Court File and Parties

COURT FILE NO.: 14-G2165 DATE: 2017/03/02

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Her Majesty The Queen, Respondent – and – Valdrin Basha, Anton Dokaj, Applicants

COUNSEL: C. Reccord and J. Corbeil, for the Federal Prosecution Service R. E. Conway, for V. Basha J. H. Hale, for A. Dokaj

HEARD: February 24, 2017

Reasons on Motion of A. Dokaj for Directed Verdict of Acquittal

KANE J.

[1] The applicants are jointly charged with:

(a) two counts of possession of crack cocaine and cocaine for the purposes of trafficking, contrary to section 5(2) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19;

(b) eight counts of firearm offences relating to a sawed off 410 shotgun; and

(c) possession of proceeds of crime, namely money less than $5,000, contrary to section 355(b) of the Criminal Code, R.S.C 1985, c.C46 (the “Code”).

[2] There are three additional counts against Mr. Basha, namely one count of possession of cocaine, one count of contravention of s. 109(1)(a) of the Code by his alleged possession of the shot gun and one count of breaching a term of probation to keep the peace, contrary to s. 733.1(1) of the Code.

[3] Upon the Crown closing its case, Mr. Dokaj moved for a directed verdict of acquittal of all charges against himself.

[4] Possession is an essential element in the two drug charges and the eight joint charges related to a firearm. Possession pursuant to S. 4(3) of the Code can be:

(a) Personal possession, pursuant to s. 4(3)(a);

(b) Constructive possession, pursuant to s. 4(3)(a)(i) and s. 4(3)(a)(ii); and

(c) Joint possession, as defined in section 4(3)(b) of the Code.

[5] The Crown submits that Mr. Dokaj was in constructive possession of the drugs and the fire in this case.

[6] Mr. Dokaj submits the Crown has failed to introduce evidence to establish his possession of the drugs or the firearm. For the purpose of this motion only, Mr. Dokaj concedes and does not place in issue that there is some evidence upon which a trier of fact might conclude that the Crown has met the other essential elements as to the drug and firearm charges.

[7] As to the charge of knowingly possessing money obtained by the commission of an indictable offense, Mr. Dokaj submits that the Crown has failed to present evidence that the money in his pocket at the time of his arrest was derived from the commission of a crime and that he knew that to be the case. Mr. Dokaj on this motion accepts that the Crown has established that he had $250 in his pocket at the time of his arrest.

Events Prior To Charges

[8] The Ottawa Police Service in 2014 conducted an investigation and surveillance of possible criminal activity involving several individuals other than the Messrs. Bash and Dokaj. As part of that investigation, police became aware of and conducted surveillance of Mr. Basha, his Chrysler Concord automobile (the “Concord”), an apartment building and parking lot at 790 Springland (“790”) and apartment 232 therein (“Unit 232”) (collectively, the “Targets”).

[9] Several officers of the OPS testified as to their surveillance observations regarding the Targets and related matters on May 13, June 6, 12, 13, 17, 18, 19, 20, 24, 25, 26, 27 and July 3, 4, 5, 9, 10 and 15, 2014.

[10] During this surveillance, Mr. Basha is observed attending at and leaving from 790 on numerous occasions in his Concord. Mr. Dokaj is not identified during the above surveillance prior to July 15, 2014.

July 15, 2014 Warrant Searches

[11] The warrant authorized a search of Unit 232, the residence of the parent’s home of Mr. Basha at 304 Southcrest Private, a black Jeep and the Concord. The warrant was not directed at Mr. Dokaj.

[12] On July 15, 2014, the OPS executed a search of Unit 232 and 304 Southcrest Private. At the same time, the OPS stopped and arrested Mr. Basha who was driving the Concord and Mr. Dokaj who was a passenger in that vehicle. The two accused were taken into custody but were not charged.

[13] Unit 232 is a 2 bedroom apartment. On July 15, 2014, Unit 232 was leased to Mr. M. Leblanc and Mr. A. Luni pursuant to a written lease.

[14] Upon conducting the July 15, 2014 warrant search of Unit 232, the OPS found and seized cocaine, crack cocaine, a firearm, ammunition for the firearm, numerous cellular telephones as well as product and equipment identified by Officer Emery as tools and products to mix in cutting agents and compact the blended drug product.

[15] A woman was present inside Unit 232 upon police executing their warrant search on Unit 232. She initially falsely identified who she was, her date of birth and falsely stated she lived at 668 Clearwater in London ON. In response to whether she lived in Unit 232, she stated she was there as a visitor, visiting someone named “Johnny” but could not provide his telephone number. Her Kosovo passport was found in the second bedroom indicating her correct name and date of birth. She was arrested but not charged. She was deported from Canada by Canada Immigration between July 15 and September 4, 2014 when the OPS attempted to arrest and charge her (the “Female”).

