COURT FILE NO.: Crim J(P) 918/11
DATE: 20120109
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
D. D'Iorio, for the Crown
- and -
MICHAEL BLAZEVIC and SARGON BABA
J. Collins for Mr. Blasevic
B. Moss for Mr. Baba
Defendants
HEARD: November 28, 29, 30 and December 1, 2, 3, 5 ,6, 9, 12 and 13, 14, 15, and 19, 2011
REASONS FOR JUDGMENT
Ricchetti, J.
The Charges
[1] Mr. Baba and Mr. Blasevic have been charged as follows:
Count 1: That they, on or about the 20th day of July, 2010, at the City of Brampton, in the Central West Region, did possess a loaded restricted firearm, contrary to section 95(1) of the Criminal Code of Canada;
Count 2: That they, on or about the 20th day of July, 2010, at the City of Brampton, in the Central West Region, did possess a firearm; to wit: a handgun knowing that they were not a holder of a license under which he may possess it, contrary to section 92(1) of the Criminal Code of Canada;
Count 3: That they, on or about the 20th day of July, 2010, at the City of Brampton, in the Central West Region, did conspire together to commit an indictable offence, unlawful confinement of a person at 52 Madelaine Crescent Brampton, contrary to section 465(1)(c) of the Criminal Code of Canada; and
Count 4: That they, on or about the 20th day of July, 2010, at the City of Brampton, in the Central West Region, did have in their possession a firearm while they were prohibited from doing so by reason of orders made pursuant to section 109 of the Criminal Code of Canada, contrary to section 117.01 of the Criminal Code of Canada.
The Trial
[2] There were Defence pre-trial Charter motions. The rulings are set out in my reasons dated December 9, 2011.
[3] At the beginning of trial, all counsel agreed the evidence at the pre-trial motions formed part of the trial evidence. At the commencement of trial, Counsel also agreed the trial would proceed at the same time as Mr. Baba’s further Charter motion(s) and the evidence would apply to both the further motions and trial.
[4] At trial, the Defence requested and the Crown recalled several of the police officers who had testified at the pre trial motions to give further evidence.
[5] The rulings on the further Charter motions by Mr. Baba are set out in my reasons dated December 14 and 19, 2011.
[6] Prior to closing the Crown’s case, the Crown sought to recall Sgt. McFadden, one of the witnesses who testified on the pre-trial motions. The Defence objected to this. I permitted the Crown to recall Sgt. McFadden as:
i) the Crown had not yet closed its case;
ii) Sgt. McFadden’s prior evidence was given with respect to the pre-trial motions and before the agreement, on the record, that the pre-trial evidence applied to the trial; and
iii) the Defence had previously required two other police officers who had testified at the pre-trial motions to re attend for cross examination and there appeared to be no difference with the request to recall this police officer save and except the request was from the Crown.
[7] The Defence did not call any evidence.
The Facts
[8] On July 30, 2010, Constables Jeffery Parent and David Salvatore were on uniformed, community policing, bicycle patrol in Brampton. 1785 Queen Street in Brampton was part of their patrol area.
[9] 1785 Queen Street is a strip mall. At the rear of the strip mall there are no public entrances to the retail area. It is used for garbage and employee smoke breaks. There is one row of parking at the rear of the strip mall and then a high brick wall. As a result the rear of the strip mall is generally not visible to the public, fairly isolated and used infrequently.
[10] On this day, Constables Salvatore and Parent decided to patrol the strip mall. They rode their bicycles across the front of the strip mall and then turned around towards the rear of the mall.
[11] At approximately 12:02 p.m., Constable Salvatore saw a group of six men standing between two parked vehicles in the back alley. One of the vehicles was a Jeep. The other vehicle was an Infiniti. The vehicles had been backed into the parking spots leaving space in between them.
[12] The six men were later identified as:
Michael Blazevic;
Sargon Baba;
Ertug Direkoglu;
Daine Edie;
Patrick Palmer; and
Phillip Ferreira.
[13] Mr. Baba and Mr. Palmer were standing near the open, rear passenger door of the Jeep using a laptop in the Jeep. The laptop was connected to the power from the Jeep. Mr. Blasevic was walking back and forth between the vehicles. Mr. Blasevic had a satchel over his shoulder. Constable Salvatore noticed Mr. Blazevic appeared to be attempting to hide the satchel he was carrying. The rest of the men were talking amongst themselves generally, in the area between the vehicles.
[14] Upon seeing Constable Salvatore, the men became agitated, fidgety, appeared nervous and stopped what they had been doing. The rear passenger door of the Jeep was closed but it is not clear by who, Mr. Baba, Mr. Palmer or one of the other men.
[15] A couple of minutes later, Constable Parent arrived at the rear of the strip mall on his bicycle. He saw the six men and Constable Salvatore in conversation.
[16] Constable Parent decided to ride his bicycle towards the Infiniti. He looked through the back window. Constable Parent saw, on the back seat, gloves, a flat head screwdriver, two baseball caps, a black winter hat (a toque), black bandana and a long sleeve black shirt.
[17] Other police units were requested. Approximately five minutes later, Officer Mohammed arrived in a marked police cruiser.
[18] Constable Salvatore asked Mr. Blasevic if he was the owner of the Jeep. Mr. Blasevic said no - it was a rental. Mr. Palmer admitted the Infiniti was his vehicle.
[19] Constable Salvatore asked who the operator of the Jeep was. No one immediately answered. Constable Salvatore became suspicious there might be something in the Jeep the men didn't want him to know about.
[20] Constable Parent was given inconsistent information regarding who was the owner of the clothing in the back of the Infiniti.
[21] A few minutes later Sergeant Reynolds arrived in another marked police cruiser.
[22] With sufficient police on scene, Constable Salvatore decided to look at the Jeep through the windows. Constable Salvatore asked Mr. Blasevic whether he was the driver of the Jeep. This time, Mr. Blasevic admitted he was the driver.
[23] Constable Salvatore walked over to the Jeep, looked in the window and saw an opened bottle of Jack Daniel's whiskey. Constable Salvatore told Mr. Blasevic that he was going to search the vehicle under The Liquor License Act. Mr. Blasevic nodded and said “OK”.
[24] Constable Salvatore conducted a search of the Jeep. The rear seats of the Jeep had been folded down to form an open, large cargo area behind the front seats. Visible under the driver's seat, Constable Salvatore found a new and unused roll of duct tape. On the cargo area, he saw a number of items including four engaged zip ties consisting of three interlocked zip ties each (Constable Salvatore identified these as homemade zip tie handcuffs and demonstrated how they could effectively be used as homemade handcuffs) and black, hand fitting gloves. These were cause for concern to Constable Salvatore.
