CITATION: R. v. Basha and Dokaj, 2017 ONSC 4910

COURT FILE NO.: 14-G2165

DATE: 2017/10/06

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Her Majesty The Queen

Respondent

– and –

Valdrin Basha

Anton Dokaj

Applicants

C. Reccord and J. Corbeil, for the Federal Prosecution Service

R. E. Conway, for V. Basha;

J. H. Hale, for A. Dokaj

TRIAL DATES: February 13–17, 20- 24, March 2, 9 and 10, April 3–5 and May 12 and 18, 2017

TRIAL DECISION

[1] The defendants are jointly charged with:

a. One count of possession of cocaine for the purposes of trafficking on July 15, 2014, contrary to section 5(2) of the Controlled Drugs and Substances Act, (“CDSA”) S.C. 1996, c. 19 (CDSA), thereby committing an offence under s. 5(3) of the CDSA (count 1);

b. One count of possession of crack cocaine for the purposes of trafficking on July 15, 2014, contrary to section 5(2) of the CDSA, thereby committing an offence under s. 5(3) of the CDSA (count 2);

c. Eight counts of firearm offences related to a 410 gauge shotgun on July 15, 2014, namely:

i. storing that gun unsafely by not rendering it inoperable by a secure locking device;

ii. storing that gun unsafely by readily accessible ammunition;

iii. possession of that gun for a purpose dangerous to the public peace;

iv. possession of that gun without lawful excuse without being the holder of a licence permitting such possession;

v. possession of that gun while knowing not being the holder of a licence;

vi. possession of an unloaded firearm, that gun, together with readily accessible ammunition at 790 Springland Drive, Ottawa (“790”) Apartment 232 (“Unit 232”), without being the holder of an authorization or licence permitting such possession at that place and the holder of registration certificate for that gun;

vii. possessing that gun knowing it had been obtained by the commission of an offence; and

viii. possessing that gun without lawful excuse, knowing its serial number had been altered or removed;

contrary to sections 86(2), 88(2), 91(3), 92(3), 95(2) 96(2) and 108(1)(b) respectively of the Criminal Code of Canada (the “Code”) (counts 3 to 11); and

d. possession on July 15, 2014 of proceeds of crime, namely money less than $5,000, contrary to s. 355 (b) of the Code (count 12).

[2] There are three additional charges against Mr. Basha, namely:

a. one count of possession of the 410 gauge shot gun on July 15, 2014 while prohibited under s. 109(1)(a) of the Code, contrary to s. 117.01(3) of the Code (count 11);

b. one count of breaching a probation order to keep the peace and be of good behaviour on July 15, 2014, contrary to s. 733.1(1) of the Code (count 13); and

c. one count of possession of cocaine on September 4, 2014, contrary to ss. 4, (1) of the CDSA, thereby committing an offence under sections 4(3) of the CDSA (count 14).

[3] Upon his arraignment at trial, Mr. Basha pled guilty to count 14, namely possession of cocaine at the time of his arrest on September 4, 2014.

[4] The Crown in argument indicated it was not proceeding with count 12 against Mr. Dokaj, namely possession of proceeds of crime.

[5] Mr. Basha testified in this trial and called two witnesses.

[6] The Crown submits that it has established constructive possession of the drugs and firearm inside unit 232 and Mr. Basha’s vehicle on July 15, 2014 against each accused.

July 15, 2014 Arrests and Warrant Search of Unit 232

[7] On July 15, 2014, the Ottawa Police Services (“OPS”) stopped the Chrysler Concord (“Concord) owned and driven by Mr. Basha and arrested Mr. Basha and Mr. Dokaj who was a passenger in that vehicle.

[8] The OPS at the time of these arrests searched and found:

• 5.4 grams of cocaine in the pocket of Mr. Basha;

• $200 in the pocket of Mr. Basha outside his wallet; and Concord

• 32.5 gram and 46 gram quantities of cocaine inside plastic bags located in the trunk hidden behind the interior wall carpet in the wheel well cavity.

