CITATION: R. v. Banovac, 2016 ONSC 3579

COURT FILE NO.: CR-15-90000241

DATE: 20160519

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

PAVAL BANOVAC

Accused

Sam Siew, for the Crown

Richard Elbirt, for the Accused

HEARD: May 16, 17, 18 & 19, 2016

B.A. ALLEN J.

reasons for decision

THE CHARGE AND AGREED FACTS

[1] Paval Banovac was charged on January 2, 2014 with possession of heroin for the purpose of trafficking. The trial proceeded by judge-alone. At the start of the trial Mr. Banovac pleaded guilty to simple possession of heroin. The issue then is whether Mr. Banovac possessed the heroin for the purpose of trafficking.

[2] Mr. Banovac was arrested in a drug trafficking investigation by the Toronto Police drug squad that began in late 2013. The drug squad acted based on evidence they received from a confidential source. Source information directed the police to investigate a drug dealer, Tien Dung Dinh, who was alleged to be trafficking drugs from his residence at 19 Lippincott Street East in Toronto.

[3] On January 2, 2014 a police surveillance team observed a red Toyota SUV pull up and park near Mr. Dinh’s residence. The police observed Mr. Dinh leave his residence and walk to the SUV. He entered the rear passenger side of the vehicle, and about two minutes later, he exited the vehicle and returned to his residence.

[4] Based on those observations, the police decided to arrest the occupants of the vehicle. Mr. Banovac was in the front passenger seat. The driver of the SUV was Selina Colluci. Mr. Banovac was immediately arrested for possession of a controlled substance contrary to s. 4(1) of the Controlled Drugs and Substances Act (“the CDSA”).

[5] During a search incident to the arrest the police found a clear plastic baggy in Mr. Banovac’s jacket pocket, which contained four individually-wrapped, fingertip-size chunks of a light-coloured power substance. This amounted to 21.91 grams of heroin. A search of the vehicle disclosed an additional small black plastic baggy containing heroin which amounted to 0.15 grams. The substances were analyzed by a Health Canada laboratory and confirmed to be heroin.

[6] Ms. Colluci was arrested. No drugs were found in her possession. The Crown did not proceed on the charges against her.

THE LAW ON TRAFFICKING

[7] Section 2(1) of the CDSA defines “trafficking” as: selling, administering, giving, transferring, transporting, sending or delivering the substance, selling an authorization to obtain the substance, or offering to do anything mentioned above in relation to a controlled substance or something being held out as a controlled substance. The definition clearly does not include a requirement for the exchange of money. A mere transfer of a controlled substance from one person to another person can amount to trafficking. This means even a gift of drugs can be sufficient proof of trafficking.

[8] This is settled law. A person need only give or deliver a drug to another person and the offence of trafficking is made out: [R. v. Larson (1972), 6 C.C.C. (2d) 145 (B.C.C.A.)]. Making a profit is not an element of the offence: [R. v. Drysdelle (1978), 41 C.C.C. (2d) 238 (N.B.S.C. App. Div.)]. Even a person giving a controlled substance to someone to hold for them for safekeeping amounts to trafficking: [R. v. Lauze (1980), 17 C.R. (3d) 90 (Que. C.A.)].

[9] The law also addresses Mr. Banovac’s argument discussed below that he acted as a mere agent of the purchaser in giving drugs to his girlfriend. His girlfriend had given him some money on January 2, 2014 to purchase heroin. Mr. Banovac’s view is that he was simply assisting his girlfriend in providing heroin to her. It has been held that assistance by an accused is not trafficking if that assistance does not involve committing any of the statutorily forbidden acts: [R. v. Woods (2007), 2007 ABCA 65, 218 C.C.C. (3d) 386 (Alta. C.A.)].