[25] Constable Salvatore told Constable Parent what he had seen and the need for more police units. Constables Salvatore or Parent didn't announce what had been seen in the Jeep to the men.
[26] The events continued to unfold quickly. Mr. Blasevic started to walk away from the vehicles - east from the Infiniti. Constable Parent went over and stood in front of Mr. Blasevic. Mr. Blasevic appeared tense and agitated and was looking around. Constable Parent became concerned Mr. Blasevic might run. Constable Parent asked Mr. Blasevic a number of questions but Mr. Blasevic mumbled inaudible responses.
[27] During this same period of time, Constable Salvatore saw Mr. Baba leaning against the passenger side of the Jeep concealing something behind him. Constable Salvatore went over and found what appeared to be a walkie talkie (also referred to as a scanner) clipped onto the outside of the Jeep car door. Constable Salvatore asked whether it was Mr. Baba's walkie talkie. Mr. Baba said no - it belonged to a friend (a tow truck driver) of his who was eating in the restaurant. His friend had left it with Mr. Baba to hold it. Constable Salvatore had not seen any tow truck in front of the strip mall. This made no sense to Constable Salvatore. Constable Salvatore put the walkie talkie on the roof of the Jeep and continued his Liquor License Act search of the passenger side of the Jeep. He saw the laptop in "sleep" mode. The laptop had a USB stick in the side of it.
[28] Officer Hagiman arrived in another marked police cruiser. Officer Mohamed, having run the plates to the Jeep, told Constable Salvatore that the Jeep was a rental vehicle belonging to Hertz Canada and had been reported stolen.
[29] It was 12:19 p.m. The police immediately arrested all six men for possession of stolen property. The police provided the men their Charter rights and caution.
[30] Constable Parent then searched Mr. Blasevic's satchel. The satchel contained a number of items including "pepper spray", a black "flick" knife, black form fitting gloves, and a large amount of cash.
[31] Mr. Blasevic asked Constable Parent to get his blackberry and battery out of the Jeep. Mr. Blasevic said he didn't know why the Jeep was reported stolen as it was a rental but maybe there was a missed or overdue payment.
[32] The keys to the Jeep were in the ignition.
[33] When asked by Constable Parent whether Mr. Blasevic wanted to contact counsel, Mr. Blasevic said words to the effect that he was "fucked" and "it doesn't matter, I'm going away for a long time".
[34] Each of the remaining men were searched and transported to the police station.
[35] After the men were taken to the police station, Constable Salvatore searched the Jeep and seized the items he had previously seen in the Jeep. Constable Parent searched the Infiniti.
[36] A zippered black case was located in the driver's door pocket of the Jeep. The case contained a 40 calibre Smith and Wesson handgun with a loaded magazine with 13 rounds of ammunition (although no bullet was chambered).
[37] Constable Parent searched the Infiniti and seized various clothing and the screwdriver, as well as some marijuana in the trunk.
[38] Constable McFadden, with the Central Robbery Bureau, became involved later the same afternoon. Constable McFadden opened the laptop which had been seized from the Jeep. It was in “sleep” mode. Constable McFadden placed his finger on the “touch pad”. The screen lit up showing an active web site running on the laptop – usfleettracking.com. The screen showed a geographical image of the Brampton area. The site was from US Fleet Tracking Corp. In the top right hand corner there was a log in with an account name for “Trevor James”. Underneath, was a password box. The password was not visible. Constable McFadden’s interaction with the laptop ended.
[39] Constable McFadden contacted US Fleet Tracking Corp. This corporation sells or rents GPS units to purchasers, such as a transportation company, to put these units in its vehicles and then “live” track the vehicles’ locations through usfleettracking.com.
[40] US Fleet Tracking Corp. was familiar with the "Trevor James" account. Constable McFadden explained he was a police officer and was investigating a matter involving this account. US Fleet Tracking Corp. provided Constable McFadden access, on a police computer, to the “Trevor James” account.
[41] Using usfleettracking.com and the “Trevor James” account, the police were able to determine that a US Fleet Tracking Corp. GPS unit had been placed on a Mercedes vehicle belonging to “Marcel Jones” of 52 Madelaine Crescent, Brampton. This vehicle was being tracked under the account name of “Trevor James”. Another tracking device was found on Mr. Jones' vehicle but there was no further evidence regarding this second device.
[42] There is no evidence as to who Trevor James is, who set up this account with US Fleet Tracking Corp., who paid for the account or any further information regarding this account with US Fleet Tracking Corp.
[43] What is clear from the evidence is that the last internet access from Mr. Baba’s laptop when the police arrived and before it went into “sleep” mode, was the access of usfleettracking.com on the Trevor James account access page. As described by Sgt. McFadden, this was an active web site when the laptop came out of sleep mode. I have no hesitation concluding that, when the constables arrived at the rear of the strip mall, Mr. Baba and Mr. Palmer were accessing the Trevor James account on usfleettracking.com.
[44] The Defence suggestion that since the GPS # was provided by Mr. Chappelle from US Fleet Tracking Corp. to the police it is possible that what was being tracked on the Trevor James account was a GPS other than on Mr. Jones’ Mercedes. This is nothing than mere speculation. Mr. Baba’s laptop was accessing the Trevor James account when the constables arrived at the strip mall. The police were given access by US Fleet Tracking Corp. to their Trevor James account. The Trevor James account had a specific GPS # - 7005775. The GPS unit found on Mr. Jones’ Mercedes had the number - 7005775. Since US Fleet Tracking Corp.’s Trevor James account tracked the GPS unit placed on Mr. Jones’ Mercedes, there can be no doubt that what was being tracked on Mr. Baba’s laptop prior to the police arrival was the location of Mr. Jones’ Mercedes at that time.
[45] Angela Calce was the renter of the Jeep. There is good reason to be cautious regarding the reliability of Ms. Calce’s evidence. She has a relationship with one of the men – Mr. Direkoglu – and has two children with Mr. Direkoglu. Ms. Calce also knows Mr. Baba. Ms. Calce, Mr. Baba and Mr. Direkoglu were, in approximately 2005, involved in guns and drug charges. Ms. Calce pleaded guilty at the time to drug possession.
