Court of Appeal for Ontario

Date: 2019-03-25

Docket: C64594, C64966

Judges: Roberts, Trotter and Paciocco JJ.A.

Between

Her Majesty the Queen Respondent (Appellant on Crown Sentence Appeal)

and

Valdrin Basha and Anton Dokaj Appellant (Respondent on Crown Sentence Appeal)

Counsel

Michael Crystal, for the appellant

Christa Reccord and James Sutton, for the respondent

Heard: March 20, 2019

Appeal Information

On appeal from the ruling of, and convictions entered by, Justice Paul B. Kane of the Superior Court of Justice on October 2, 2017, with reasons reported at 2017 ONSC 5897 and 2017 ONSC 4910, and from the sentence imposed on January 19, 2018.

Reasons for Decision

The Conviction Appeals

[1] Mr. Valdrin Basha was convicted by a Superior Court of Justice after a judge alone trial of: one count of possession of cocaine for the purpose of trafficking, one count of possession of crack cocaine for the purpose of trafficking, one count of possessing proceeds of crime, and another of breach of probation. These charges arose out of the execution of search warrants on July 15, 2014, related to an ongoing drug investigation. Mr. Basha also pleaded guilty to a count of simple possession of cocaine found on his person when he was subsequently arrested.

[2] Mr. Basha appeals his convictions. He argues that the trial judge erred in denying his application for a stay pursuant to s. 11(b) of the Canadian Charter of Rights and Freedoms, and he contends that the trial judge committed errors in applying the law of reasonable doubt – essentially arguing that the convictions were unreasonable. He also urges that his conviction of possession of the drugs found within a residence is inconsistent with his acquittal of possession of firearm charges relating to a firearm also found within that residence.

[3] The Crown resists the conviction appeal, and is appealing the sentence of two years less a day, plus three years of probation, that Mr. Basha received.

[4] We would dismiss both Mr. Basha's conviction appeals and the Crown's sentence appeal.

Charter Delay – Section 11(b)

[5] The trial judge rejected Mr. Basha's s. 11(b) application, concluding that the Jordan ceiling was not exceeded. The trial judge further held that in this transitional case the Crown reasonably relied upon the pre-Jordan law and then made reasonable efforts to adapt to the Jordan standards after the Jordan decision was released.

[6] The trial judge's finding that the Jordan ceiling was not exceeded depends on his conclusion that this ceiling does not include time for judicial deliberation. There is no need to address this issue to resolve this appeal. In our view, even if the Jordan ceiling was exceeded, the trial judge was entitled to consider the delay to be reasonable in this transitional case.

[7] Prior to the release of the Jordan decision, the trial in this matter had already been scheduled. The trial was set to conclude approximately 29 months after the charges were laid, with the first 22 months of that period falling within the Morin period.

[8] The Crown has satisfied us that during the pre-Jordan period, it reasonably relied on the law as it previously existed. The Crown's belief that the case was progressing as required by s. 11(b) was vindicated when, on the eve of the trial, Mr. Basha's first s. 11(b) application failed. The application judge found that the delay in the case to that point related to both the inherent time requirements of the case and institutional delays, and that prejudice to Mr. Basha was "minimal". Mr. Basha does not appeal those findings, and has made clear that the basis of his current appeal is "the extended length of the trial and the period of deliberation after final submissions."

[9] The question in this transitional case is therefore whether the Crown discharged its obligation post-Jordan to ensure that Jordan standards were respected. In our view, the Crown has done so.

[10] When Jordan was decided, the trial dates had already been set and the trial was expected to conclude within the presumptive 30-month ceiling. There was no need for the Crown to attempt to take steps to move the case forward. Nor do we accept Mr. Basha's submission that the Crown alone bore responsibility for underestimating the trial time. The parties underestimated the trial time, which naturally and inevitably will cause additional delay.

[11] When it became apparent during the trial that the trial estimate was inadequate, the Crown undertook reasonable steps to attempt to expedite the matter. These steps included alerting the court, obtaining extended sitting hours, and securing prompt continuation dates, even though these dates were not available for the lead Crown.

[12] In these circumstances, in this transitional case, the trial judge was entitled to find the delay was reasonable.

[13] We therefore reject the s. 11(b) ground of appeal.

