Docket: CACR2342 Jonathon Kenneth Dombowsky Applicant - v. -, 2013 SKCA 96

THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2013 SKCA 96 Date: 2013-09-13 Between: Docket: CACR2342 Jonathon Kenneth Dombowsky Applicant - and - Her Majesty the Queen Respondent Before: Richards C.J.S. (in Chambers) Counsel: Ian D. Wagner for the app licant W. Dean Sinclair for the respondent Application: From: 2012 SKQB 304 Heard: September 10, 2013 Disposition: Application dismissed Written Reasons: September 13, 2013

By: The Honourable Chief Justice Richards Richards C.J.S. I. introduction [ 1 ] The applicant, Jonathon Dombowsky, stands charged with first degree murder. It is alleged that he arranged the 2004 killing of Isho Hana in Saskatoon. [ 2 ] Mr. Dombowsky applied to be released from custody pending his trial. A Queen’s Bench judge denied his request. [ 3 ] Mr. Dombowsky now asks for an order, pursuant to s. 680 of the Criminal Code , directing that the Queen’s Bench decision be reviewed by this Court. [ 4 ] I have decided to dismiss the application for the reasons outlined below.

II. background facts [ 5 ] The basic background facts which underpin this application can be summarized in brief compass. [ 6 ] The Crown alleges that Isho Hana was a senior person in a criminal organization involved in the Saskatoon drug trade. It says Mr. Dombowsky and Long Nam Luu were senior people in a rival organization. [ 7 ] Mr. Dombowsky has a significant criminal past which involves convictions for drug trafficking, violence and weapons. He was convicted of assault in 1994, 1995, 1997 and 2002, assault causing bodily harm in 2000, two aggravated assaults in 2003 and two weapons offences in 2003.

He was convicted of drug possession in 1998, drug trafficking in 2004 and possession of drugs for the purpose of trafficking in 2004. [ 8 ] Mr. Hana’s killing was preceded by a considerable amount of violence. On October 1, 2003, someone shot Mr. Luu’s girlfriend through the front door of his residence. Thirteen days later, someone set fire to Mr. Hana’s garage. On February 16, 2004, someone set fire to a house said to have been owned by Mr. Luu’s sister. No one was charged with any of these offences. [ 9 ] Mr.

Dombowsky had gone to prison in June of 2003 and was released back into the community of Saskatoon on day parole in February of 2004. [ 10 ] On March 7, 2004, Mr. Dombowsky was seriously beaten. He told police that he had been jumped by unknown assailants. Evidence which subsequently came to light strongly suggests that he was attacked at Mr. Hana’s direction and in the basement of a house owned by Mr. Hana’s parents. [ 11 ] Mr. Dombowsky was hospitalized for three days and left Saskatoon for Calgary sometime thereafter.

He was not in Saskatoon on March 19, 2004 when someone burned his Saskatoon house to the ground. [ 12 ] Mr. Hana was murdered less than a month after the fire. On April 15, 2004, at about 9:30 p.m., he was pursued on foot down Preston Avenue and shot to death. One witness saw one man chasing him. Another saw two men. [ 13 ] Some years later, police were investigating a 2008 murder in Calgary. The suspects that they identified included Neil Yakimchuk and Kenneth Tingle. Mr. Yakimchuk and Mr. Dombowsky are life-long friends. A complex “Mr. Big” undercover operation was launched and, in January of 2011, Mr.

Yakimchuk told an undercover officer that he had murdered a person eight years before. The details that he provided corresponded with those of the Hana murder. [ 14 ] Mr. Yakimchuk said that “John”, a friend in Saskatoon had been beaten and hospitalized. The friend’s father had then phoned him and told him to come to Saskatoon. He said that he had seen his friend in hospital and that the friend had told him to take care of something for him and directed him to talk to another man about the problem. Mr. Yakimchuk said that he then met with the friend’s partner and was given a gun and money to do the job.