[46] Hertz Canada reported the Jeep stolen. What is accepted from Ms. Calce’s evidence (significant portions of which are corroborated by the written documents from Hertz Canada) is the following:
i. She was unemployed at the time of the rental of the Jeep;
ii. the Jeep was rented on May 13, 2010;
iii. Ms. Calce gave Hertz Canada her prior address – not her then current address;
iv. the credit card number used by Hertz Canada was wrong – off by one number;
v. Ms. Calce provided a cash deposit for the Jeep;
vi. no other payments were made for the rental of the Jeep;
vii. on June 17, 2010 Hertz Canada wrote to Ms. Calce, at her old address, advising that the payments had not been made and, if the Jeep was not returned, it would be reported stolen to the police;
viii. Ms. Calce permitted Mr. Blasevic to use the Jeep a few days prior to July 30, 2010;
ix. Ms. Calce again loaned the vehicle to Mr. Blasevic again on July 29, 2010 for use on July 30, 2010;
x. at some other earlier unspecified times, Mr. Direkoglu also borrowed the Jeep;
xi. Ms. Calce denied she had any personal property in the Jeep when she gave it to Mr. Blasevic. She admitted the baby clothes in the Jeep belonged to her. However, it is clear there was some of her clothing and shoes left in the Jeep. This is not significant in my determination regarding the reliability of her evidence;
xii. Ms. Calce denied that the firearm, duct tape, zip ties, “disguise clothing” or the laptop belonged to her or that she knew anything about them. This is at the heart of her evidence which the Defence suggest should not be believed or which raises a reasonable doubt as to whether the firearm was known to be in the Jeep by Mr. Blasevic or Mr. Baba. I accept Ms. Calce's evidence on this point. I will deal with the reasons why I accept this evidence from a “Vetrovec” type of witness below; and
xiii. Ms. Calce had seen a similar black case used by Mr. Direkoglu with a writing pad in it.
[47] Mr. Marcel Jones resides at 52 Madelaine Cres., Brampton with his wife and children. Mr. Jones identified photographs of his home and a video showing him driving along the street. The photographs and video were contained in the laptop and cell phones seized from Mr. Baba and Mr. Palmer.
[48] Mr. Jones is the owner of the Mercedes on which the US Fleet Tracking GPS device was found. Mr. Jones had no idea a GPS device had been attached to his vehicle or that he was being tracked. Mr. Jones is a business person of some significant net worth, owning several successful businesses.
[49] The police obtained search warrants to search Mr. Baba's laptop, a cell phone found on Mr. Baba’s person and a cell phone found on Mr. Palmer’s person.
[50] Let me review all of the items seized by the police during the course of this investigation:
(i) From the Jeep at the scene on July 30, 2010:
• Two bottles of whiskey – one opened;
• one roll of duct tape – unused – found under the driver’s side seat;
• four homemade zip tie handcuffs - each of which were created by three interlocking zip ties – found on the Jeep rear cargo area;
• one pair of form fitting “Easton” black gloves – also found in the cargo area;
• a camouflage coloured mask located in the glove box. This covers everything below the eyes of the wearer;
• Mr. Baba’s laptop with its power cord connected to the Jeep power supply;
• attached to Mr. Baba's laptop was a Fido Internet stick used for connecting the laptop to the internet wirelessly at any location;
• a laptop case which contained an opened bag of zip ties similar to the ones which had been used to make the homemade zip tie handcuffs and some paper;
• a Uniden “Trunk Tracker III” – located on the outside rear passenger door handle. This was referred to as a “walkie talkie” and a scanner by Constable Salvatore;
• in the driver’s door pocket, there was a black zippered case – about 12 inches by 14 inches large and 1 inch deep. Located in the case was a handgun – a 40 calibre Smith and Wesson. There was a magazine in the firearm and there were 13 rounds of ammunition in the magazine.
(ii) From Mr. Blasevic’s satchel which he had around his chest area:
• A container “Spike dog repellent”. There was considerable dispute over this item as the police officers referred to it as pepper spray. Whether it is the same as pepper spray is not significant. What is significant is that it can be used on animals and, no doubt, on persons as well to disable them. The label provides for first aid if there is “external contact” by the user and that the symptoms would disappear in 45 minutes;
• a black flick knife;
• black metal handcuffs;
• Scotch tape – typical household type of tape;
• black form fitting gloves;
• a wallet;
• a large amount of cash; and
• keys (not for the handcuffs).
(iii) From Mr. Palmer’s iPhone:
• An extracted picture file from usfleettracking.com showing a typical login screen and a map of North America;
• an aerial view from usfleettracking.com showing the Dixie Road and Madelaine Cres. area in Brampton; and
• a video taken from the passenger’s seat looking out onto the surrounding traffic taken on July 27, 2010 at 5:28 pm. The video was taken while Mr. Palmer was driving the vehicle and Mr. Ferreira in the passenger seat with a cell phone taking the video. At one point Mr. Jones is seen in his Mercedes. It is clear that Mr. Palmer and Mr. Ferriera were surreptitiously following and taking a video of Mr. Jones. At one point, having followed Mr. Jones for some time and being concerned Mr. Jones might see them following him, Mr. Ferreira says: “Nobody can be that stupid. If this guy’s that stupid, oh fuck, he’s going to be easy....”
(iv) From Mr. Baba’s laptop located at the back of the Jeep cargo area:
• Pictures of Mr. Baba, by himself and with other persons;
• pictures of firearms – it is not known whether these are real firearms, where or how the photographs were taken;
• an Internet aerial view of the Dixie Road area accessed at 11:50 a.m. on July 30, 2010;
• an Internet aerial view of the backyards which included Mr. Jones’ home accessed at 11:50 a.m. on July 30, 2010;
• an Internet aerial view of the Dixie Road and Madelaine Crescent area (including Mr. Jones home) accessed at 11:50 a.m. on July 30, 2010;
• an Internet aerial view of Madelaine Crescent area accessed at 11:50 a.m. on July 30, 2010;
• a photograph of the front of Mr. Jones’ home at 52 Madelaine Crescent taken on July 12, 2010;
• the laptop had last accessed usfleettracking.com at 11:50 a.m. on July 30, 2010;
• the laptop had accessed usfleettracking.com 17 times prior to July 30, 2010; and
• the laptop had accessed mytrackingsource.com on July 30, 2010 at 2:01 a.m. and had accessed this site 16 times prior to July 30, 2010. There is no further evidence on what this site does or whether it had any connection with the activities of the 6 men on July 30, 2010.
(v) From Mr. Baba’s cell phone:
• There are a number of photographs of Mr. Blasevic sometimes with others. Some of these photographs were received as late as the morning of July 30, 2010;
• there are a number of photographs showing Mr. Baba and other persons;
• a number of photographs of firearms– it is not known whether these are real firearms, where or how the photographs were taken; and
• there are a number of text messages. One message at 2:09 a.m. July 30, 2010 refers to “mytrackingsource.com” and whether someone was “on the move”.