EVIDENCE AT TRIAL

Providing Heroin to Girlfriend

The Evidence

[10] Mr. Banovac admitted that he and his girlfriend, Jennifer Mitchell, had spent the entire day of January 2, 2014 at his residence smoking heroin together. He testified that in the evening he received a call from Ms. Colluci who asked him to go with her to Mr. Dinh’s place to buy some heroin. Mr. Banovac stated that Ms. Mitchell gave him some money for the heroin. He said he would not buy heroin and just give it to his girlfriend for free because of the steep cost of the drug.

[11] Mr. Banovac testified he called Mr. Dinh and set up the time and place to buy the heroin. As noted above, Ms. Colluci drove and Mr. Banovac was in the front passenger seat. Mr. Dinh entered the SUV and sat on the rear passenger seat. He passed Mr. Banovac a plastic baggy containing 21.91 grams of heroin which was divided into four 8-ball amounts, which refers to four portions of ⅛ of an ounce or 3.5 grams each.

[12] Mr. Banovac admitted he was going to deliver heroin to Ms. Mitchell since she had given him money for some heroin. This is evidence of a clear intent to deliver or provide Ms. Mitchell with drugs. This action fits the definition of trafficking under s. 2(1) of the CDSA.

[13] Mr. Banovac is not saved from culpability on his argument that he was merely assisting to provide Ms. Mitchell drugs as an agent for the purchaser. As the court in R. v. Woods held, an accused trafficks drugs if he commits any of the prohibited acts in assisting another person. Mr. Banovac offered to deliver drugs to Ms. Mitchell. That is a prohibited act under the CDSA.

Conclusion

[14] I find the Crown has proven beyond a reasonable doubt that Mr. Banovac possessed the heroin for the purpose of trafficking some of it to Ms. Mitchell. None of the evidence raises a reasonable doubt about this.

Possession for the Purpose of Trafficking for Profit as an Aggravating Factor

The Evidence

[15] Courts have tended to make distinctions between levels of gravity of drug offences. Trafficking in drugs for a commercial purpose has attracted greater censure and is regarded as an aggravating factor on sentencing. Lower end trafficking, for instance, to support an addiction attracts less punitive measures because the offence is seen as being committed to support a habit which is regarded as a type of disease: [R v Bui, at para. 2, (ON CA) and R v. Woolcock, [2002] O.J. No. 4927, at para. 5, (Ont. C.A.)]. Aggravating factors on sentencing must be proven beyond a reasonable doubt: [R. v. Larche, 2006 SCC 56, [2006] 2 S.C.R. 762, at paras. 43 - 44, (S.C.C.)].

[16] The Crown argues that the evidence proves beyond a reasonable doubt that Mr. Banovac purchased heroin on January 2, 2014 for the purpose of trafficking it for profit to support his heroin addiction.

[17] The Crown relies on the evidence of Det. Duffus who was called as an expert on the pricing, packaging and paraphernalia related to the use, sale and modus operandi of heroin trafficking. The defence did not challenge Det. Duffus’ expertise.

[18] By way of his background, Det. Duffus has seven-and-a-half years’ experience working with the Toronto Police drug squad. He has testified as an expert witness in about seven previous trials at different levels of court proceedings. He has had involvement with many drug

enforcements and with debriefings of drug users, addicts and traffickers of a variety of drugs such as cocaine, ketamine and heroin.

[19] Det. Duffus has acted as an undercover officer in the purchase of drugs, as an affiant on about 20 search warrants involving heroin and has acted in the execution of search warrants related to drugs. He was involved in excess of 50 instances of arrests involving traffickers and has been involved in approximately 100 drug investigations involving heroin.

[20] Det. Duffus indicated he kept up-to-date on the drug culture through attending annual symposiums, visiting websites serving the drug subculture, and through receiving regular email updates on drug trends. He testified his practical expertise comes from his communications with users, traffickers, confidential informants and addicts about the use, purchasing practices, street lingo, street levels of purity, drug prices, code names for drugs, and trends in amounts being purchased by traffickers and users. He has experience in dealing with informants and users addicted to heroin and estimated that about 50 percent of those he has dealt with were addicted to heroin.

