R. v. Dombrosky, 2018 BCPC 303

Citation: R. v. Dombrosky 2018 BCPC 303 Date: 20181108 File No: 247155-2-C Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Criminal REGINA v. MICHAEL TERRY DOMBROSKY RULING ON VOIR DIRE 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 Dombrosky is before the Court on charges of Possession for the Purpose of Trafficking both Fentanyl and Methamphetamine. The offences are alleged to have occurred in Vancouver on January 23, 2018.

[ 2 ] He has brought an application to have the evidence heard within the confines of a voir dire , which it has been, to determine whether his arrest that day was unreasonable, whether a search that followed the arrest was therefore not lawful, and an application at this point to have me find that both s. 8 and 9 the Canadian Charter of Rights and Freedoms were breached by the arresting officers. [ 3 ] What occurred is that Constable Joseph and Constable Wood were partners working in the Downtown Eastside. They had, exactly one month earlier, arrested Mr.

Dombrosky for offences of possession for the purpose of trafficking and what it seems occurred is that they initially released him on a promise to appear with an undertaking with conditions which included a form of area restriction not to go within certain parts of the Downtown Eastside of Vancouver. [ 4 ] I do not know if he applied before my sister Judge Oulton to have himself -- to have the police undertaking cancelled and be released on a recognizance in order to get an exception to the condition, or if the Information was not sworn in time such that as the Crown was then obligated to bring him before the court either by warrant or summons and seek conditions.

In any event, my sister Judge Oulton, on January 19th of this year, released this gentleman on a recognizance which included an area restriction from the 100 block of East Hastings Street in Vancouver, British Columbia, but for attendances at Insite in order to inject whatever he consumes safely. Her wording was that he could not linger on the street, but could attend on the Street at Insite. [ 5 ] The officers were in a cruiser car, had grabbed coffee somewhere near the intersection of Main Street and Georgia, and saw Mr. Dombrosky. They were on the east side of Main Street. They saw Mr.

Dombrosky on the west side of Main Street walking north toward Hastings. Hastings is two blocks north of Georgia. Knowing that he was either still on a police undertaking or that the court might have dealt with it in some way, they decided to, as Constable Wood used the word, patrol to see if he was committing a crime. [ 6 ] Constable Joseph was driving and relied on Constable Wood to do some checking.

Constable Wood checked PRIME and CPIC on the computer in the police vehicle. [ 7 ] There is a condition which reads -- the first line reads, "No-go within the 100 block of East Hastings Street, Vancouver, British Columbia, except you may go directly." Constable Joseph did not read the police computer and relied completely on Constable Wood.

Constable Wood testified initially that he read only a portion of that line, which I found completely hard to believe, and then later on in his evidence under cross-examination acknowledged that he had read the entire line which means that he knew that there would be some exception. He elected, perversely, to not make himself aware of what the exception was. [ 8 ] The police vehicle stopped at a red light at Main and Hastings and, according to Constable Joseph, they were in the far east lane.

According to Constable Wood, they were in the west lane of the northbound -- of the three lanes going northbound and, in any event, they saw Mr. Dombrosky standing not exactly at the intersection so that he was some feet from both Main Street and Hastings and closer to the stairs of the Carnegie Centre, in Constable Wood's mind, than to the crosswalk that would cross East Hastings. [ 9 ] Constable Wood ran out of the vehicle, obviously, there still was a red light because he would have had to run in front of southbound traffic if there was a green light, and arrested Mr.

Dombrosky while Constable Joseph went and parked the police vehicle. [ 10 ] Pursuant to s. 495 of the Criminal Code of Canada, police are able to arrest someone without a warrant if they have reasonable grounds to believe the person is about to commit an indictable offence or they find the person committing a criminal offence. In this case, the criminal offence would have been, although it is not before me, a charge of breach of recognizance for being within an area of restriction.

Police, I would conclude, are actually obligated to arrest someone whom they find committing a breach of recognizance. [ 11 ] If that matter were to go to trial, as the Crown points out, it is not on the Crown to prove that an exception to a restriction -- the Crown is not obligated to negative an exception to a restriction.

Once the prima facie case of breach of recognizance has been made out, it is for the accused, on a balance of probabilities, to demonstrate that an exception makes he or she innocent. [ 12 ] In this case, the innocence would be that this gentleman was entitled to be in that area, were he going to Insite. Constable Wood acknowledged that if Mr. Dombrosky had continued walking north on Main Street and had gone past Hastings Street that he would not have -- the officer would not have had grounds to arrest Mr.

Dombrosky. [ 13 ] Defence counsel argues that by deliberately making himself wilfully blind to the specifics of the exception that the reasonable grounds to arrest have been invalidated. He argues that this is a case where it is not that the police simply saw somebody committing a crime, it is that they knew he might not be committing a crime and elected to ignore that in order to make an arrest. There is a very fine line here and the fine line is if the police see someone committing a crime, they are entitled to make an arrest.

If they have reasonable grounds to believe someone is about to commit a crime, they are entitled to make an arrest. [ 14 ] Did Constable Wood's deliberate decision to remain ignorant of potential exceptions to the crime being committed invalidate his subjective grounds for believing that an offence was committed? I find that it did. His evidence was, when pressed, that there was no urgency to make the arrest. He said, "I was eager to do so," and he used the word "eager." He was eager to arrest this gentleman.

He was eager to take this gentleman into custody and it may very well be his belief that this gentleman was going to be in possession of drugs or his desire simply to have this gentleman charged with a breach of recognizance, but this is not a situation where the officer saw someone committing a crime and was, in fact, obligated to arrest and not determine whether the person might be innocent. [ 15 ] Here, he saw someone, knew that he could make himself aware of an exception to whether this was, in fact, a crime and chose not to.

That decision, takes this case out of the realm of the cases where police are obligated to arrest. In this situation, the officer was actually obligated to watch this gentleman for perhaps 90 seconds more and those 90 seconds would have determined whether Mr. Dombrosky was going to keep walking north on Main Street and not turn onto Hastings Street, whether he was going to walk to Insite and use its services to inject some sort of substance, or whether he was, in fact, going to hang out on the steps of the Carnegie Centre and be up to no good.

But the officers -- Constable Joseph merely following Constable Wood -- Constable Wood's determination to make himself wilfully blind invalidates his subjective believe and I find therefore there were not reasonable grounds to make the arrest. [ 16 ] I find that as result of there being no grounds to make an arrest, the search based solely upon the arrest was not lawful because the arrest was not lawful.

(RULING ON VOIR DIRE CONCLUDED)