(vi) From the Infiniti:
• Two pairs of black gloves – one pair was identical to the pair found in Mr. Blasevic’s satchel – found in the vehicle’s interior;
• a black toque – found in the vehicle’s interior;
• a black long sleeve shirt – found in the vehicle’s interior;
• a black bandana – found in the vehicle’s interior;
• a screw driver – found in the vehicle’s interior;
• a cell phone – found in the vehicle’s interior;
• watch – found in the vehicle’s interior;
• Bluetooth on the visor – found in the vehicle’s interior;
• two black toques – found in the trunk; and
• a bag of marijuana – found in the trunk.
(vii) On Mr. Jones’ Mercedes:
• A magnetic, sealed container which inside had an electronic device for tracking by usfleettracking.com on the “Trevor James” account. The GPS unit has the same number as the unit being tracked by the “Trevor James” account on usfleettracking.com.
[51] It was admitted by Defence that:
• the firearm found in the Jeep was a loaded restricted firearm;
• it was unlawful for Mr. Blasevic or Mr. Baba to possess the firearm;
• neither Mr. Blasevic nor Mr. Baba were authorized to possess the firearm; and
• both Mr. Blasevic and Mr. Baba were, as of July 30, 2010 subject to Prohibition Orders under the Criminal Code.
Conspiracy to commit an Indictable Offence
The Law
[52] The proper approach to deal with a charge of conspiracy is set out in R. v. Carter 1982 CanLII 35 (SCC), [1982], 1 S.C.R. 938. The Supreme Court of Canada set out a three-tiered approach:
I. Considering all the evidence, the trier of fact must conclude beyond a reasonable doubt that the conspiracy charged in the indictment existed. This determination is independent of any consideration as to whether an indicted or unindicted conspirator is actually a member of the conspiracy charged.
II. Once the trier of fact is satisfied beyond a reasonable doubt that the conspiracy charged existed, the trier of fact must determine, exclusively on the basis of “evidence directly receivable against the accused”, whether the accused was probably a member of the conspiracy. The trier of fact is not to consider co-conspirator hearsay evidence at this stage of deliberations.
III. If the trier of fact concludes that an accused was probably a member of the conspiracy, the trier of fact must determine whether the Crown has proven that accused’s membership in the conspiracy beyond a reasonable doubt. At this stage of deliberations, the trier of fact is entitled to consider hearsay acts and declarations of co-conspirators made in furtherance of the objects of the conspiracy. The trier of fact must be cautioned that the mere fact that the conclusion has been reached that an accused is probably a member of a conspiracy does not make a conviction automatic.
Was there a conspiracy?
[53] Has the Crown established that a conspiracy existed to unlawfully confine someone at 52 Madelaine Cres. ?
[54] The fact that the exact person to be unlawfully confined is not identified is not fatal. See R. v. Gassyt, 1998 CanLII 5976 (ON CA), [1998] O.J. No. 3232 (Ont. C.A.) at paras. 20 and following.
[55] The Crown must establish beyond a reasonable doubt that two or more persons agreed to pursue the same unlawful object at the same time or the same place – in other words, a meeting of the minds, a consensus to affect an unlawful purpose. See R. v. Papalia, [1979] 2. S.C.R. 256 at 276-277.
[56] However, proof of a conspiracy by direct evidence is rarely available. Typically, evidence of overt acts and statements may be sufficient to logically infer that there was an agreement amongst the conspirators. In R. v. Gassyt, supra at para 17, the Court of Appeal stated:
....I would think it would have been the rare case where direct evidence would be available that the conspirators met, discussed and actually agreed to carry out a common unlawful purpose. A conspiracy is more likely to be proven by evidence of overt acts and statements by the conspirators from which the prior agreement can be logically inferred. The following words of Rinfret J. in Paradis v. The King (1934), 1933 CanLII 75 (SCC), 61 C.C.C. 184 at 186 (S.C.C.) are apposite to this issue:
Conspiracy like all other crimes, may be established by inference from the conduct of the parties. No doubt the agreement between them is the gist of the offence, but only in very rare cases will it be possible to prove it by direct evidence. Ordinarily the evidence must proceed by steps. The actual agreement must be gathered from “several isolated doings” (Kenny, Outlines of Criminal Law, 13 ed., p.294) having possibly little or no value taken by themselves, but the bearing of which one upon the other must be interpreted; and their cumulative effect, properly estimated in the light of all surrounding circumstances, may raise a presumption of concerted purpose entitling the jury to find the existence of the unlawful agreement.
[57] In this case, there is ample evidence to establish beyond any doubt that there was an agreement to commit the indictable offence of unlawful confinement of someone at 52 Madelaine Cres. In fact, the evidence establishes that the execution of that agreement was imminent when the police, by chance, happened to come upon the men at the rear of the strip mall on July 30, 2010. The evidence includes:
i. The men were meeting in a relatively secluded area behind a strip mall at the time of day when there would be little traffic or be seen by the public in that area;
ii. this meeting took place very close (within minutes) to 52 Madelaine Cres.;
iii. the men came from various distant places including Oakville and Mississauga;
iv. a US Fleet Tracking Corp. device had been surreptitiously placed on Mr. Jones’ Mercedes, the owner of 52 Madelaine Cres. Brampton and a wealthy business person;
v. two of the men were using a laptop when the police came upon them, and were on usfleettracking.com on the Trevor James account;
vi. the US Fleet Tracking Corp. account for Trevor James tracked a GPS device placed on Mr. Jones’ Mercedes. Both the Trevor James account and the GPS unit on Mr. Jones’ Mercedes had the same serial number;
vii. the Jeep contained the laptop connected to usfleettracking.com in order to ascertain the “live” location of Mr. Jones’ Mercedes at approximately the same time as the meeting behind the strip mall and when the police arrived.
viii. a Jeep was used by the men. It was a rental. It had been rented by someone known to the men;
ix. the laptop had power from the Jeep and was connected to the internet through an internet stick;
x. the Jeep contained the necessary equipment to carry out the unlawful confinement – homemade zip tie handcuffs, duct tape, camouflage mask, black gloves, a walkie talkie/scanner, more zip ties and a hand gun;
xi. the men were outside their vehicles within a short distance of the rear passenger side of the Jeep where two of the men, Mr. Baba and Mr. Palmer were using the laptop;
xii. Mr. Blasevic’s satchel also contained the necessary equipment to carry out an unlawful confinement – a repellent which could be used on a person, black gloves, a knife and metal handcuffs;
xiii. the Infiniti also contained the necessary equipment to carry out an unlawful confinement – gloves, toque, black shirt, screw driver (for forced entry) and a black bandana;
xiv. Mr. Palmer’s phone had surveillance video of Mr. Jones’ which had been surreptitiously taken a few days earlier;
xv. Mr. Palmer’s phone also used usfleettracking.com for the same area which included 52 Madelaine Cres. Brampton;
xvi. Mr. Baba’s phone had a photograph of Mr. Jones’ home, aerial photographs of the area and had been used to access usfleettracking.com; and
xvii. Mr. Baba’s laptop had been used numerous times to access usfleettracking.com.
