R. v. Rabinski

2014 BCSC 2674 R. v. Rabinski

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Rabinski, 2014 BCSC 2674 Date: 20140704 Docket: X077195-2 Registry: New Westminster Regina v. Mark Cory Rabinski Before: The Honourable Mr. Justice Josephson Oral Reasons for Judgment Counsel for Crown: H. Doherty M. Loda Counsel for Defence: S. Wright Place and Date of Trial: New Westminster, B.C. July 3 and 4, 2014 Place and Date of Judgment: New Westminster, B.C. July 4, 2014 [1] THE COURT: Pursuant to s. 24(2) of the Charter, the defence applies to exclude evidence of a list of drugs found on the person of the accused following his arrest. Defence submits that, viewed objectively, there were insufficient reasonable and probable ground for that arrest. In the alternative, the defence applies to exclude that evidence on the basis that the accused was denied his rights under s. 10(b) of the Charter. [2] The Crown replies that applying R. v. Debot, there were ample reasonable and probable grounds for the arrest. With respect to the accused's s. 10(b) rights, the Crown points out that the accused was appropriately warned and Chartered immediately following his arrest. The accused stated that he understood those rights and, when asked if he wished to exercise that right, stated, "Not at this time". [3] Corporal Katalinic formed the belief which founded the arrest on these grounds: 1. Detailed and compelling information from a confidential informant regarding a dial-a-dope operation operated by two individuals named Weeks and Holt. As I mentioned, that information was very detailed.

2. Confirmation of that information by observations of Mr. Week's and Mr. Holt's, the vehicles and the residence identified in that information.

3. Confirmation of that information by observing Mr. Week's and Mr. Holt's engaging in activity consistent with a dial-a-dope operation.

4. Confirmation of the information identifying the phone number used in that dial-a-dope operation by phoning that number and arranging the purchase of illicit drugs. Shortly after that arrangement, the male voice called back cancelling the deal, saying that he only dealt with people he knows.

5. Observing the accused drive to the residence identified in the information from the confidential informant and observing Mr. Holt and the accused, who was seated in his own vehicle, engage in a brief transaction entirely consistent with the trafficking of drugs pursuant to a dial-a-dope operation.

6. Finally, while not as extensive as some, Cpl. Katalinic has experience over many years of observing street level drug transactions. [4] In my respectful view, despite the able efforts and submissions of Mr. Wright for the accused, I have concluded that there were ample reasonable and probable grounds to believe that the accused was in possession of illicit drugs at the time of his arrest. [5] Further, and again with respect, the evidence falls far short of establishing a breach of the accused's rights under s. 10(b) of the Charter. My reasons will be relatively brief and not as detailed as the submissions I received. Simply put, I accept the submissions advanced by the Crown. [6] The confidential information received was indeed compelling and detailed, including names, locations, type of vehicle, nature of the dial-a-dope operation and the specific phone number used by that operation. As the Crown submits, that information was corroborated in every single aspect by police surveillance operations over the three days leading to the arrest of the accused. The one exception is the use of weapons in that operation was not corroborated. [7] The defence points out that while Mr. Holt and Weeks were observed by police to be engaged in drug trafficking consistent with a dial-a-dope operation, they were few in number. I accept the Crown's submission that that factor does not detract

from the objective strength of Cpl. Katalinic's belief which founded the arrest. A flurry of drug transactions over the three days of surveillance is not requisite to form the Corporal's belief. [8] The arrest of the accused, I find, was amply and objectively reasonable. [9] I will be even briefer with respect to the 10(b) application. [10] The accused was informed of his Charter rights immediately upon arrest. He indicated that he understood those rights. When asked if he wished to contact a lawyer, he replied, "Not right now". There is no ambiguity to that reply. It indicates that he did not wish to exercise that right at that time, but may, as is his right, choose to do so subsequently. There is evidence that once at the detachment, he elected to exercise that right and did so. [11] At the scene of the arrest, after the accused declined his right to legal advice, the arresting officer simply offered the accused the opportunity to avoid a close search and examination of his private areas for drugs by removing any drugs on his person. It was inevitable that the drug would be found on his person. The officer merely afforded the accused an alternative that was less invasive and perhaps less embarrassing in that public location rather than a full search by police. The application to exclude the evidence pursuant to s. 24(2) of the Charter is dismissed. [12] Is there consent to

having the evidence heard on the voir dire deemed read into the evidence of the trial proper? [13] MR. WRIGHT: Yes. [14] THE COURT: Thank you, Mr. Wright. [15] MS. DOHERTY: Thank you, Your Lordship. It is my understanding that my friend does not have any further trial issues to litigate, and the Crown's case will be closed at this point. [16] THE COURT: Mr. Wright? [17] MR. WRIGHT: That is correct, I have no evidence to call or submissions to make. [18] THE COURT: Yes. I do appreciate the fairness of that position and I find the Crown has proven its case beyond a reasonable doubt and I find the accused guilty. "Josephson J."