[16] During the warrant search, the OPS seized the following items in the locations as indicated in Unit 232:

(1) Bedroom 1:

• a City of Ottawa gymnasium identification and pass card in the name of and with the photo of Mr. Dokaj which was beside the lamp on the bedside table;
• the closet in this bedroom contained male and female clothing;
• the bedroom closet contained a small safe located on the floor. The key to the safe was in an open plastic container on the floor beside the safe. Opening the safe released a strong smell of either;
• two balls of cocaine totalling 253 grams were inside this small safe in this bedroom closet. Two other bags in the safe each contained 0.2 grams of cocaine;
• a metal can inside this bedroom closet contained four plastic knotted bags. Three bags contained cocaine totalling 16.4 grams. The fourth bag contained 17.5 grams of crack cocaine;
• a sawed off shotgun and 18 of its ammunition shells were in a plastic bag on the floor inside this bedroom closet. The gun’s serial number had been removed;
• a woman’s purse inside this closet contained the Female’s temporary driver license;
• a 2nd purse containing a cheque book in the name of the Female, her Kosovo passport with her true name and date of birth and immigration deportation proceeding documentation regarding the Female were under the bed;
• four cellular telephones;
• the Female’s above identification provided contradictory information as to her date of birth and residence, including her statement to police and a temporary driver’s licence that her address was 668 Clearwater, London ON.

(2) Bedroom 2:

• the keys to a black Jeep Liberty, license plate BKLP 882, registered to a Eleftheria Petroulias, (the “Jeep”) were on top of the dresser in this bedroom. The Jeep that day was parked at 790. Mr. Basha earlier on July 15, 2014 was observed unlocking, entering and then re-locking the Jeep;
• Mr. Dokaj’s driver’s license was in the Jeep’s glove compartment. It listed his address as 107 Grand Avenue, Apt. 512, London ON.;
• this bedroom closet contained male clothing;
• the bedroom closet contained a small safe. The key to the safe was one of several keys on a key ring. One key on that ring operated and was in the ignition of the Concord which was owned and was being driven by Mr. Basha at the time of his arrest on July 15, 2014. Other keys on that ring in the ignition of the Concord opened the doors to the 790 apartment building and the front door of Unit 232;
• a plastic knotted bag on top of the safe contained cocaine;
• there was men’s clothing on top of the closet shelf. Under that clothing was a second key to the safe in that closet;
• a knotted plastic bag inside the safe contained a hard knotted substance, several elastic bands and pieces of torn paper;
• two digital scales were on the closet floor beside this safe, one with white powder substance on the weighing portion of that scale;
• a small metal box was, according to Officer Emery, a device to compress drugs including cocaine was found on the closet floor near the safe;
• the top drawer in the tall set of drawers or dresser contained a hand held taser and documentation addressed to or referring to Mr. Basha including: a) an April 11, 2014 MOT notice of change of address to 328 Garden Glen Private; b) a Ottawa Hospital medical emergency report regarding Mr. Basha dated May 20, 2014 listing his address at his parents’ home at 304 Southcrest Private; c) a bank personal assessment of Mr. Basha listing his address as 328 Garden Glen Private and dated in March 2014; and d) a probation officer’s business card with Mr. Basha’ name, the date of July 30, 2014 and the time of 11:30 written by hand on that card;
• three cellular telephones.

(3) Hallway Closet Inside Unit 232:

• one 9” by 15” welded steel frame with no top or bottom;
• multiple pieces of wood which are cut to the width of and fit very snuggly inside the above metal frame;
• elaborate and simple face masks;
• containers of acetone, incense and a sprayer bottle which Officer Emery testified are tools used to inject cutting agents into cocaine in order to increase quantities and revenue;
• 6 large vice grips which accordingly to Officer Emery can be used to apply and maintain pressure upon wood and/or metal plates to compress materials inside the above frame. Officer Emery testified these tools are sufficient to constitute and operate a drug press; and
• a food weight scale with white powder residue on the scale tray.

(4) Kitchen:

• another operating key of the Jeep was on the kitchen counter;
• the refrigerator contained four large plastic bags containing a white powdery substance which Officer Emery believed could be used as a buffing agent to be cut into cocaine; and
• a June 20, 2014 Rogers bill, a February 19, 2014 Hydro Ottawa bill and a June 23, 2014 letter each addressed to Mr. Leblanc; as well as a January notice of rent increase addressed to Mr. Leblanc and Mr. Luni regarding Unit 232.

(5) Dining Room:

• two cellular phones, an IPad and lap top computer were on the dining room table.

(6) Living Room:

• two cellular telephones on the living room table.

[17] The above evidence, if believed, is capable of supporting a reasonable inference that:

(a) a drug trafficking operation was being conducted in Unit 232 as of July 15, 2014; and

(b) the large quantities of cocaine, the consumer level value of the same as testified to by Detective Emery as an expert witness, the buffing agents, the sawed off shot gun, the scales, breathing masks and equipment press found in Unit 232 could reasonably support an inference that the drugs in Unit 232 were intended to be cut, pressed, packaged and/or marketed for sale.