[21] Det. Duffus testified that in January 2014 the average amount a user would buy would be from .02 grams to 1/2 a gram up to a gram at any given time. He testified that the wholesale value of the total 22.06 grams of heroin seized would be about $3,400 to $4,500, and if sold at an individual gram level on the street the heroin would be valued at $5,294 to $7,721. A cheaper price is charged when drugs are purchased wholesale than when bought at street level because the more purchased the lower the price. He stated that most users do not have the money to buy at wholesale prices.

[22] Det. Duffus testified that in his experience, to avoid detection or being arrested or robbed, the quantity most users generally buy is from .02 gram to 1/2 gram up to one gram. Det. Duffus further explained that street level dealers are on the lowest rung of the trafficking hierarchy and generally sell heroin at the .02 gram to the one gram level. Det. Duffus testified heroin was valued at the relevant time from $150 to $200 per gram.

[23] According to Det. Duffus, 22.06 grams of heroin amount to 1103 hits, one hit being about .02 grams. It was Det. Duffus’ evidence that a regular user does a hit of .02 grams about two or three times per day. A heavy user does a hit at a maximum of .04 grams about three times per day. A user that uses two times a day would generally be an addict.

[24] From his experience Det. Duffus observed that heroin addicts are unable to function normally because of the lethargy and low energy caused by the drug. Inability to access the drugs when the need arises causes disabling physical withdrawal symptoms making it difficult to function.

[25] It was Det. Duffus’ opinion that neither 22.06 grams of heroin nor 21.91 grams of heroin are likely to be only for personal use. A simple addicted user would want to avoid detection and robbery and would not want to purchase that amount at one time. But a trafficker would purchase heroin at that quantity with the intention of selling it.

[26] Det. Duffus said it was common to see users who were also traffickers. They buy drugs at a cheaper price and then sell them at a higher price to fund their drug habit. His opinion was that the four 3.5 gram packets of drugs found on Mr. Banovac’s person are consistent with the amounts traffickers have for easy distribution.

[27] It was Det. Duffus’ conclusory opinion that Mr. Banovac was a street level user who on January 2, 2014 was purchasing heroin from his ‘backend’ source for his own personal use and for the purpose of trafficking the drugs to support his habit.

[28] Mr. Banovac admits he was badly addicted to heroin during the period before he was arrested. I find Mr. Banovac’s evidence tends to support the view that he trafficked heroin to make a profit to support his heroin addiction.

[29] In Mr. Banovac’s attempt to convince the court that the heroin he bought was only for his own personal use, and not for trafficking, Mr. Banovac testified he used one gram per day. Det. Duffus testified in his experience with heroin the most he saw used was 1/2 a gram per day. Mr. Banovac’s assertion that he used one gram per day is therefore double the amount the officer said he ever saw a user consume.

[30] Mr. Banovac testified that on January 2, 2014 he gave Mr. Dinh $700 and Ms. Colluci gave Mr Dinh $700, for a total of $1,400, for the 21.91 grams of heroin. Mr. Banovac conceded the drugs were all handed to him in the packaging previously described. He said he put the entire four packets in his pocket and did not get the chance to give Ms. Colluci her share of two packets before the police arrived. Mr. Banovac testified he purchased one-half of the 21.91 grams of heroin for his personal use. His evidence is that he bought drugs from Mr. Dinh twice a week for two months. Contrary to Officer Duffus’ evidence that heroin went for $150 to $200 per gram, Mr. Banovac asserted heroin sold for $100 per gram. Mr. Banovac testified he had also bought similar amounts of heroin at a similar but slightly higher price about two times per week from a previous dealer for two years.