[9] On July 15, 2014, the OPS executed a warrant search of:

a. Unit 232 at 790;

b. 304 Southcrest Private which was the residence of the parents of Mr. Basha;

c. The Black Jeep Liberty license plate BKLP 882 (“Black Jeep”) registered to a female named Eleftheria Petroulias; and

d. the Concord owned by Mr. Basha.

[10] At the time of this July 15, 2014 warrant search of Unit 232, the OPS arrested Ms. Ismhali who was inside that apartment. The two accused and Ms. Ismhali were taken into custody on July 15, 2014 but were not charged. One of the OPS Officers spoke with Mr. Basha at the police station and provided him with his business card upon his release on July 15, 2014 with instructions to call him with information about illicit drugs and other people involved with drugs.

[11] On July 15, 2014 the Black Jeep was parked at 790. Mr. Dokaj’s driver’s license was in the Black Jeep’s glove compartment. It listed his address as 107 Grand Avenue, Apt. 512, London ON. There were no drugs in that vehicle.

[12] Unit 232 is a 2 bedroom apartment which then was rented to Mr. M. Leblanc, his brother, and Mr. A. Lumi pursuant to a written lease. Keys then in the possession of Mr. Basha included a key to the exterior door of the 790 apartment building and to the front door of Unit 232 although Mr. Basha denies having possession of the key to Unit 232 on July 15.

[13] Upon conducting the July 15, 2014 warrant search, the OPS seized in Unit 232 several quantities of cocaine, crack cocaine, a 410 sawed off shotgun, ammunition for that firearm, numerous cellular telephones, product identified by Officer Emery as ingredients commonly used as a drug cutting agent and tools and equipment to compact the blended drug product for sale.

[14] Ms. Ismhali was present alone inside Unit 232 upon the OPS warrant search of that apartment on July 15, 2014. She initially falsely identified herself, 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 that she was there as a visitor, visiting someone named “Johnny” but could not provide his telephone number.

[15] Ms. Ismhali was subsequently deported from Canada by Canada Immigration between July 15 and September 4, 2014 when the OPS attempted to arrest and charge her along with the arrest and the charging of Messrs. Basha and Dokaj as to what police found in the warrant search of Unit 232 on July 15, 2014.

[16] During the July 15, 2014 warrant search, the OPS seized the following items in the locations as indicated in Unit 232:

Bedroom – Room 3 (“Bedroom #3”):

• a City of Ottawa gymnasium identification, pass card and photo in the name of Mr. Dokaj was located 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 that safe was in an open plastic cup or container on the floor beside the safe which also contained some plastic baggies. The keys seized from Mr. Basha did not include a key to this safe in Bedroom #3. Opening the safe released a strong smell of ether;

• 124 gram and 129 gram quantities of cocaine in plastic bags were inside this small safe which combined totals 253 grams or almost 11 ounces.

• A “Jack Daniels” metal container was on the floor of this bedroom closet. It contained four knotted bags which contained 16 grams, 0.2 grams and 0.2 grams of cocaine, and 17.5 grams of crack cocaine respectively;

• a sawed off shotgun and 18 ammunition shells for that gun were in plastic bags on the floor at the back of this bedroom closet behind a television wall mount frame standing on the closet floor. That gun’s serial number had been removed or altered;

• a woman’s purse inside this closet contained a temporary driver’s license in the name of Merjrem Selmani which the OPS believed was an alias name used by Ms. Ismhali;

• a second woman’s purse was found under the bed in this room. It contained a cheque book in the name of Ms. Ismhali, her Kosovo passport with her true name and date of birth and Canada immigration deportation proceeding documentation regarding Ms. Ismhali; and

• four cellular telephones.

Mr. Basha denied in his testimony ownership or any knowledge about the drugs or the shotgun found in Bedroom #3.