He also explained the details of the killing. All of this was recorded. [ 15 ] Mr. Dombowsky was subsequently charged with first degree murder pursuant to s. 235 of the Criminal Code . Mr. Yakimchuk, Mr. Tingle and Mr. Luu all face the same charge. III. the queen’s bench decision

[ 16 ] Section 515(10) of the Code sets out the considerations which justify the detention of an accused person in custody pending his or her trial. It reads as follows: 515.

(10) For the purposes of this section, the detention of an accused in custody is justified only on one or more of the following grounds: (

a) where the detention is necessary to ensure his or her attendance in court in order to be dealt with according to law; (

b) where the detention is necessary for the protection or safety of the public, including any victim of or witness to the offence, or any person under the age of 18 years, having regard to all the circumstances including any substantial likelihood that the accused will, if released from custody, commit a criminal offence or interfere with the administration of justice; and (

c) if the detention is necessary to maintain confidence in the administration of justice, having regard to all the circumstances, including (

i) the apparent strength of the prosecution’s case, (ii) the gravity of the offence, (iii) the circumstances surrounding the commission of the offence, including whether a firearm was used, and (iv) the fact that the accused is liable, on conviction, for a potentially lengthy term of imprisonment or, in the case of an offence that involves, or whose subject-matter is, a firearm, a minimum punishment of imprisonment for a term of three years or more. [ 17 ] In this case, given that Mr. Dombowsky is charged with first degree murder, he bears the onus of showing why his detention is not justified within the meaning of s. 515(10). Section 522(2) of the Code says this: 522.

(2) Where an accused is charged with an offence listed in

section 469, a judge of or a judge presiding in a superior court of criminal jurisdiction for the province in which the accused is charged shall order that the accused be detained in custody unless the accused, having been given a reasonable opportunity to do so, shows cause why his detention in custody is not justified within the meaning of subsection 515(10). [ 18 ] The Queen’s Bench judge began his decision on Mr. Dombowsky’s application for interim release by summarizing his criminal history and personal circumstances. That done, he turned to each of the considerations referred to in s. 515(10). With respect to s. 515(10)(

a) and the question of whether Mr. Dombowsky’s detention was necessary to ensure his attendance in court, the judge noted Mr. Dombowsky’s convictions for failing to appear and failing to comply with court orders. He said all of this established a “propensity” but that it alone was not sufficient to justify his ongoing detention. [ 19 ] The judge then turned to s. 515(10)(b), the question of whether Mr. Dombowsky’s detention was necessary for the protection of the public, including witnesses. In this regard, he noted that Mr.

Dombowsky was alleged to have controlled a substantial portion of the drug trafficking business in Saskatoon prior to 2004 and observed that “there are many civilian witnesses who continue to live in the City of Saskatoon and for whom there may be a justifiable concern even under a no-contact order.” [ 20 ] All of that said, I take the judge to have based his decision on s. 515(10)(

c) of the Code , not on either s. 515(10)(

a) or (b). He acknowledged that, even though much of the evidence implicating Mr. Dombowsky in Mr. Hana’s murder was circumstantial, the Crown’s case appeared to be “very strong.” He also noted that the crime of first degree murder is one of extreme gravity and that the circumstances surrounding the commission of the offence were disturbing in that Mr. Hana had been chased down a busy street in the early evening and that a stray bullet had pierced the wall of a nearby residence, nearly missing a child. He also noted that, if convicted, Mr. Dombowsky faced a possible sentence of life imprisonment. In short, the judge found that each of the factors referred to in s. 515(10)(

c) were engaged very strongly and that allowing Mr. Dombowsky out of custody would risk “undermining the confidence of reasonable members of the public in not only the bail system but the justice system as a whole.” IV. the present proceeding A. Governing Principles [ 21 ] A decision made pursuant to s. 522 of the Code , such as the one in issue here, can be reviewed by a court of appeal on the direction of the chief justice or acting chief justice.