[18] Police found no drugs on July 15, 2014 inside the Jeep or at the home of Mr. Basha’s parents at 304 Southcrest.

[19] Upon arresting Mr. Basha on July 15, police searched his wallet which contained a Government of Canada cheque payable to him at 304 Southcrest Private and dated July 4, 2014. Police seized documentation from 304 Southcrest addressed to Mr. Basha at that address.

[20] Upon searching the black Jeep, the OPS found the driver’s license of Mr. Dokaj with his address of apartment 512, 107 Grand Ave. London ON but no drugs.

Knowledge Of The Drugs

[21] Knowledge of the drugs does not require direct evidence of knowledge. Knowledge may be inferred from surrounding circumstances: R. v. Aiello, (1978), 38 C.C.C. (2d) (Ont. C.A.) at 488; R. v. Anderson, 1995 BCCA 1338, [1995] B.C.J. No. 2655 (B.C. C.A.) at para 15-16 and R. v. McIntosh, [2003] O.T.C. 246, para 43.

Constructive Possession

[22] The Crown relies upon constructive joint possession as against Mr. Dokaj.

[23] Constructive possession of the drugs and firearm in Unit 232 requires knowledge which extends beyond mere quiescent knowledge and discloses some measure of control over the item possessed: R. v. Pham, (2005) 204 O.A.C. 299, para 15.

[24] As to constructive possession, the Supreme Court in R. v. Morelli, 2010 SCC 8, stated:

17 Constructive possession is established where the accused did not have physical custody of the object in question, but did have it "in the actual possession or custody of another person" or "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" (Criminal Code, s. 4(3)(a)). Constructive possession is thus complete where the accused: (1) has knowledge of the character of the object, (2) knowingly puts or keeps the object in a particular place, whether or not that place belongs to him, and (3) intends to have the object in the particular place for his "use or benefit" or that of another person.

[25] Joint possession pursuant to s. 4(3) of the Code requires knowledge, consent and some measure of control on the part of the person deemed to be in possession: Pham, para 16.

[26] A limited form of concealment, such as being inside a plastic bag, is not conclusive and does not address the ready accessibility thereof to a person in the presence of drugs and a firearm: McIntosh, para 44.

Motion To Acquit

[27] A motion to acquit will not be successful if there is admissible evidence which could, if believed, result in a conviction: R. v. Arcuri, 2001 SCC 54, [2001] 2 S.C.R. 828, paras 21 and 24. R. v. Abdo, 2016 ONSC 7957, para 4.

[28] The court in R. v. Abdo, paras. 9 and 11, held:

9. At the directed verdict stage, if the evidence is equally capable of supporting two reasonable inferences, one consistent with guilt and the other inconsistent with guilt, the case must be left with the trier of fact to determine what inference should be drawn in all of the circumstances of the case. See R. v. Russell, 2001 SCC 53, at paras. 48; R. v. Villaroman, 2016 SCC 33, at paras. 17-22, 32-34; R. v. Jackson, at paras 9-15; R. v. Collins and Pelfrey (1993), 1993 ONCA 8632, 12 O.R. (3d) 161 (C.A.), at paras. 22-30.

11. In short, as Binnie J. stated, in delivering the judgment of the majority of the Supreme Court of Canada in R. v. Barros, 2011 SCC 51, [2011] 3 S.C.R. 368, at para. 48, a directed verdict of acquittal is not available if there is "any admissible evidence, whether direct or circumstantial which, if believed by a properly charged jury acting reasonably, would justify a conviction." See also R. v. E.B., [2004] O.J. No. 3528 (C.A.), at paras. 10-17. (emphasis added)

[29] Where there is any admissible evidence before the court, whether direct or circumstantial which, if believed by a properly charged jury acting reasonably, would justify a conviction, the trial judge is not justified in directing a verdict of acquittal: R. v. E.B. [2004] O.J. No. 3528 (C.A.) para 11.

Drawing Of Inferences

[30] The direct evidence in this case, including what the OPS seized on July 15, 2014 from Unit 232, the Jeep and the other direct evidence must be examined in light of whether the evidence if believed could reasonably support an inference of guilt against Mr. Dokaj.

[31] In a trial, a trier of fact may draw factual inferences from the evidence introduced. Permissible inferences are those which can be reasonably and logically drawn from a fact or group of facts established by evidence. An inference which does not flow logically and reasonably from established facts is impermissible and constitutes impermissible conjecture and speculation: R. v. Morrissey (1995) O.A.C. 161, para 52.

[32] The issues for the court on this motion for a directed verdict of acquittal accordingly are much different from determining whether the evidence establishes guilt at the end of a trial.