Reasonableness of Convictions

[14] We also reject Mr. Basha's challenge to the reasonableness of the trial judge's findings of guilt. The evidence linked Mr. Basha solidly to the two locations where the narcotics were found – a residence that was clearly a stash house, as well as a motor vehicle belonging to Mr. Basha.

[15] Surveillance evidence showed that Mr. Basha frequented and slept occasionally at the stash house, and engaged in acts near the stash house consistent with the sale of narcotics. Keys to the stash house, and to a safe in the stash house that contained narcotics, were found in his possession. His personal documentation was also found in one of the bedrooms. On this record, even though others were connected to the stash house and Mr. Basha was securing drugs at the residence for his own use, the trial judge was entitled to find that he was in joint possession for the purpose of trafficking of all of the narcotics found in the residence.

[16] With respect to the motor vehicle, Mr. Basha was not only the owner of that vehicle, but also the driver and its sole occupant when it was last operated prior to the search. The cocaine found in the vehicle was in quantities and packaging more consistent with trafficking than personal use. In the context of all of the evidence, the trial judge was entitled to find that he possessed these narcotics for the purpose of trafficking.

[17] Given Mr. Basha's role in selling drugs, his ongoing control over the vehicle, and the joint nature of the drug enterprise, evidence that on an earlier occasion another unknown person accessed the area of the vehicle where the drugs were ultimately found is not of such importance that the trial judge was beholden to address it.

[18] Nor has Mr. Basha persuaded us that the finding of his possession relating to the narcotics in the stash house produced a verdict inconsistent with his acquittal of possession charges relating to a sawed-off shotgun recovered from one of the bedrooms in the stash house. In context, Mr. Basha's conduct easily demonstrated his knowledge and control over the narcotics in the stash house. The trial judge was entitled to find that, by contrast, there was insufficient evidence connecting him to the firearm in a bedroom in the stash house that he was not linked to directly.

The Crown Sentence Appeal

[19] The sentence imposed was very lenient given the quantity of drugs and Mr. Basha's prior related record. The maximum reformatory sentence the trial judge imposed of two years less a day, followed by three years of probation, is outside the usual sentencing range for trafficking in cocaine and crack cocaine. However, as R. v. Lacasse, 2015 SCC 64, [2015] 3 SCR 1089, makes clear, imposing a sentence outside of the usual range is not a self-standing sentencing error.

[20] The material questions are whether the sentence was demonstrably unfit, or the trial judge committed any errors of principle that affected that sentence.

[21] In the unusual circumstances of this case, we do not find the sentence to be demonstrably unfit. The trial judge, having had the benefit of the full evidence in the case, including many hours of surveillance tapes, concluded that Mr. Basha was not a principal in the drug trafficking enterprise. He was an addict who, despite his work in carrying, distributing and selling drugs belonging to others, remained of modest financial means. A refugee traumatized by the horrors of a war-torn Kosovo, he began his life in Canada as a young teenager, isolated and troubled. He turned to drugs, and his addiction led him to become involved in drug trafficking.

[22] As he was entitled to do, the trial judge accepted evidence that during the three years Mr. Basha awaited trial, he made significant rehabilitative gains, supported by family and health care professionals. At the time of sentencing, his addiction was under control, he was gainfully employed, he was leading a pro-social life, and his common-law partner was expecting a child.

[23] In an effort to craft a deterrent and denunciatory sentence that could capitalize on Mr. Basha's rehabilitative efforts, the trial judge imposed the sentence he did. Given the trial judge's findings relating to the secondary role Mr. Basha played in the drug trafficking operation and Mr. Basha's personal circumstances, and the admonition that we show deference to a trial judge's sentencing decision, we cannot say that the exceptional sentence the trial judge imposed in this case was manifestly unfit.

[24] Nor has the Crown persuaded us that the trial judge committed any errors of principle that affected the sentence. He understood the importance that denunciation and deterrence must play in Mr. Basha's sentencing, describing how he was bound to apply these principles. He was mindful of the aggravating factors and was entitled to accept mitigating evidence.

[25] The sentence appeal is therefore dismissed.

Conclusion

[26] We dismiss Mr. Basha's conviction appeals, and give leave to the Crown to appeal his sentence, but deny that sentence appeal. We affirm Mr. Basha's convictions and the sentence imposed.

"L.B. Roberts J.A." "G.T. Trotter J.A." "David M. Paciocco J.A."