[58] The only rationale conclusion, beyond any reasonable doubt, is that there was an agreement to effect an unlawful confinement of someone at 52 Madelaine Cres. Brampton.
Was Mr. Blasevic a Probable Member of the Conspiracy?
[59] The next step is to determine whether Mr. Blasevic is a probable member of the conspiracy based solely on the direct admissible evidence against Mr. Blasevic? Again there is no doubt the Crown has met this burden. This conclusion is supported by:
i. Mr. Blasevic was the driver of the Jeep which contained, in the open cargo area, the items described above which could be used to carry out an unlawful confinement;
ii. Mr. Blasevic had a number of items on his person which could be used to carry out an unlawful confinement;
iii. Mr. Blasevic was one of the men at the meeting behind the strip mall close to 52 Madelaine Cres. Brampton;
iv. Mr. Blasevic was pacing between the two vehicles while Mr. Baba and Mr. Palmer were using the laptop, connected to the Jeep, to determine the location of Mr. Jones’ Mercedes;
v. Mr. Blasevic was very nervous and agitated during the encounter with the police at the rear of the strip mall;
vi. upon his arrest, when asked about contacting counsel, Mr. Blasevic said something to the effect he was “going away for a long time” – a statement which suggests he knew he was involved in some criminal activity; and
vii. Mr. Blasevic and Mr. Baba, the person using the laptop to track Mr. Jones' Mercedes, are known to each other.
Was Mr. Baba a Probable Member of the Conspiracy?
[60] Is Mr. Baba a probable member of the conspiracy based solely on the direct admissible evidence against Mr. Baba? I am satisfied the Crown has met this burden. This is supported by the following evidence:
i. Mr. Baba is the owner of the laptop, the one used to access usfleettracking.com a number of times and at the time the police arrived at the strip mall;
ii. Mr. Baba was the one (or in concert with Mr. Palmer) using the laptop when the police arrived;
iii. Mr. Baba had on his laptop a photograph of 52 Madelaine Cres. Brampton which had been taken a short time earlier;
iv. Mr. Baba had on his laptop aerial photos of 52 Madelaine Cres. Brampton;
v. The only laptop case found in the Jeep can only be inferred to be for Mr. Baba’s laptop. The case contained an open bag of zip ties which are identical to the ones used to make the home made zip tie handcuffs;
vi. Mr. Baba attempted to hide the walkie talkie/scanner from the police’s view during the police encounter; and
vii. Mr. Baba was one of the men meeting at this secluded area close to 52 Madelaine Cres. Brampton.
Application of the Conspiracy Hearsay Exception
[61] As a result of the above determinations, the conspiracy exception to hearsay is applicable in this case.
[62] The evidence of Mr. Baba in furtherance to the conspiracy is evidence against Mr. Blasevic and the evidence of Mr. Blasevic in furtherance of the conspiracy is evidence against Mr. Baba.
The Role of Mr. Palmer and Mr. Ferriera as Co-conspirators
[63] I am satisfied the Crown has established, on the balance of probabilities, that each of Mr. Palmer and Mr. Ferriera were co-conspirators to unlawfully confine someone at 52 Madelaine Cres. The evidence which supports this is the following:
i. Both Mr. Palmer and Mr. Ferriera were part of the group of six men meeting behind the strip mall on July 30, 2010, located close to 52 Madelaine Cres. Brampton;
ii. Mr. Palmer’s car, the Infiniti, had a number of items which could or were to be used to commit an unlawful confinement, namely the screw driver (for a break in) and the black clothing (for a disguise);
iii. Mr. Palmer was with Mr. Baba using the laptop in the back of the Jeep when Constable Salvatore arrived;
iv. Both Mr. Palmer and Mr. Ferreira were involved in the surreptitious surveillance and videotaping of Mr. Jones; and
v. Mr. Ferreira made the comment to Mr. Palmer that, if Mr. Jones was that stupid, "he's going to be easy".
[64] Having determined that Mr. Palmer and Mr. Ferreira were co-conspirators, the actions of both Mr. Palmer and Mr. Ferriera, in taking the surreptitious video surveillance of Mr. Jones, and the items in the Infiniti, were in furtherance of the conspiracy to unlawfully confine someone at 52 Madelaine Cres. and are admissible against Mr. Blasevic and Mr.Baba.
Has the Crown proven the Offence against Mr. Blasevic?
[65] The final determination is whether the Crown has established, beyond a reasonable doubt and based on all of the admissible evidence including evidence under the co-conspirator’s exception, that Mr. Blasevic was a member of the conspiracy to unlawfully confine a person at 52 Madelaine Cres. Brampton.
[66] There is can be no reasonable doubt that Mr. Blasevic was a member of the conspiracy to unlawfully confine a person at 52 Madelaine Cres. Brampton.
a. Mr. Blasevic was the driver of the Jeep;
b. On the rear cargo area of the Jeep he was driving and clearly visible were homemade zip tie handcuffs;
c. There was a camouflage mask in the glove compartment of the Jeep. It is clear beyond a reasonable doubt that the mask could be used for an unlawful confinement, and given the rest of the circumstances, Mr. Blasevic knew the mask was in the glove compartment of the Jeep;
d. Mr. Blasevic had metal handcuffs in his satchel;
e. Mr. Blasevic had a knife in his satchel;
f. Mr. Blasevic had a spray repellent in his satchel;
g. Mr. Blasevic had form fitting gloves in his satchel;
h. Mr. Blasevic was one of the men meeting at this secluded location near 52 Madelaine Cres.;
i. Mr. Baba, Mr. Palmer, two other men at this meeting, had aerial photos of the vicinity of 52 Madelaine Cres.;
j. Mr. Baba used his laptop to monitor the live location of Mr. Jones' Mercedes and was doing so from the Jeep when the police arrived. Mr. Blasevic was pacing within several feet Mr. Baba at the time;
k. Mr. Baba had, with his laptop, accessed the US Fleet Tracking Corp. site a number of times. The only logical inference was to monitor the location of Mr. Jones' Mercedes;
l. Mr. Palmer had, with his phone, accessed the usfleettracking.com;
m. Mr. Palmer and Mr. Ferreira had, in furtherance of the conspiracy, surreptitiously followed and observed Mr. Jones' Mercedes several days earlier;
n. Mr. Ferreira made the comment regarding Mr. Jones that if he was that stupid, "he's going to be easy" – logical inference being the unlawful confinement of Mr. Jones; and
o. Mr. Palmer had in his vehicle clothes and equipment that could be used to carry out an unlawful confinement.