Bedroom – Room 4 (“Bedroom #4”):

• keys to the Black Jeep then parked at 790 were on top of the dresser in this bedroom. Mr. Basha earlier on July 15, 2014 was observed unlocking, entering and then re-locking the Black Jeep;

• the bedroom’s closet contained male clothing;

• the bedroom’s closet contained a small safe on the floor. A key to that safe was on the closet shelf under some blankets. A second key to this safe was contained on connected key rings recovered from Mr. Basha and the Concord upon his arrest. Keys on that ring included a key to the ignition of the Concord owned and driven by Mr. Basha at the time of his arrest on July 15, 2014 and keys which opened the exterior doors of the 790 apartment building and the front door of Unit 232. Mr. Basha denied possession and knowledge about several of the keys;

• a plastic knotted bag on top of the safe in this closet contained 48 grams of cocaine; or 1.7 ounces;

• there were men’s clothing on top of the closet shelf. Under that clothing was a second key to the safe in that closet;

• the safe contained a knotted plastic bag containing a hard knotted 2.5 grams of crack cocaine, several elastic bands and pieces of torn paper;

• two digital scales were on the closet floor beside this safe, one with a white powdery substance on the weighing portion of that scale;

• a small metal box which, according to Officer Emery, was a device to compress drugs including cocaine was found on the closet floor near the safe;

• four cellular phones;

• the top drawer in the tall set of dresser drawers in this bedroom, or on top of that dresser, contained a hand held Taser as well as documentation addressed to or referring to Mr. Basha, including:

a) an April 11, 2014 MTO notice of change of address to 328 Garden Glen Private;

b) a personal bank assessment of Mr. Basha listing his address as 328 Garden Glen Private and dated March 2014; and

c) an Ottawa Hospital medical emergency report regarding Mr. Basha dated May 20, 2014 listing his address at his parent’s home at 304 Southcrest Private;

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.

Mr. Basha at trial denied ownership or knowledge about the drugs in Bedroom #4.

Hallway Closet Inside Unit 232:

• one “9 by 15” welded steel frame with no top or bottom;

• a box of wooden rectangular pieces some of which snuggly fit inside the above steel frame;

• containers of acetone, incense, elaborate and simple face masks and a sprayer bottle which Detective Emery, testified are tools commonly used to blend cutting agents into cocaine to increase mixed quantities of that drug in order to increase revenue;

• six large vice grips which according to Officer Emery can be used to apply and maintain pressure upon wood and/or metal plates to compress materials inside the above steel frame. Officer Emery testified these tools are sufficient to constitute and operate a larger drug press; and

• a food weight scale with white powder residue on the scale tray.

Mr. Basha denied any knowledge about the drug presses and equipment found inside Unit 232 on July 15.

Kitchen:

• another ignition key of the Black Jeep was on the kitchen counter;

• the refrigerator had four large plastic bags containing a white powdery substance which Officer Emery believed could be used as a buffing agent to cut into cocaine;

• 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 2014 notice of rent increase addressed to Mr. Leblanc and Mr. Luni regarding Unit 232; and

• one officer noted but did not take possession of some keys on a ring on the kitchen counter.

Dining Room:

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

Living Room:

• two cellular telephones on the living room table.

[17] There is no fingerprint evidence as to the drugs and above objects found in Unit 232 or on the drugs in the Concord trunk seized on July 15, 2014.

[18] There is no evidence as to the ownership of the clothing in Unit 232 on July 15, 2014.

Connection to Unit 232 as of July 15, 2014

[19] Mr. Basha testified that Unit 232 was a party location where he and others, including people he invited from the Greek restaurant where he allegedly worked part-time came to party, drink and consume drugs.

[20] Mr. Basha testified he “hung out” at Unit 232 in addition to the evening parties he attended there.

[21] The surveillance evidence establishes Mr. Basha’s regular attendance at 790 including his attendance at Unit 232, often for hours at a time during the week, including mornings and afternoons which is when most people are at work.