[33] Like a preliminary inquiry, the issue on this motion is whether the evidence as presented, if believed, could reasonably support an inference of guilt and as to the central issue on this motion; whether Mr. Dokaj was in possession of the drugs, the shot gun or monetary proceeds of a criminal offence.

[34] The Supreme Court in R. v. Arcuri, 2001 SCC 54, 2001 S.C.C. 54, paras 23, 25, 26, 30 and 32, defines the role of the court on this motion in the absence of direct evidence as follows:

(a) The court is to consider all the evidence both direct and circumstantial;

(b) The court is to determine whether an essential element of the offence may reasonably be inferred from the circumstantial evidence;

(c) The limited weighing of the evidence includes an assessment of the circumstantial evidence to determine if it is reasonably capable of supporting the inference sought by the Crown;

(d) That court is required to conduct a limited weighing of the circumstantial evidence to determine if it could reasonably support the inferential gap of evidence missing due to the absence of direct evidence of the fact. Circumstantial evidence requires additional reasoning to determine the missing evidence of fact;

(e) The court’s assessment of the evidence does not involve the question whether the evidence is credible, nor whether the evidence should be believed;

(f) The assessment of evidence does not address whether the court would find the accused guilty;

(g) The court during this assessment does not weigh the evidence or consider the quality thereof;

(h) The court does not draw factual inferences;

(i) The sole issue is whether the evidence, if believed, could reasonably support an inference of guilt; and

(j) The court’s task is to determine whether there is any admissible evidence which if believed, would justify a trier to infer guilt. (emphasis added)

[35] In conducting this limited weighing or assessment of circumstantial evidence, the judge takes the case for the Crown at its highest. That means that the judge must proceed on the basis that all available reasonable inferences might be drawn in favour of the Crown by the trier of fact, accepts the credibility of the evidence relied upon by the Crown and assumes the reasonable inferences from the primary facts that are most favourable to the Crown: R. v. Jackson, 2016 ONCA 736, para. 7.

[36] If the court decides that, on a view of the evidence most favourable to the Crown, the circumstantial evidence could reasonably support the inferences necessary to establish guilt, the accused is to be put to trial. It is irrelevant that the evidence also supports inferences inconsistent with guilt: Abdo para 7 and 8; R. v. Sazant, 2004 SCC 77, [2004] 3 S.C.R. 635, at para. 18; R. v. Foster (2008), 76 W.C.B. (2d) 769 (Ont. S.C.), at para. 31; and R. v. Howells, 2009 BCCA 460, 85 W.C.B. (2d) 370, at paras. 13-14.

[37] The court in R. v. Munoz, 2006 ONSC 3269, para 25 stated:

The process of inference drawing was described by Doherty J.A. in R. v. Morrissey, (1995), 1995 ONCA 3498, 22 O.R. (3d) 514, [1995] O.J. No. 639, 97 C.C.C. (3d) 193 (C.A.), at p. 530 O.R., p. 209 C.C.C. as follows:

A trier of fact may draw factual inferences from the evidence. The inferences must, however, be ones which can be reasonably and logically drawn from a fact or group of facts established by the evidence. An inference which does not flow logically and reasonably from established facts cannot be made and is condemned as conjecture and speculation.

Inferences to be permissible must be reasonably drawn from the evidence and cannot be based on speculation: Munoz, para 22.

Absence Of Direct Surveillance Evidence Of Mr. Dokaj Prior To July 15, 2014

[38] The surveillance officers did not testify that they identified or saw Mr. Dokaj prior to July 15, 2014.

July 15, 2014 Surveillance Related To Mr. Basha, Mr. Dokaj And The Concord

[39] The OPS officers on July 15, 2014 were conducting surveillance of other persons during which the Concord containing Mr. Basha and Mr. Dokaj was observed. The OPS changed the object of their surveillance to Mr. Basha and the Concord.

[40] Mr. Basha and Mr. Dokaj exited 790 together. Mr. Basha carried a shopping bag. Mr. Dokaj was observed by Officer Gidley as “looking hard” in different directions as they exited 790, walked to and entered the Concord and then drove away. Detective Munro interpreted these glances by Mr. Dokaj as visual surveillance while accompanying Mr. Basha.

[41] Mr. Basha drove to and stopped the Concord eight minutes later at a mailbox. A black male was standing there. Upon the arrival and the stop of the Concord, the black male entered and sat in the back seat of that vehicle for less than 2 minutes. During this brief encounter, police observed Mr. Basha looking down to his lap. The black male exited the Concord and Mr. Basha thereupon drove away. Police believe this was a drug related encounter but did not observe anything exchanged or a hand movement between Mr. Basha and the male in the back seat of the Concord during this encounter.

[42] Mr. Basha was seen by the OPS on several prior occasions at 790 and entering Unit 232. The evidence is that he had a key to the 790 building and to Unit 232 on his key ring together with a key to the safe containing drugs in the second bedroom in Unit 232. Those factors and his presence within Unit 232 might support an inference that such keys gave him access to the drugs and drug equipment within Unit 232.

