R. v. Dubensky

R. v. Dubensky

Although the court found an unreasonable 21–22 minute delay in implementing s.10(b) rights, the search incidental to a lawful arrest occurred after the accused was advised and constituted a separate transaction temporally and contextually unconnected to the later delay; the breach was not egregious and had minimal impact, the seized cash was reliable and central to the Crown's case, and therefore the evidence was not 'obtained in a manner' that mandates exclusion under s.24(2); application to exclude dismissed, but the statement volunteered about keys prior to counsel will be excluded.

Citation
2023 BCSC 486
Parties
Crown: Rex; Accused: Michael John Dubensky
Court
Supreme Court of British Columbia
Jurisdiction
Canada
Judgment Date
8 February 2023
Procedural Posture
Criminal / Oral Ruling on S.24(2) Application to Exclude Evidence Following Finding of S.10(b) Breach
Outcome
Application to exclude evidence under s.24(2) dismissed
Legal Topics
Section 10(b) Implementational Rights, Section 24(2) Exclusion of Evidence, Search Incidental to Arrest, Section 8 Search and Seizure, Section 9 Arrest
Source Language
English
Constitutional Law Criminal Law Charter Rights Section 10(b) Implementational Rights Section 24(2) Exclusion of Evidence Search Incidental to Arrest Section 8 Search and Seizure Section 9 Arrest

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Parties

Rex

Crown

Michael John Dubensky

Accused

Procedural Posture

Criminal / Oral Ruling on S.24(2) Application to Exclude Evidence Following Finding of S.10(b) Breach

Legal Issues

  1. 1 Whether evidence was obtained in a manner that infringed Charter rights under s.24(2)
  2. 2 Whether the 21–22 minute delay in implementing s.10(b) breached the accused's Charter rights
  3. 3 Whether the search incidental to a lawful arrest was lawful and separable from the s.10(b) breach

Ratio Decidendi

Although the court found an unreasonable 21–22 minute delay in implementing s.10(b) rights, the search incidental to a lawful arrest occurred after the accused was advised and constituted a separate transaction temporally and contextually unconnected to the later delay; the breach was not egregious and had minimal impact, the seized cash was reliable and central to the Crown's case, and therefore the evidence was not 'obtained in a manner' that mandates exclusion under s.24(2); application to exclude dismissed, but the statement volunteered about keys prior to counsel will be excluded.

Court Disposition

Application to exclude evidence under s.24(2) dismissed

Orders

  • Application under s.24(2) dismissed and seized items (cellphone, key, $325 cash) admitted as evidence
  • Volunteered statement by accused regarding keys excluded from evidence