Alleged heroin dealer freed in rights breach

An alleged heroin trafficker caught up in a political firestorm surrounding the shortage of sheriffs at the Victoria courthouse last year is again a free man.

B.C. Supreme Court Justice Robert Punnett has found Michael Dubensky’s charter rights were breached when he was “arbitrarily arrested” without reasonable grounds by Victoria police on Sept. 15, 2015.

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Dubensky was found not guilty of trafficking heroin and two weapons offences.

“It’s a unique case,” said defence lawyer Jordan Watt.

“Mr. Dubensky was ready to proceed in the first trial. It was ultimately stayed and after it was stayed, the Crown appealed that decision. It went up to the Court of Appeal and the appeal court ordered a new trial. And then we came back a couple of weeks ago and proceeded with the second trial and, ultimately, he was found not guilty.”

The case has been hanging over Dubensky for close to three years, Watt said. “For him, it’s been very tough. Going through all those levels of court certainly had an impact on him.”

Dubensky was one of two accused drug traffickers who had their cases tossed in February 2017 because no sheriffs were available for their trials at the Victoria courthouse.

Four police officers had come to court to testify. Prosecutor Cristin Peel and Watt had spent hours preparing for the trial.

Justice Jacqueline Dorgan was concerned no sheriff was available to sit in the courtroom. She was also concerned about Dubensky’s right to be tried within a reasonable time.

“I see no reasonable alternative to entering a judicial stay of proceedings,” she said.

Dubensky, who was sitting in the prisoner’s box, grinned at the officers.

During the second trial, court heard that on Sept. 15, 2015, Victoria police responded to a report of 15 people dealing drugs on Pandora Avenue.

Two officers approached the group on foot. The group had their backs to the officers.

One officer saw a man on his bike, holding out his hand to a man wearing a green shirt. He believed he was witnessing a hand-to-hand drug transaction. The second officer didn’t see any drug transaction.

When the man on the bike turned around, the first officer recognized Dubensky.

Dubensky rode toward the police officers on his bike. They asked what he was doing. He said “nothing.” They did not stop and arrest him at that time.

The officers got into a police car and followed Dubensky. They stopped and arrested him for possession of heroin. He was handcuffed and searched. The officers found a used syringe, cash, a record of sales transactions, a knife, bear spray and less than one gram of heroin in four baggies. The officers seized his cellphone, which rang six to eight times and received 20 text messages in the 20 minutes he was being booked at the police station.

Dubenksy argued that his rights had been breached and that police did not have reasonable grounds to believe he had committed an offence at the time of his arrest. He said the arrest was unlawful and the evidence seized in the search should be excluded.

Punnett was concerned about the unreliability and inconsistencies of the officers’ evidence.

He said it was difficult to understand that an officer witnessed a hand-to-hand drug transaction but did not immediately arrest Dubensky.

The officer’s reliability was also undermined by arresting Dubensky for simple possession “despite his observation of drug trafficking,” said Punnett. Only after the arrest and search did he charge Dubensky with possession for the purpose of trafficking.

“In my view, it cannot be proved that the alleged hand-to-hand transaction actually occurred. As a result, there are no reasonable grounds for the warrant for his arrest,” said Punnett.

The judge noted that Dubensky was arrested in a public place on a street busy with cars and pedestrians. He was held by one of the officers, handcuffed and searched. It was not a brief interaction and it was a breach of his privacy rights and dignity, the judge found.

“The evidence in this case is not conclusive of trafficking,” said Punnett. “The accused is also a drug user. At best, it is of an addict trafficker selling at street level. It is not an individual higher up the drug distribution chain.”

On one hand, said the judge, it is important for the prosecution to proceed. On the other, the law must be careful to balance the public interest in the prosecution against the right of the individual not to be arbitrarily arrested when reasonable grounds do not exist.

“The constitution properly protecting the rights of individuals are also in the public interest. … No one should be subject to arrest and search where the reasons are insufficient,” Punnett said.

“Without such an important protection, even the most democratic society could all too easily fall prey to the abuses and excesses of a police state.”

Punnett concluded the administration of justice would be brought into disrepute if the heroin and other items seized were not excluded as evidence under the charter.

ldickson@timescolonist.com

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