[43] Mr. Basha is not the direct subject of this motion. His counsel made no submissions on this motion by Mr. Dokaj and accordingly the court is not determining whether the evidence supports any inferences as against Mr. Basha.

[44] As to Mr. Dokaj’s motion however, the evidence is that Mr. Basha was observed during surveillance on other prior occasions having short meetings with people and according to the surveillance officers, some of those meetings involved apparent exchanges of things including money. These other occasions of brief meetings combined with all the evidence might support a reasonable inference that Mr. Basha was trafficking in drugs during such short meetings, including the mailbox back seat meeting on July 15 in the presence of Mr. Dokaj. There is therefore some evidence which might support an inference that Mr. Dokaj had knowledge of drug marketing on July 15 which may also be considered together with any circumstantial evidence as to Mr. Dokaj’s presence at 790 and in Unit 232 and his resulting knowledge of, access to and an element of control as to the drugs and firearm in that unit.

July 15, 2014 Arrest Of Mr. Basha and Mr. Dokaj

[45] The OPS on July 15, 2014 within 10 minutes after the above mailbox encounter stopped and arrested Mr. Basha who was driving the Concord and Mr. Dokaj who was a passenger therein.

[46] At the time of arrest:

(a) Mr. Basha had 5.4 grams of cocaine in his pocket;

(b) Mr. Dokaj had no drugs on him;

(c) Police searched the Concord and seized two bags of cocaine from the trunk interior wheel well cavity which is accessible behind the trunk interior wall carpeting. The two quantities of cocaine were 32.5 grams and 46 grams, or 78.5 grams combined;

(d) There were two cellular phones on Mr. Dokaj at the time of his arrest; and

(e) There were another three cellular phones on the floor of the Concord near the gas or brake pedals. One of those phones signalled some 20 to 25 incoming calls and/or texts during a four and one half hour period following the arrest of these two men.

[47] Mr. Basha, Mr. Dokaj and the Female were each released and not charged following their arrest on July 15, 2014.

Absence Of Direct Evidence Of The Presence Of Mr. Dokaj In Unit 232 and in a Room Therein Containing Cocaine

[48] There is no direct evidence of Mr. Dokaj:

(a) being at or inside the 790 building prior to July 15, 2014;

(b) being inside Unit 232 on or before July 15, 2014;

(c) being inside one of the two bedrooms containing the drugs prior on or prior to July 15, 2014;

(d) being observed by the OPS with Mr. Basha prior to July 15, 2014; and

(e) being the object of the OPS surveillance which originally involved people other than Mr. Basha, later included Mr. Basha, 790, Unit 232 but did not include Mr. Dokaj until July 15, 2014.

[49] Mr. Dokaj was not the subject of OPS surveillance prior to July 15, 2014. None of the OPS officers testified they had seen Mr. Dokaj prior to July 15.

Subsequent Arrest and Charges

[50] Mr. Basha and Mr. Dokaj were arrested again, separately and then charged with these offences on September 4, 2014.

[51] At the time of his arrest, Mr. Basha fled from police and while doing so discarded a packet containing 1.6 grams of cocaine.

[52] Mr. Dokaj was arrested in the stairwell of 790 on September 4, 2014.

[53] The 14 counts all relate to conduct as of July 15, 2014, except for the single charge against Mr. Basha of possession of 1.6 grams of cocaine on September 4, 2014 as he fled from police at the time of his arrest.

[54] The evidence as to the subsequent events on September 4 is not evidence of guilt regarding the prior alleged misconduct in counts 1 to 13. The September 4 evidence is later in time and constitutes subsequent circumstantial evidence. It is not proof of guilt of the charges against Mr. Dokaj as of July 15, 2014.

[55] Such subsequent September 4 circumstantial evidence may be considered together with the direct prior evidence of:

(a) Mr. Dokaj’s arrest on July 15 and September 4 in relation to the drugs and firearm found on July 15 in Unit 232;

(b) Mr. Dokaj being inside 790 and exiting the back door of that building with Mr. Basha on July 15 and the arrest of Mr. Basha and the Female on July 15 in relation to the presence of large quantities of cocaine inside Unit 232 and an additional 78.5 grams of cocaine inside the trunk of Mr. Basha’s Concord and 5.4 grams of cocaine on Mr. Basha’s person on July 15;

(c) the presence of the City of Ottawa gym card with photo identification of Mr. Dokaj being on top of a night table in a bedroom with male and female clothing in the closet of that room which contained 269.4 grams of cocaine and 17.5 grams of crack cocaine of which were accessible via a key on the closet floor in that closet; and

(d) the presence of Mr. Dokaj’s driver’s license inside the Jeep which vehicle the OPS had noted as being parked at 790 beside Mr. Basha’s Concord on several occasions prior to July 15 and Mr. Basha’s accessing that Jeep several times including on July 15, 2014.