Section 680 reads as follows:

(1) A decision made by a judge under

section 522 or subsection 524(4) or (5) or a decision made by a judge of the court of appealunder

section 261 or 679 may, on the direction of the chief justice or acting chief justice of the court of appeal, be reviewed by that courtand that court may, if it does not confirm the decision, (

a) vary the decision; or (

b) substitute such other decision as, in its opinion, should have been made.

(2) On consent of the parties, the powers of the court of appeal under subsection (1) may be exercised by a judge of that court.

(3) A decision as varied or substituted under this

section shall have effect and may be enforced in all respects as though it were thedecision originally made. [22] It is common ground that the test to be applied in dealing with Mr. Dombowsky’s application is whether his case has arguablemerit. If it does not, the application must be dismissed. See: R. v. Will, 2013 SKCA 4, 405 Sask. R. 270 (Chambers) at para. 8; R. v.Lewis, 2010 SKCA 54, 350 Sask. R. 241 (Chambers) at para. 9. [23] In deciding whether there is arguable merit in Mr.

Dombowsky’s position, it is obviously necessary to take into account theapproach that would be taken by the Court if it should have the opportunity to review the Queen’s Bench decision. That approach wasdescribed as follows in R. v. Woods, 2012 SKCA 67: [20] Notwithstanding the approach taken by the Crown, this proceeding is not an appeal in the usual sense of the word. Theauthorities reveal that the duty and responsibility of the Court in a review of this kind is to render the decision it concludes should havebeen made by the judge below.

The Court does not defer to the conclusion of the judge or intervene only in the case of demonstratederror. Paying the requisite deference to the judge’s findings of fact, we are to make an independent assessment of the situation andsubstitute our opinion for that of the judge below should that prove necessary. See: R. v. Le, 2006 MBCA 68, 240 C.C.C. (3d) 130; R. v.Mapara, 2001 BCCA 508, 158 C.C.C. (3d) 312; R. v. Nielsen (2001), (ON CA), 152 O.A.C. 362 (Ont. C.A.). B. Analysis [24] Mr. Dombowsky makes several submissions in an effort to secure an order sending the question of his interim release to the Court.

First, in relation to s. 515(10)(a), he says the Queen’s Bench judge did not appreciate that he had gone eight years without an arrest orconviction and that the judge did not consider his willingness or ability to post cash to secure his bail. With respect to s. 515(10)(b), Mr.Dombowsky suggests that the judge failed to understand that lay witnesses who saw the Hana shooting were not important toMr. Dombowsky’s case given that he is accused of ordering the killing, not participating directly in it. In dealing with s. 515(10)(c), Mr.Dombowsky submits that, while the Crown’s case against Mr.

Yakimchuk is convincing, its case against him has a number ofweaknesses. He also points to the fact that Mr. Luu was granted interim release, even though the Crown’s case against Mr. Luu appearsto be stronger than its case against him. Overall, Mr. Dombowsky says that his detention is not warranted pursuant to ss. 515(10)(

a) or(

b) and that, with respect to s. 515(10)(c), the Crown’s case is simply not strong enough to warrant holding him until trial. [25] I agree with the Crown that the central weakness in Mr. Dombowsky’s position is that it fails to reflect s. 522(2) of the Code, i.e.his position is substantially weakened by the fact that the onus is on him to show why, with reference to the content of s. 515(10), hisdetention is not justified. The onus is not, as is normally the case, on the Crown to show why Mr. Dombowsky’s detention iswarranted.

On this front, I note that the Queen’s Bench judge himself appears to have lost track of this reversal of onus, at least whencommenting on s. 515(10)(a). [26] In my view, the Queen’s Bench judge was quite right to identify s. 515(10)(

c) as the key element in his decision. As for s. 515(10)(c)(ii), the gravity of the alleged offence is extremely high: first degree murder. With regard to s. 515(10)(c)(iii), the circumstancessurrounding the offence are highly disturbing: a public assassination with a firearm in the context of what appears, on the record beforeme, to have been a drug war. In relation to s. 515(10)(c)(iv), Mr. Dombowsky, if convicted, faces a sentence of life in prison with nochance of parole for 25 years. [27] The only one of the s. 515(10)(

c) factors open to any meaningful debate as to whether it is intensely engaged by the situation hereis s. 515(10)(c)(i), the strength of the Crown’s case. Mr. Dombowsky points to what he says are various difficulties in that case. Nonetheless, it seems to me that, notwithstanding those issues, the Crown’s position remains reasonably strong. [28] I acknowledge that, at the preliminary hearing, Mr. Yakimchuk recanted some key aspects of the statements he made during theMr. Big operation. Most significantly, he blamed Mr. Hana’s murder on Kenneth Tingle.