[67] Any one of the above pieces of evidence might be explained away. However, the totality of the evidence permits no other reasonable or rationale explanation other than Mr. Blasevic was member of the conspiracy to unlawfully confine a person at 52 Madelaine Cres. Brampton. The Crown has met its burden of proving beyond a reasonable doubt that Mr. Blasevic was a member of the conspiracy.
[68] Mr. Blasevic is guilty on this count.
Has the Crown proven the Offence against Mr. Baba?
[69] Has the Crown has established, beyond a reasonable doubt and based on all of the admissible evidence including evidence under the co-conspirator’s exception, that Mr. Baba was a member of the conspiracy to unlawfully confine a person at 52 Madelaine Cres. Brampton?
[70] I will not repeat the evidence from above which applies against Mr. Baba because of the co-conspirator’s exception. Let me just point to several pieces of the direct evidence against Mr. Baba:
i. Mr. Baba was using his laptop to track Mr. Jones’ Mercedes on July 30, 2010. He has accessed the same site many times before – the sole inference being for the same purpose;
ii. Mr. Baba’s laptop also contained photo’s of Mr. Jones’ home and aerial photos of the area; and
iii. Mr. Baba’s laptop case contained zip ties like those used to make the home made zip tie handcuffs;
[71] It is clear that when all of the admissible evidence is considered against Mr. Baba, the Crown has established beyond a reasonable doubt that he was a member of the conspiracy. Again, there can be no doubt or other rationale explanation to the totality of the evidence against Mr. Baba.
[72] Mr. Baba is guilty on this count.
Possession of the Firearm
The Law
[73] S. 4(3) of the Criminal Code provides:
For the purposes of this Act,
(a) a person has anything in possession when he has it in his personal possession or knowingly
(i) has it in the actual possession or custody of another person, or
(ii) has it in any place, whether or not that place belongs to or is occupied by him, for the use or benefit of himself or of another person; and
(b) where one of two or more persons, with the knowledge and consent of the rest, has anything in his custody or possession, it shall be deemed to be in the custody and possession of each and all of them.
[74] This section was dealt with by the Supreme Court of Canada in Beaver v. The Queen (1957), 1957 CanLII 14 (SCC), 118 C.C.C. 129 (S.C.C.), which held that possession must co-exist with knowledge of what the thing is and some intentional act of control over the item.
[75] Knowledge need not be proven by direct evidence. It may be established by inference drawn from circumstantial evidence. As Justice Hill wrote in the decision of R. v. McIntosh, [2003] O.J. No. 1267 at para. 43;
In crimes of unlawful possession, it is "not necessary for the prosecution to prove the required knowledge by direct evidence ... it could be inferred from the surrounding circumstances": R. v. Aiello (1978), 1978 CanLII 2374 (ON CA), 38 C.C.C. (2d) 485 (Ont. C.A.) at 488; see also R. v. Anderson, 1995 CanLII 1338 (BC CA), [1995] B.C.J. No. 2655 (C.A.) at para. 15-16. Frequently then, such cases are proven by circumstantial evidence: see R. v. Meggo, [1998] O.J. No. 2564 (C.A.) at para. 1.
[76] However, it is not sufficient for the court to draw such an inference simply because the accused was in near proximity to the contraband. In R. v. Bullock, Downer and White, [2000] O.J. No. 798 (Ont. Sup. Ct.) at paras. 6 and 9 the court stated:
The case of R. v. Iturringa, 1993 CanLII 2517 (BC CA), [1993] B.C.J. No. 2901 and R. v. Douglas, 1974 CanLII 1514 (ON CA), 1974, 18 C.C.C. (2d) 189, R. v. Amado 1996 CanLII 2961 (BC SC), [1996] B.C.J. No. 1943 stand for the proposition that when the contraband alleged to be in possession by an accused is concealed and not in the immediate close proximity of an accused, that without further evidence, the Crown will not have satisfied the degree of knowledge and control necessary to prove possession beyond a reasonable doubt.
[77] In R. v. McIntosh, [2003] O.J. No. 1267 (Sup. Ct.). Justice Hill, at paras. 44, 46 and 53 stated:
The proximity of the firearm and ammunition to the crack cocaine suggests the handgun was meant to protect a drug dealer from loss of the drug and/or the proceeds of its sale. The manner of concealment of the crack cocaine and the firearm in the Explorer was designed to keep the prohibited items out of view while maximizing access to them. Though concealed out of sight behind the Explorer glove box, the crack cocaine and weapon were readily accessible to an occupant of the front seat of the vehicle for purposes of sale transactions from the vehicle or on foot out of the Explorer.
The quantity of crack cocaine is clearly for the purpose of trafficking. The value of the illicit drug, thousands of dollars worth from retail sales, suggests the asset is one the owner would not risk losing. In other words, a drug dealer, as a person with business interests in mind, is unlikely to expose cargo of this value to the risk of discovery or loss by relinquishing to another possession of the receptacle concealing the asset.
Not everyone who drives or rides in a car containing concealed illegal objects necessarily knows the presence or nature of those objects: R. v. Amado, 1996 CanLII 2961 (BC SC), [1996] B.C.J. No. 1943 (S.C.) at para. 33. In unlawful possession cases, where the prohibited item is concealed or not readily visible in a vehicle driven by the accused, the courts have generally required more than simply evidence of the proximity of the accused and the item: R. v. Green and Rawlins (1993), 5 M.V.R. (3d) 280 (Ont. C.A.) at 281; R. v. Bauer, 2003 BCCA 138, [2003] B.C.J. No. 505 (C.A.) at para. 18; R. v. Anderson, supra at para. 26; R. v. Iturriaga, 1993 CanLII 2517 (BC CA), [1993] B.C.J. No. 2901 (C.A.) at para. 9.