[56] The September 4 arrest of Mr. Dokaj inside the stairwell of 790 may however be considered as a subsequent fact. A trier of fact might consider that circumstantial fact related to his presence in and his exit from the rear door of 790 on July 15 with Mr. Basha.

[57] Mr. Dokaj’s presence in the stairwell of 790 on September 4 might support a reasonable inference that:

(a) Mr. Dokaj had some connection to the 790 building, beyond him simply exiting therefrom on one occasion with Mr. Basha on July 15 followed shortly thereafter with their mailbox meeting in the Concord with the black male and their almost immediate arrest thereafter on that date;

(b) Mr. Dokaj at the time of his arrest on September 4 was inside the 790 building despite Mr. Basha not being there, despite having no keys 790 or Unit 232 keys on him at the time and despite the fact that his July 15 arrest involved the seizure of large amounts of cocaine and some crack cocaine inside Unit 232 and the arrest of himself, Mr. Basha and the Female in relation to the drugs in Unit 232 on that earlier date;

(c) Mr. Dokaj on September 4 attended, entered into the 790 building and was in the stairwell at the time of his second arrest; and

(d) There is no evidence where Mr. Dokaj went inside the 790 building or whether he went to or was inside Unit 232 on September 4. It could possibly be inferred that people entering a 6 or 7 storey multiple unit apartment building commonly do so to attend a unit and commonly utilize an elevator rather than the stairwells to attend at a unit, unless the unit they are attending is on one of the lower floor, such as Unit 232.

[58] Triers of fact might logically infer that the principle purpose of a vehicle driver’s license is the legal requirement that someone like Mr. Dokaj needed one to drive the Jeep and may make a logical inference that he drove or intended to drive that vehicle. The OPS during July 15 surveillance observed the presence of the Jeep parked at 790 but did not testify observing the Jeep arriving to or departing from 790 on July 15, 2014 prior to Mr. Dokaj’s departure as a passenger in the Concord to and during the brief July 15 mailbox meeting and his arrest at a time when his driver’s license was found inside the Jeep.

[59] Surveillance evidence reported the Jeep parked regularly at 790 since July 9 and adjacent to Mr. Basha’s Concord. Mr. Dokaj’s driver’s license found inside the Jeep by inference might further connect him to 790 and his gym identification pass card found inside a bedroom of Unit 232 which contained a large quantity of drugs and the firearm.

[60] Triers of fact may consider that the Unit 232 apartment layout included a single bathroom, separate from the two bedrooms. A trier might infer that use of that washroom did not require access to a bedroom where the Ottawa gym pass card of Mr. Dokaj was located. Mr. Dokaj’s Ottawa gym card with photo ID again was on the night table inside one of the bedrooms.

[61] It would be impermissible speculation to consider that such gym identification card was inside Unit 232 prior to July 15, 2014. That gym identification however was according to the evidence in Unit 232 on July 15 when it was seized from the bedroom night table, a room in which there was a considerable quantity of drugs and a firearm. A trier might reasonably infer that such identification card was not placed on that bedroom night table as a result of Mr. Dokaj attending inside Unit 232 on July 15 and a requirement that he use the separate apartment washroom on that date.

[62] A gym identification card is not a passport. A trier might reasonably infer that it is not uncommon for a twenty year old to regular use and consider such access identification important and not something one would commonly leave inside an otherwise stranger’s bedroom on a chance or first visit to Unit 232.

[63] A trier might reasonably infer on all the evidence that Mr. Dokaj was inside the Unit 232 bedroom where his gym identification was placed on the bedside table, in a room which contained a considerable quantity of drugs. It might be a reasonable inference that Mr. Dokaj’s presence in that bedroom would be with the knowledge of the tenants and/or occupants of Unit 232, as he had no key on him at the time of arrest to enter that building, that unit and that strangers do not normally enter the bedroom of an apartment they are attending for the first time and leave their identification card on the bedside table in a bedroom.

[64] It might be reasonable to infer that Mr. Dokaj was in the bedroom where his photo identification was found for reasons other than his use of a washroom in another room on July 15, 2014.

[65] A consideration of all the circumstantial evidence might permit a logical inference that Mr. Dokaj had access to and was present inside the bedroom where his identification was found and that if he had that liberty of movement within Unit 232, he had knowledge of the drugs and or the gun present in that bedroom closet.

[66] Knowledge of the drugs and/or the firearm in that bedroom alone is insufficient to establish possession without some element of control.