[31] Mr. Banovac testified at the time he was arrested he was using three points of heroin at a time − according to Officer Duffus a point being .02 grams – six times per day for two months, amounting to about one gram per day. Mr. Banovac agreed that at that rate in two months he purchased from Mr. Dinh some $11,000 worth of heroin. He agreed he also spent similar amounts for heroin during the two years he purchased from his previous dealer.

[32] The Crown points out the following. On his own evidence, Mr. Banovac used one gram per day, seven days per week for the two months. He spent $700 two times per week which amounts to $1,400 per week. If he consumed one gram per day at $100 per gram he would consume $700 worth of heroin per week. That would mean there was an extra seven grams per week that he did not consume. The Crown asserts that Mr. Banovac sold the excess heroin to support his drug addiction.

[33] The Crown’s view that Mr. Banovac trafficked heroin to support his habit is supported by the fact that it is not reasonable that Mr. Banovac could satisfy his habit without selling heroin given his meagre financial resources at the time.

[34] Mr. Banovac worked full-time with his father as a painter before his heroin addiction. Mr. Banovac conceded Det. Duffus’ evidence that heroin use caused him to be lethargic and low energy and not capable of working on a full-time basis. He said he worked part-time doing odd jobs earning about $1,000 per month during the two years of his addiction. This was considerably less than his full-time earnings.

[35] Mr. Banovac testified his monthly expenses were $500 for rent, $30 for his cellphone and $100 for groceries. He testified that over the two years of his addiction he also lived off of $40,000 in savings. He admitted he became desperate for money to feed his habit and sold many of his personal effects.

[36] As the Crown pointed out, and I accept, in the two months he purchased heroin from Mr. Dinh, on his own figures, he spent about $11,000 on heroin and a total of some $6,200 on living expenses. Over the two years of his addiction he would have spent some $130,000. Of course, using Det. Duffus’ figures the cost to Mr. Banovac would be much higher.

Conclusion

[37] I accept that the Crown has proven beyond a reasonable doubt that Mr. Banovac had possession of the heroin for the purpose of trafficking the drugs for a profit to support his drug addiction.

[38] I accept Det. Duffus’ expert evidence. He has been a police officer for 25 years. He has over seven years’ experience acting in various capacities in relation to the drug subculture. He testified in a clear consistent matter about the regular amounts of heroin purchased, the pricing and general consumption habits of drug users. I find Mr. Banovac’s evidence was directed to inflating his use of heroin and minimizing the price per gram to avoid a finding that he purchased the drugs on January 2, 2014 for the purpose of trafficking.

[39] Even on Mr. Banovac’s deflated prices, his financial resources were not sufficient to support the amounts of drugs he says he consumed during the two months of buying from Mr. Dinh and during the two years of his addiction. He would have quickly dissipated his $40,000 savings as well as his minimal earnings if he was spending $1,400 per week on heroin. Selling his personal belongings could only go so far.

[40] Mr. Banovac admitted that at the rate he consumed heroin he was seriously addicted and had an unrelenting need to regularly feed his habit. He admitted that by January 2, 2014 he was using heroin not for the “high” but simply to maintain normal functioning.

[41] I find a reasonable inference can be drawn from the facts that Mr. Banovac purchased the heroin from Mr. Dinh on January 2, 2014 for his own personal use and for the purpose of trafficking it for profit to feed his drug addiction. Nothing in the evidence raises a reasonable doubt in my mind about this.

VERDICT

[42] For the foregoing reasons, I am satisfied the Crown has proven Paval Banovac’s guilt beyond a reasonable doubt on count 1 on the indictment.

[43] I therefore find Paval Banovac guilty on count 1 on the indictment and a conviction will be entered accordingly.

B.A. ALLEN J.

Released: May 19, 2016

CITATION: R. v. Banovac, 2016 ONSC 3579

COURT FILE NO.: CR-15-90000241

DATE: 20160519

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

PAVAL BANOVAC

Accused

REASONS FOR decision

B.A. ALLEN J.

Released: May 19, 2016