He said that, after learning that Mr.Dombowsky had been beaten, he had phoned Mr. Tingle and told him to put Mr. Hana in the hospital. He denied that Mr. Dombowskyhad told him to kill Mr. Hana and he denied coming to Saskatoon. [29] Nonetheless, and without in any way attempting to get into all of the evidence bearing on the question of Mr. Dombowsky’spossible guilt, I note that in his testimony at the preliminary hearing Mr. Yakimchuk did confirm that, when talking to undercoverofficers in Vancouver, he had been speaking about Mr. Hana’s murder and about Mr. Dombowsky’s direct involvement in it. I note as

well that rental agency records show that Mr. Yakimchuk rented a car in Calgary on March 8, 2004 and returned it on March 9, 2004. He rented a car again on April 14, 2004 (the day before Mr. Hana’s murder) and returned it on April 16, 2004 (the day after the murder). In both situations, the mileage count on the vehicle was consistent with Mr. Yakimchuk having made a round trip to Saskatoon. [ 30 ] As well, Mr. Tingle has now come forward and said that he was with Mr. Yakimchuk in Saskatoon when Mr. Hana was murdered and that, consistent with Mr. Yakimchuk’s statements to the undercover officers, it had been Mr.

Yakimchuk who had chased Mr. Hana and shot him. In short, there are some significant considerations which suggest that Mr. Yakimchuk’s efforts to deny what he said to the undercover officers would not be accepted by a trial judge. All of this, of course, might change by or during the trial but I am obliged to adjudicate the question of Mr. Dombowsky’s release on the basis of the “apparent” strength of the case against him. [ 31 ] I note, in addition, the significant evidence about the ongoing violent rivalry between Mr. Dombowsky and Mr. Hana, including important new evidence from Mr.

Greyeyes to the effect that Mr. Hana was present at, and directed, the beating that hospitalized Mr. Dombowsky in March of 2004. This all goes to establish a motive for Mr. Dombowsky to have ordered the killing of Mr. Hana. [ 32 ] I do not find the fact that Mr. Luu has been granted interim release to be a significant consideration in relation to s. 515(10)(c). As I understand it, Mr. Luu claims to have an alibi for the relevant dates and the prosecutor involved in his case consented to his release in light of that alibi and in light of the Court of Queen’s Bench decision in R. v.

Woods , a decision subsequently overturned by this Court. Further, in stark contrast to Mr. Dombowsky, Mr. Luu has no criminal record. In any event, and more importantly, I am reluctant to conclude that a review of Mr. Dombowsky’s situation should be driven by how Mr. Luu’s situation was handled. At the level of principle, the divergent results in their two release applications is as consistent with the idea that Mr. Luu was improperly released as it is with the idea that Mr. Dombowsky was wrongly denied release. It seems to me that, in order to properly dispose of the matter before me, I must focus on Mr.

Dombowsky’s situation. [ 33 ] In the end, taking into account all of the considerations set out in s. 515(10)(c), and bearing in mind the “reverse onus” prescribed by s. 522(2), I conclude that there is no arguable merit in Mr. Dombowsky’s position to the effect that his ongoing detention is not necessary to maintain public confidence in the administration of justice. V. conclusion [ 34 ] Mr. Dombowsky’s application is dismissed. DATED at the City of Regina, in the Province of Saskatchewan, this 13th day of September, A.D. 2013. “Richards C.J.S.” Richards C.J.S.