard the answers, those answers are of no moment to me and to my consideration. [10] Once Mr. Dombrosky was advised on the street that he was going to be charged with possession for the purpose of traffickingand informed of his constitutional rights, he indicated that he wished to exercise his right to counsel.

That could not be exercised on thestreet for a variety of reasons, not the least of which being that he would not have been -- there is no way the police could have affordedhim privacy. [11] The police station -- or the police cells were, really, kitty-corner pretty much, a block up and kitty-corner to where the policehad arrested him and, in fact, Constable Wood walked him from the location of the arrest to the police cells. What occurs with everyonewho is detained in those Vancouver police cells is that the arresting officers do not afford the individual their right to counsel.

It is left tothe officers who guard the police cells to give the individual that opportunity. [12] So, in Constable Wood's mind at the time that he was speaking with Mr. Dombrosky, that either had been done in ConstableWood's absence or it would be done later on in Constable Wood's absence. Constable Wood simply elected to ignore his obligation tocheck, and that, again, does not speak well of him.

Police are obligated to know individual's rights and police are obligated to know thelimits of their right to infringe upon civil liberties and constitutional liberties, and Constable Wood, and using his own word, in hiseagerness to deal with this file simply went ahead bulldozing through Mr. Dombrosky's rights. [13] It is that behaviour of deliberately ignoring his obligations that I have to consider under the first prong of the test in Grant.

Thethird prong is, of course, also significant because this is a serious charge, but when I weigh what happened in this case with the publicinterest, I have to consider, as well, that the public has an interest in ensuring and knowing that Courts will not condone deliberateconduct by the police that is a violation of someone's rights under the Charter and, in this case, I am of the view that if the evidence wereto be admitted, it would be condoning very serious Charter violations and, in the result, I cannot admit the evidence. [14] MS. RUSSELL: Thank you, Your Honour.

The Crown is calling no further evidence. [15] THE COURT: All right. So what I am going to do is, on the voir dire, no evidence that was heard will be admitted into the trialproper. On the trial proper, no evidence has been tendered and therefore Mr. Dombrosky is acquitted. [16] MS. RUSSELL: Thank you, Your Honour. [17] MR. COOPER: Thank you, Your Honour. (REASONS FOR JUDGMENT CONCLUDED)