[22] Medical records of Mr. Basha and his testimony indicate:

• he suffered a head injury including hemorrhages in a fight at a bar in 2013 and thereafter experienced numbness;

• he attended at a hospital emergency department on May 16, 17 and 20, 2014, as the full right side of his body was experiencing numbness;

• he attended a neurologist on May 27, 2014. Those medical records indicate his residence then was at his parent’s home.

[23] A January 16, 2015 medical report from the Royal Ottawa Hospital assesses Mr. Basha’s condition as hyper vigilant with head trauma dating back to a 2013 head injury suffered in a bar fight.

[24] Mr. Basha testified that in July, 2014:

• He had part-time employment at a Greek restaurant, namely that he was on call and worked when he was called to do so;

• he was badly addicted to cocaine at the time and was consuming a lot of it;

• he went to Unit 232 to hang out there and do cocaine during the daytime when he was not working;

• he went to Unit 232 at night to party with others, to drink and do cocaine there with others;

• he got very drunk on several occasions at these evening parties in Unit 232, especially on weekends, but not to the point of passing out;

• as to his then consumption of cocaine and alcohol; in his words, he was “pretty messed up” at the time;

• he agreed that it is hard to remember during periods of his heavy consumption of cocaine and alcohol.

• He did not know or meet any of the three males listed as the tenants of Unit 232. One of those tenants of Unit 232 was Angelo Lumi who Mr. Basha testified he did not know and would not recognize. He then in cross-examination contradicted this statement upon being shown a photograph of Mr. Lumi who he then acknowledged he did know.

[25] Upon arresting Mr. Basha on July 15, 2014, police searched his wallet which contained a July 4, 2014 Government of Canada cheque payable to him at 304 Southcrest Private, his parents’ home. Police seized a bank statement in his parent’s home addressed to Mr. Basha at his parents’ address.

[26] Mr. Basha testified that he resided in the basement of a townhouse at 328 Garden Glen Private on July 15, 2014. That is shown as his address on his MTO plate registration of his Concord and an automobile insurance certificate of that Concord as of April 11, 2014. Ms. Niran testified Mr. Basha lived there and that she had attended there once with him. Mr. Basha Senior testified his son did not live with he and his wife at 304 Southcrest in the summer of 2014, but did not testify that his son then resided at 328 Garden Glen Private.

[27] Regardless of how often he may have slept in the basement at 324 Garden Glen Private, Mr. Basha was frequently in attendance during the day and in the evenings in Unit 232, as confirmed by his testimony and OPS surveillance evidence.

[28] His alleged residence in the summer of 2014 at 328 Garden Glen Private, was in one of 12 attached townhouses. He stated he lived in the basement of one of those houses and that students lived upstairs in that unit with whom he shared a kitchen but he did not remember where they went to school. He could not recall when, including the season, he started living there but stated he lived there prior to July 15, 2014, nor how long he lived there. He stated the rent was $550.00 per month but could not recall the last name of the person he paid the rent to or whether he paid that rent in cash or by cheque.

[29] The OPS found no drugs on July 15, 2014 on Mr. Dokaj, inside the Black Jeep or at the home of Mr. Basha’s parents at 304 Southcrest Private.

[30] As of July 15, 2014, the OPS had not observed Mr. Dokaj during prior surveillance. Their only observation of Mr. Dokaj was minutes prior to his July 15th arrest when the OPS for the first time observed him leaving the 790 building with Mr. Basha and then departing as a passenger in the Concord driven by Mr. Basha.

[31] As to the July 15th presence of the Ottawa gymnasium identification card of Mr. Dokaj in Bedroom #3, there is no evidence of how it came to be there or how long it had been there. More importantly, that is the only evidence inside that apartment to infer that Mr. Dokaj was ever inside Unit 232 as of July 15.

[32] Mr. Basha testified that Mr. Dokaj came to Ottawa in the Black Jeep occasionally in the summer of 2014 to work and stayed at his uncle’s home just outside Ottawa on these occasions. He testified he did not recall Mr. Dokaj dating Ms. Ismhali in the summer of 2014.

