R. v. Davidowicz Date:, 2017 BCPC 384

Citation: R. v. Davidowicz Date: 20171108 2017 BCPC 384 File Nos: 218705-1, 218705-2-A, 219265-1, 1222514-1, 224579-1, 224580-1 Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Criminal REGINA v. NATHAN DAVID DAVIDOWICZ RULING OF THE HONOURABLE JUDGE E. GORDON Counsel for the Crown: D. Patterson Counsel for the Defendant: M. Beckett Place of Hearing: Surrey , B.C.

Dates of Hearing: November 3, 8, 2017 Date of Judgment: November 8, 2017 [ 1 ] Mr. Nathan Davidowicz comes before the court seeking judicial interim release. He is before the court on six different Informations. I will go over the Informations and then briefly summarize the circumstances. [ 2 ] Information 218705-1 is allegations of trafficking cocaine on June 14, 2016; possession of cocaine for the purpose of trafficking on June 14, 2016; and possession of heroin for the purpose of trafficking on June 14, 2016.

He was released from custody on an undertaking by investigating police officers. [ 3 ] Next in time is 219265-1, allegations of trafficking in heroin two days later on June 16, 2016; possession of cocaine for the purpose of trafficking and possession of heroin for the purpose of trafficking on June 16, 2016. Again, he was released from custody on a police undertaking. [ 4 ] Next in time is 222514-1, which are charges of possession of cocaine for the purpose of trafficking on November 29, 2016, and possession of heroin for the purpose of trafficking on November 29, 2016.

He was released from custody for Crown opinion. The Crown opinion was to prosecute and he was summonsed. [ 5 ] Next in time is 224579-1, possession of cocaine for the purpose of trafficking on April 9, 2017.

Once again, he was released from custody for Crown opinion. [ 6 ] Now we get to the most recent, 218705-2-A, an allegation of breach of Recognizance for attending at the Central City Shopping Centre. [ 7 ] Allegations on 224580-1, possession of a mixture of fentanyl and heroin for the purpose of trafficking; possession of cocaine for the purpose of trafficking; possession of heroin for the purpose of trafficking; possession of cocaine for the purpose of trafficking; possession of morphine for the purpose of trafficking; and possession of clonazepam for the purpose of trafficking. [ 8 ] The most recent charges arise as a result of a sudden death that the police attended to where it was apparent that the deceased had died from an overdose.

The uniformed officers who attended observed that someone named Nathan with a particular telephone number had been telephoned and turned the deceased's cellular telephone and their investigation over to the Surrey Drug Section.

Interestingly, Nathan, with that telephone number, is the individual that officers telephoned and who had trafficked to undercover officers during undercover operations on June 14, 2016, and June 16, 2016. [ 9 ] With respect to June 14, 2016, the total drugs that were seized were 4 grams of crack cocaine, 7 grams of powder cocaine, another 7 grams of crack, a total of 18 grams of cocaine and 5.1 grams of heroin.

Two days later there was a total of 12.2 grams of cocaine and 1.49 grams of heroin. [ 10 ] On November 29, 2016, there was a total of 58.32 grams of cocaine and 25.37 grams of heroin. [ 11 ] Concerning April 9, 2017, the Crown has indicated that there was less drugs on his person than originally believed, so that on his person he had 14 grams of crack cocaine and elsewhere there was 20 additional grams of crack cocaine, 4.14 grams of powder cocaine, 12 grams of fentanyl, 20 oxycontin pills, and 20 clonazepam pills. [ 12 ] Finally, with respect to November 1, after a hand-to-hand transaction and the accused attempting to run away from the police, in the bag that he had had on his person, the following was located: 72 pieces of crack weighing 22.5 grams; a mixture of heroin and fentanyl weighing 6.69 grams; 31 tylenol-3 pills; 23 morphine pills; 16 clonazepam pills; and 10 bottles of methadone in various sizes. [ 13 ] Crown counsel seeks this individual's detention on the secondary ground.

Defence counsel seeks that he be released to a facility known as Pathway to Freedom, which is apparently a facility approved by Probation Services and B.C. Coastal Health. [ 14 ] Of the four incidents prior to November 1, 2017, Mr. Davidowicz was not released on strict terms. Two were police undertakings. One he was summonsed and the third had not yet been proceeded with because it was waiting for Crown opinion. [ 15 ] The Bail Reform Act , when it was written in the 1970's, was one of the most remarkable pieces of progressive legislation in the western world and I believe that it still is and justifiably is.

No individual ought to be detained if not necessary. There is a presumption of innocence and as Mr.

Justice Iacobucci wrote, but in dissent, but it certainly makes sense, "Any second in-custody can never be regained." [ 16 ] The secondary ground has been defined, eventually, by the Supreme Court of Canada that a judge needs to conclude that there is a substantial likelihood that if an individual is released from custody that he or she would re-commit crimes that are dangerous to society. [ 17 ] Notwithstanding all of the incremental amendments to the Bail Reform Act in the ensuing close to 50 years, it still remains the law that an individual is entitled to release unless those concerns are met either under the primary, secondary, or tertiary ground.

The only issue before me is the secondary ground. [ 18 ] In my 13 years as a judicial officer I have never reached the conclusion that I am reaching, but the conclusion that I am reaching in this case is that the secondary ground was written for Mr. Nathan Davidowicz. There is no doubt that if released he poses a substantial likelihood that he would be re-involved in criminal activity and that the activity is a remarkable danger in the community. The onus did not need to be on him, notwithstanding that it is. His situation cries out for detention more than any case I have ever seen.

[20] He is detained on all matters that are new and any matters that have not previously been revoked. Bail is revoked. (RULING CONCLUDED)