Pubdate: Tue, 12 Apr 2016
Source: Winnipeg Free Press (CN MB)
Page: B2
Copyright: 2016 Winnipeg Free Press
Author: Mike McIntyre


Police did not breach the rights of a Winnipeg man when they ignored 
his protests, burst into his home without a warrant and found a 
marijuana grow operation inside, a judge has ruled.

Edward Garbacz was seeking to have all of the evidence against him 
dismissed, claiming police had no right to enter his property in June 
2013. But Queen's Bench Justice Karen Simonsen ruled Monday that 
officers acted properly given the unique circumstances surrounding this case.

It all began with an anonymous 911 call that came into police around 
midnight. A man said his "neighbour was beating up his wife" and then 
quickly hung up after providing the address. No other details were 
given. The call was made from a payphone that was almost two 
kilometres away from the scene of the alleged crime.

Four officers were dispatched to the high-priority call and were 
greeted by the accused on the front lawn of his North End home after 
several minutes of knocking. They detected a strong smell of 
marijuana but told court that was of little concern at the time given 
the nature of the 911 call.

Garbacz was described as being "out of breath, nervous and sweating." 
But he also expressed shock when told of the reason police were there.

"He responded that he was alone inside, that there was no one else in 
the house and that he was wasn't married and did not have a 
girlfriend," Simonsen said Monday. "He repeated several times that 
nothing was going on in the home and he did not want police to enter."

Garbacz's story wasn't enough to convince police, who insisted they 
had to go inside to confirm nobody else was there. As they pushed 
their way past the accused, the marijuana smell became even stronger.

"I just smoked (a joint)," Garbacz admitted. Moments later, he said 
"I'm (expletive), I'm (expletive), man" in admitting they were going 
to find a grow operation in the basement.

Approximately 50 plants, along with various pieces of equipment, were 
set up. And Garbacz had been telling the truth - there was no woman 
in the house, no domestic assault.

The 911 call turned out to be bogus, perhaps the product of someone 
who had an axe to grind with him. But Simonsen said there was no way 
for police to have known that and that they were involved in a 
legitimate investigation "to protect life and safety" as required by 
law to justify a warrantless search.

"I accept the officers' testimony that they entered the residence for 
the sole purpose of investigating the 911 call," said Simonsen. "It's 
unthinkable they would take the word of the person answering the door 
without investigating further."

Defence lawyer Barry Sinder argued police used the domestic call as 
an excuse to go on a fishing expedition once they smelled marijuana 
on his client. And he said they should have taken further steps to 
confirm the accuracy of the 911 call, given that the man quickly hung 
up and was calling from quite a distance away despite claiming to be 
a neighbour.

Garbacz returns to court on April 25 for the continuation of his 
case, with the drug evidence now allowed to be used against him. He 
is facing a charge of possession for the purpose of trafficking. 
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