[33] The September 4, 2014 arrest of Mr. Dokaj in the stairwell at 790 is a subsequent attendance in that building. It is not evidence of his attendance at that time in Unit 232, nor what or who was then in that unit or who then resided there.

[34] Mr. Basha testified he was the former owner of the Black Jeep which he sold to Mr. Dokaj and it was later owned by Mr. Dokaj’s older brother. He testified that Mr. Dokaj drove the Black Jeep sometimes when he was in Ottawa. As of July 2014, the Black Jeep was registered to a female other than Ms. Ismhali, not to Mr. Dokaj or his brother.

Documents In Or On Dresser In Bedroom #4:

[35] Detective Munro conducted the search of Bedroom # 4. He testified that he found the above four documents addressed to or referring to Mr. Basha inside the top dresser drawer of this bedroom. He testified at the preliminary inquiry that he found such documentation on top of the dresser in this bedroom.

[36] Mr. Basha testified that these four documents on July 15, 2014 were inside his Concord glove compartment or in his residence at Garden Glen Private and not inside Unit 232.

[37] Mr. Basha testified that he never stayed overnight at Unit 232. He stated he had no knowledge as to the business card of his probation officer which noted his next appointment with her on July 31, 2014. He testified he understood his probation was completed as his probation officer had told him that he need not continue his regular probation attendances at her office as in the past. There is no evidence nor was it argued that the OPS made up this probation officer’s business card or the upcoming appointment with that officer.

[38] Detective Smith testified that in seizing the keys from the ignition of the Concord upon the arrest of Mr. Basha on July 15, 2014, he would have searched the Concord glove compartment. He did not testify that he found and removed these four documents from that glove compartment.

[39] Detective Smith also searched the home of Mr. Basha’s parents on July 15, 2014 and found a bank statement there addressed to Mr. Basha at that address. He did not testify he found the above documents in the parent’s home which confirms Mr. Basha statement these documents would not have been at that address.

[40] The alleged then home of Mr. Basha at Garden Glen Private was not searched by the OPS on July 15. These 4 documents seized on July 15, 2014 did not come from that residence.

[41] Detective Munro testified that the two scales he found in Bedroom #4 were on the closet floor beside the safe. His Investigation Action Report at the time indicated those scales were inside the safe in this closet. He testified that the July 15, 2014 video is accurate in demonstrating that those scales were on the floor beside the safe, not in it.

[42] Mr. Basha is suggesting that Detective Munro is not telling the truth and that he obtained and put the above documentation in Bedroom # 4 or made up this allegation in order to tie Mr. Basha to the drugs and gun contents of Unit 232 in support of these charges. Detective Munro acknowledged inconsistencies in his testimony but not as to the location of these documents in or on the dresser in Bedroom #4. I accept this officer’s testimony as to these documents being inside Bedroom #4 on July 15.

[43] Given Mr. Basha’s admitted regular attendance at 790 and Unit 232 as observed during surveillance, his change of clothing at 790 on one occasion and the number of contradictions in his testimony, the court concludes this documentation was on or in the dresser in Bedroom #4 on July 15, 2014. The court recognizes Detective Munro’s testimony has inconsistences as to “on” verses “in”. Those are minor compared to the contradictions in the testimony of Mr. Basha.

[44] These documents in Bedroom #4 reinforce Mr. Basha’s admission of his frequent attendance in Unit 232, the surveillance observations confirming his attendance at 790 and in Unit 232. All of this evidence establishes Mr. Basha’s connection to and regular attendance at Unit 232.

Keys

[45] Police testified that they seized a total of nine keys which are on four connected metal rings on July 15, 2014 from Mr. Basha as shown in exhibit 69. Three of those are small keys one of which opened the safe in Bedroom #4.