[78] R. v. Green and Rawlins, [1993] O.J. No. 1346 (C.A.):
Dealing first with the charge under s.91(3) of the Code against Dorman Green, it is clear that it is an essential element of the offence that the accused be an occupant of a vehicle in which he knows there is a restricted weapon. There was no direct evidence that the appellant Green knew there was a restricted weapon in the vehicle in which he was found. There was no evidence of any facts from which it could be reasonably inferred that he had such knowledge. The fact that the gun was loaded and cocked and was easily accessible to the occupants of the car is not relevant to a finding of knowledge. The undisputed evidence was that the weapon was not readily visible. In any event insofar as the appellant Green was concerned, he gave evidence that he did not have knowledge of the weapon. He was not cross-examined by counsel for the Crown on this evidence nor did the trial judge give any reason for disbelieving the evidence or, in fact, find as a fact that he disbelieved it.
With respect to the charge against Green under s.91(3) and the charges against Rawlins under s.91(3) and s.100(12) of the Code, the evidence was wholly circumstantial and we are not satisfied that the only reasonable inference to be drawn from the proven facts is the guilt of the accused on any of these charges. (emphasis added)
[79] In R. v. Mullings, [2011] O.J. 1833 (Sup. Ct.) the court stated at paras. 25 and 41:
In other words, if there are other rational conclusions to be drawn from the evidence, the Crown will have failed to prove its case (R. v. Bullock [2000] O.J. No. 798; R. v. Anderson, 1995 CanLII 1338 (BC CA), [1995] B.C.J. No. 2655 (B.C.C.A.); R. v. Chualna, C.C.C. (3d) 192 (B.C.C.A.); R. v. Green; R. v. Rawlins, [1993] O.J. No. 1346 (O.C.A.).
In circumstances involving unlawful possession in a motor vehicle of a concealed item, that is not readily apparent or visible to the driver of that automobile, something more than the driver’s close proximity to the concealed item is required to establish proof of knowledge and control of the hidden item. (R. v. McIntosh, supra, para. 32; R. v. Green and Rawlins, 5 M.V.R. (3d) 280 (O.C.A.); R. v. Bauer, 2003 BCCA 138, [2003] B.C.J. No. 505 (B.C.C.A.) at para. 18; R. v. Anderson, supra, at para. 26; R. v. Inturriala, 1993 CanLII 2517 (BC CA), [1993] B.C.J. No. 2901 (B.C.C.A.) at para. 9).
Possession of the Firearm – Mr. Blasevic
The Evidence of Ms. Calce
[80] The Defence submits that the firearm could belong to Ms. Calce. The Defence submits that Ms. Calce’s evidence the firearm was not hers is not credible and, as a result, there is a reasonable doubt that Mr. Blasevic knew the firearm was in the black zippered bag.
[81] I fully accept that a Vetrovec warning clearly applies to the evidence of Ms. Calce given her involvement with some of these men and the possible reasons for her exculpatory evidence regarding the firearm.
[82] The trier of fact must look for some independent, confirmatory evidence which results in the trier’s confidence that the witness’ evidence is truthful. This was summarized by Justice Doherty in R. v. Roks, 2011 ONCA 526 at paras. 63 -66:
Among the essential elements of a Vetrovec caution is an instruction about the essential characteristics of confirmatory evidence. Jurors are to be told that, in determining the veracity of the suspect evidence, they should look for evidence from another source tending to show that the untrustworthy witness is telling the truth about the guilt of the accused: Khela, at para. 37; R. v. Kehler, 2004 SCC 11, [2004] 1 S.C.R. 328, at paras. 17-19; R. v. Sauvé, (2004), 2004 CanLII 9054 (ON CA), 182 C.C.C. (3d) 321 (Ont. C.A.), at para. 82, leave to appeal refused, [2005] 1 S.C.R. xv. The trier of fact is to look for confirmation from some other source (the independence requirement) that the suspect witness is telling the truth in some part of his story that goes to show that the accused committed the offence charged (the implicative quality or materiality requirement): Kehler, at para. 19; R. v. Vetrovec, 1982 CanLII 20 (SCC), [1982] 1 S.C.R. 811, at p. 829.
The independence requirement insists that to be confirmatory, evidence must not be “tainted” by connection to the Vetrovec witness: Khela, at para. 39.
To satisfy the materiality requirement, confirmatory evidence need not implicate the accused: Khela, at paras. 40-41; Kehler, at para. 16. The materiality requirement is met where the confirmatory evidence, in the context of the case as a whole, gives comfort to the trier of fact that the Vetrovec witness can be trusted in his or her assertion that the accused is the person who committed the offence: Khela, at para. 42; Vetrovec, at p. 833. Where the only issue in dispute is whether the accused committed the offence, to be confirmatory, evidence must comfort the trier of fact that the Vetrovec witness is telling the truth in that regard before convicting on the basis of the Vetrovec witness’ evidence: Khela, at para. 43.
It is worth reminder that a trier of fact is entitled to convict on the evidence of a Vetrovec witness in the absence of confirmatory evidence where the trier of fact, cautioned about the danger of doing so, is satisfied that the witness is telling the truth: Khela, at para. 37; Kehler, at para. 22; Sauvé, at para. 82.
[83] In this case, much of Ms. Calce’s evidence was confirmed by the written documents from Hertz Canada. Further, while she did not give Hertz Canada her current address, the address she provided Hertz Canada was her prior address and which then was currently on her driver’s license. With respect to the wrong credit card number, Ms. Calce was at Hertz Canada office personally to rent to the Jeep - she gave the attendant a considerable amount of cash as a deposit. It is hard to believe that the attendant would not have actually taken the credit card and “swiped” or transcribed the numbers – perhaps mistakenly on the form. Had this been a transaction over the phone, the incorrect credit card number might have been much more suspicious. However, it appears to be an error than anything else. These two factors become much less significant than suggested by the Defence when carefully considered.
[84] The Defence also makes much of the evidence that Ms. Calce denied she had left any personal items when she lent the Jeep to Mr. Blasevic. However, the evidence is clear that Ms. Calce admitted, in-chief, that the baby “stuff” in the Jeep was hers. As a result, the erroneous evidence relates to a pair of shoes and some clothes on the back seat – remembering that the back seat had been folded down to form a large cargo area. This does not seem to be a significant contradiction.
[85] Common sense suggests that leaving a loaded firearm in a vehicle loaned to another person for several days is not a likely scenario given the value in a firearm, its potential discovery by the person borrowing the vehicle or someone else, and the very significant consequences if the loaded firearm is discovered by the authorities.