Whether Inference As To Some Measure of Control

[67] The evidence of the sawed-off shot gun in a plastic bag inside the closet in bedroom 1 must be considered in conjunction with the quantity of drugs in that same bedroom closet, the drugs in the second bedroom closet, the drug cutting, pressing and the drug treatment equipment in the apartment hall closets. The British Columbia’s Court of Appeal in R. v. Munif, 2009 BCCA 451, para 7, accepted the trial judge’s reasoning that the presence of such drugs together with a rifle as in this case led to the only reasonable inference that the firearm was in that residence for the purpose of protecting the illegal drug assets and operation.

[68] A trier might reasonably infer that the shot gun in this case demonstrates the extent to which the owners of these drugs were prepared to go in order to protect such assets from others. It is reasonable to infer that physical access to the drugs in Unit 232 was restricted to a select few who were trusted.

[69] Despite the challenge on appeal to the trial judge’s reasons in concluding that the accused had knowledge and some level of control of the drugs resulting in his trial conviction, the following reasons of the trial judge were repeated and upheld on appeal in Munif, para 7:

[60] The totality of the evidence implicating MUNIF in the dial-a-dope operation located in the HAZEL St. residence can be summarized as follows. MUNIF was in possession of a key that allowed him free access to this residence. This is a clear indication that he had a measure of control over the residence. It would have been impossible for him not to have knowledge of the large quantities of drugs and drug paraphernalia scattered about the kitchen, the living room and dining room. Given the quantity of drugs and cash in the residence, the common sense inference is that only a trusted member of the illegal operation would be given such free access to the residence.

[61] I am satisfied that the only reasonable inference to be drawn from the above evidence is that MUNIF was a party to the illegal drug enterprise that was being run out of the HAZEL St. residence. He had access to and control over the residence and its contents; he had knowledge of the drugs in the residence, the drugs were clearly possessed for the purpose of trafficking, and he was an active participant in that operation. In the present case, the strength of these inferences is not diminished by the fact that others may also have had knowledge of and control over the illegal operation.

[62] With respect to the shotgun in the living room, the only reasonable inference to be drawn is that this shotgun, minus its filed-off serial number, was in the residence for the purpose of protecting the illegal operation. I am satisfied beyond a reasonable doubt that MUNIF must have known of the presence of this readily visible weapon and its importance to the illegal operation to which he was a party. No other reasonable inference arises on the evidence.

[63] On behalf of MUNIF, defence counsel has urged upon me another inference, which he asserts is equally plausible. Perhaps MUNIF was just an innocent visitor who had been given a key so that he could come and go during his temporary residency. He may have had knowledge of the drugs and the shotgun that were in the residence, but he would not have had any control over them. In my view, this is not a plausible inference when one considers the totality of the evidence before me. Drugs worth in excess of $10,000 were spread throughout the kitchen, dining room, and living room. Considerable quantities of cash were stuffed in shoeboxes, one a shelf in the kitchen, another in the spare bedroom. Given the quantity of drugs and cash in the residence, it is unlikely that a mere visitor who was not a trusted member of the illegal operation would be given free access to this residence. (emphasis added)

[70] Mr. Munif had important access to that residence in the form of a key. The evidence as to Mr. Dokaj is that he did not have a building or unit key on his person upon his arrest on July 15, 2014.

[71] Mr. Dokaj’s gym identification on the bedside table in a room containing openly accessible drugs and the rifle, his driver’s license in the Jeep which had been parked at 790 beside Mr. Basha’s Concord on several dates prior to July 15 and Mr. Basha’s accessing that vehicle, the Jeep keys located in Unit 232, his relationship, however defined or limited, with Mr. Basha as evidenced by his presence with him at 790 on July 15 and his presence at 790 on September 4, 2014 might permit a reasonable logical inference of his presence inside Unit 232 and bedroom 1 or room 3, which contained readily accessible quantities of drugs, a modified rifle, and thereby access to and some element of control of the drugs in that bedroom given the value of such assets and the degree of control to which the owner of those assets was prepared to exercise.

[72] Accessibility to the superficially concealed drugs and an accompanying firearm were deemed sufficient at trial to conclude the Crown had established knowledge and sufficient ability of control in McIntosh, para 44, as that court concluded that the quantity and the value of those drugs indicated that the owners of the drugs maintained accessibility to permit that accused’s ability of access to the market thereof. The evidence might permit an inference that Mr. Dokaj was present inside Unit 232 and the bedroom where his identification was found, which permitted him access to the drugs and firearm within that closet for their intended purpose.

[73] The lease of Unit 232 to a Mr. Leblanc and Mr. Luni and the presence in Unit 232 on July 15, 2014 of the Female who stated she was a visitor in Unit 232, namely the possible and actual presence of others in Unit 232, does not alter the above circumstantial evidence and the permissible logical inferences thereon regarding Mr. Dokaj.