[86] Ms. Calce gave straightforward evidence. There were no significant errors in her evidence. She was not shaken in cross examination. Further, while she was cross examined on various matters, she was really not challenged about the fact the firearm was not hers or that she knew anything about the firearm when she loaned the vehicle to Mr. Blasevic.
[87] In conclusion, despite the caution accepting the veracity of Ms. Calce’s evidence, I accept that the firearm was not hers and not there when she loaned the Jeep to Mr. Blasevic.
Control
[88] The Defence does not suggest that Mr. Blasevic, the driver of the Jeep, didn’t have control of the firearm located in the driver’s door pocket.
Knowledge
[89] The Defence’s submits that there is reasonable doubt Mr. Blasevic had knowledge the firearm was in the zippered case in the driver’s door pocket.
[90] The Defence raised the possibility that the firearm belonged to Mr. Direkoglu because Ms. Calce testified that she had seen a similar black case that contained a writing pad (this case, when seized by the police, also had paper in it in addition to the firearm). The difficulty with this submission is that the evidence only establishes that Mr. Direkoglu had a similar case. The case is not distinctive. It is black and has a zipper around it. Even if the case and/or the firearm belong to Mr. Direkoglu, ownership of the case or the firearm is not relevant. Possession is. Besides, there is no evidence this was Mr. Direkoglu’s case or that he had any connection to the firearm.
[91] Further, Mr. Blasevic was the driver. It is hard to understand why Mr. Direkoglu, if it was his firearm, would put his firearm in the driver's storage pocket just as the men were about to undertake this offence.
[92] Ms. Calce’s evidence regarding a similar case, in my view, is not sufficient to raise a reasonable doubt with respect to the possession of the firearm.
[93] The central issue is whether an inference can be drawn from the evidence that Mr. Blasevic had knowledge of the firearm in the zippered case and whether it is the only reasonable inference to be drawn.
[94] The evidence in this case includes:
i. For the reasons set out above, Mr. Blasevic was a member of the conspiracy to commit the indictable offence of unlawful confinement. The evidence clearly points to the imminent commission of this offence on July 30, 2010 but for the intervention of the constables;
ii. the Jeep was parked in a fairly secluded area;
iii. Mr. Blasevic was the admitted driver of the rental Jeep. Mr. Blasevic had possession of the Jeep since the previous day and had also used the Jeep several days before that;
iv. the back of the Jeep had the rear seats folded down to form a large cargo area. Visible were the homemade zip tie handcuffs and black gloves to be used in an unlawful confinement. While there is no evidence that these items belonged to Mr. Blasevic, it defies logic that he would not have seen or known these items were in the Jeep cargo area when he drove to the strip mall. These items were on top of the cargo area in plain view for Constable Salvatore to see;
v. the firearm did not belong to the renter, Ms. Calce;
vi. the Jeep’s glove box contained a camouflage mask, which, for the reasons set out above, Mr. Blasevic knew was in the glove compartment;
vii. the zippered case was immediately next to the driver and within easy reach;
viii. a firearm is a very useful weapon for the commission of an unlawful confinement and consistent with potential violence expected in the carrying out of the offence; and
ix. Mr. Blasevic already had a knife, repellent spray and another set of handcuffs on his person – also useful items for the commission of the unlawful confinement all within easy reach.
[95] The Defence submits that Mr. Blasevic’s demeanour (nervousness when the police arrived, his moving away from the vehicles and his statement that he was “going away for a long time”) should not be considered as evidence against Mr. Blasevic.
[96] I accept that demeanour evidence going to a person’s mental state is highly suspect. See White, supra, at paras. 75-76. In this case the nervousness might be attributed to the public’s usual nervousness when dealing with police officers.
[97] The attempt to distance walk away from the vehicles and his statement that he was going away for a long time have very limited or no probative value as post offence conduct with respect to knowledge of the firearm. The Supreme Court in R. v. White, 2011 SCC 13 has recently reaffirmed that post offence conduct is circumstantial evidence, the weight to be given dependent on the evidence as a whole. The reason I say very limited or no probative value is because Mr. Blasevic’s actions or words can equally be explained by his concern regarding the obvious and readily available evidence of the conspiracy to commit the indictable offence of unlawful confinement.
[98] The Defence points to each piece of evidence and suggests either a lack of proven connection to Mr. Blasevic or a possible innocent explanation for the item(s). For example, the Defence suggests that a roll of duct tape or the bag of zip ties have many innocent purposes. That is true, but in the circumstances of this case, these items suggest a criminal purpose.
[99] The totality of the evidence must be considered. When all of the evidence is considered as a whole, there is no reasonable doubt Mr. Blasevic had knowledge of the firearm in the driver’s door pocket.
[100] With respect to Mr. Blasevic, there will be a finding of guilty on counts #1 and #2.
Possession of the Firearm – Mr. Baba
[101] The difficulty with counts #1 and #2 with respect to Mr. Baba is that there is no evidence Mr. Baba either knew of the existence of the firearm or had control of it.
[102] One might infer from all of the circumstances, that a firearm would be a useful item to have when committing an unlawful confinement and given that the offence was imminent, someone would likely have brought a firearm and Mr. Baba would have known that. However, there is no tangible evidence Mr. Baba knew there was a firearm in the Jeep or that Mr. Baba knew Mr. Blasevic had brought a firearm.
[103] Joint possession, as argued by the Crown, is simply not applicable. For there to be joint possession, the Crown would nevertheless have had to prove that Mr. Baba knew Mr. Blasevic had brought a firearm for use in the commission of the offence. There is no such evidence in this case.
[104] Mr. Baba is acquitted on counts #1 and #2.
Breach of the Prohibition Order
[105] The Defence has conceded that if, Mr. Blasevic was found to have possession of the firearm, Mr. Blasevic was in breach of a Prohibition Order under the Criminal Code.
[106] As a result, there will be a finding of guilt on this count with respect to Mr. Blasevic.
[107] With respect to Mr. Baba, having acquitted Mr. Baba on the possession of firearm charges, there must be an acquittal on this count as well.
Conclusion
[108] Mr. Blasevic is found guilty on all counts. Count #2 (possessing a firearm without a license) is stayed pursuant to Kienapple.
[109] Mr. Baba is found guilty on count #3 and acquitted on all other counts.
Ricchetti, J.
Released: January 9, 2012
COURT FILE NO.: Crim J(P) 918/11
DATE: 20120109
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and –
MICHAEL BLASEVIC and SARGON BABA
Defendants
REASONS FOR JUDGMENT
Ricchetti, J.
Released: January 9, 2012