[74] It might on the present evidence be hard to argue that if someone has ready access to stock piles of drugs, drug treatment and drug pressing equipment and a firearm that he or she lacks any element of power or control in relation to the such articles: R. v. Savory, 1996 ONCA 2001, 94 O.A.C. 318, para 7, relying upon R. v. Terrence, (1980), 1980 ONCA 74, 55 C.C.C. (2d) 183 (Ont. C.A.), aff‘d R. v. Terrence, (1983), 1983 SCC 51, 4 C.C.C. (3d) 193 (S.C.C.;) and R. v. Chambers, (1985), 1985 ONCA 169, 20 C.C.C. (3d) 440 (Ont. C.A.).

[75] Whether the trier in this case will conclude the Crown has met the criminal burden of proof against Mr. Dokaj as to the drugs and firearm in this bedroom is not the issue on this motion. The issue is whether the Crown has introduced any or sufficient direct and circumstantial evidence to permit the trier to consider and reasonably infer those conclusions from the evidence.

[76] The entirety of the above evidence together with the other evidence referred to below, if believed, permits a reasonable inference that Mr. Dokaj had access within Unit 232, was in this bedroom and had sufficient knowledge and control of the drugs and/or firearm in that bedroom closet.

S. 21 - Aiding or Abetting

[77] The Crown also relies upon criminal responsibility pursuant to s. 21 of the Code in the form of Mr. Dokaj adding or abetting.

[78] Section 21 states:

21 (1) Every one is a party to an offence who

(a) actually commits it;

(b) does or omits to do anything for the purpose of aiding any person to commit it; or

(c) abets any person in committing it.

(2) Where two or more persons form an intention in common to carry out an unlawful purpose and to assist each other therein and any one of them, in carrying out the common purpose, commits an offence, each of them who knew or ought to have known that the commission of the offence would be a probable consequence of carrying out the common purpose is a party to that offence.

[79] Mere presence at the scene of an offence is insufficient to establish criminal liability. Something beyond merely being present is require and can include encouragement of the principal offender, keeping watch, an act which tends to prevent or hinder interference with accomplishment of the criminal act or being ready to assist the principal: R. v. Dunlop, 1979 SCC 20, [1979] 2 S.C.R. 881, p. 106 and R. v. Arias-Jackson, 2007 SCC 52, [2007] 3 S.C.R. 514.

[80] The court heard evidence of:

(a) Detective Gidley that Mr. Dokaj was looking hard around as he and Mr. Basha on July 15 exited 790 and departed to the 2 minute mailbox 2 meeting with the male who entered and sat in the back seat of the Concord;

(b) the smaller 5.4 gram size quantity of cocaine on Mr. Basha’s person at the time of their arrest minutes later; and

(c) the evidence of other prior brief encounters between Mr. Basha and others;

regarding the Crown’s allegation that the July 15 mailbox meeting was a drug transaction and whether the evidence meets the criminal standard of proof and whether Mr. Dokaj was present in some associated role to assist Mr. Basha in regards thereto.

[81] The evidence of this single meeting if examined in isolation, is insufficient to reasonably infer or support culpability against Mr. Dokaj under s. 21. This mailbox meeting evidence must however be considered in light of all the evidence. The cumulative evidence of what was occurring in Unit 232 and the logical permissible inferences that might be drawn in that regard as to Mr. Dokaj, could if believed, reasonably support for the Crown’s sought inference as to Mr. Dokaj aiding or abetting Mr. Basha on July 15, 2014.

[82] The credibility and sufficiency of that evidence on a criminal standard are again different issues and not the subject of this motion.

Defence Jurisprudence

[83] Mr. Dokaj submits that on the evidence a verdict of acquittal is justified and appropriate. He relies upon a number of decisions where such an acquittal was granted.

[84] Each of those decisions, as on every such motion for a directed verdict, is fact specific and not determinative of this motion.

Drugs Concord Wheel Well

[85] The 78.5 grams of cocaine inside one of the Concords back wheel wells was not visible, was wrapped in plastic and was behind the trunk carpeted side wall.

[86] There is no direct or circumstantial evidence to support a reasonable inference that Mr. Dokaj was aware of the presence of those drugs inside the Concord on July 15, 2014.

Mr. Dokaj’s Possession of $250 On July 15, 2014

[87] There is no direct or circumstantial evidence that the $250 in the pockets of Mr. Dokaj on July 15, 2014 was, nor is it reasonable to infer that such money, or part thereof, proceeds from the sale of drugs on that date, any prior date, or proceeds from the commission of any other offence.

[88] The quantity of money and the denominations thereof on Mr. Dokaj on July 15 cannot logically support a reasonable inference that such money, or part thereof, was proceeds of crime.

Conclusion

[89] For the above reasons, the court concludes that the total evidence, including the above mentioned inferences which may reasonably be drawn from the circumstantial evidence, constitutes some evidence to support an inference of Mr. Dokaj’s constructive joint possession of the drugs and firearm in Unit 232.

[90] The motion for a directed verdict of acquittal is accordingly dismissed.

Mr. Justice Paul Kane

Released: March 2, 2017