[46] Detective Smith testified he attended upon the July 15 arrest of Messrs. Basha and Dokaj and seized the keys in the ignition of the Concord then driven by Mr. Basha. Detective Smith testified there were multiple keys attached to the Concord ignition key.

[47] Detective Smith took those keys with him to the home of Mr. Basha’s parents. The oblong key on exhibit 69 opened the door of that residence. He then went to 790 and another of the keys he had seized from the Concord opened the side/back door of 790. He stated he then gave the keys he had taken from the Concord to Detective Hassan and thereupon returned to the parent’s home and participated in the search of that residence.

[48] The evidence is that the 9 keys on exhibit 69 include a Concord ignition key, a key to the exterior doors of 790, a key to Unit 232 and a key to the safe containing drugs in Bedroom #4.

[49] There is no evidence whether the keys on a ring found on July 15 in the kitchen of Unit 232 were attached during the warrant search of Unit 232 to the keys seized from the Concord ignition.

[50] Mr. Basha testified that on July 15, 2014, he had two separate key rings which combined had a total of five keys. Mr. Basha did not think he had other keys.

[51] He stated one key ring contained only the Concord ignition key and a pocket knife. There is no pocket knife on Exhibit 69. There is no second black topped Concord ignition key in exhibit 69 like the black topped ignition key he identified in exhibit 69 as the spare ignition key.

[52] He stated his second key ring contained four keys, namely:

a. a key to the 790 building, which he could not identify on exhibit 69;

b. a key to the lobby where he lived, which he could not identify on exhibit 69;

c. a key to the mailbox where he lived, which he could not identify on exhibit 69; and

d. a key to his parent’s home, which he identified on exhibit 69;

[53] On July 15, 2014 Mr. Basha had possession of more than five keys on two separate key rings.

[54] Mr. Basha testified that he had one key to the front/side door of the 790 building which contains Unit 232.

[55] Mr. Basha testified that he was given the 790 building door key by Ms. Ismhali to avoid her having to come down from the second floor and open the building door for him. That further evidences his frequent attendance at Unit 232.

[56] Mr. Basha’s statement that he had a “lobby” key to the building containing the townhouse of his residence at 328 Garden Gate Private confirms he needed another key to the unit containing the basement where he allegedly lived. These two keys, plus the mail box key at that residence, two Concord ignition keys, a key to 790 and a key to his parent’s home totals seven keys, which exceeds the five keys that he acknowledged having that day, including the four keys he allegedly had on a separate key ring. Mr. Basha’s recollection is incorrect.

[57] Mr. Basha initially testified he could not recall whether he had a key to Unit 232.

[58] In cross-examination, Mr. Basha then conceded that he occasionally had the key to Unit 232 which he would take with him upon his departure from that unit. He then testified that he was certain however that he did not have the key to Unit 232 with him on July 15, 2014. This is remarkable recollection by someone who could not remember many details as will be seen and could not identify the key to 790 or the lobby and unit key where he allegedly lived on exhibit 69.

[59] The court is satisfied on all the evidence that Mr. Basha on July 15, 2014 had a key to Unit 232 which Police testified is on Exhibit 69.

[60] The key identified as the safe key in Bedroom #4 on exhibit 69 is on the same key ring and next to the key he identified as to key to parent’s home and the second Concord ignition key thus supporting his possession of that safe key on July 15, 2014.

[61] Mr. Basha was not being honest as to the keys in his possession on July 15, 2014. The court concludes that Mr. Basha on July 15, 2014 had on his possession keys to Unit 232 and to the safe in Bedroom #4 as testified to by police.

[62] Mr. Dokaj did not have possession of a key to 790, to Unit 232 or to the safe in either bedroom closet of Unit 232 when he was arrested on July 15, 2014.

Value of Drugs Seized and Quantities Indicative of Trafficking

[63] Detective Emery was qualified as an expert to provide opinion evidence. He testified that based on his experience and training, he was of the opinion that:

a. A typical “line” of cocaine consists of .1 grams of that drug. Users normally buy ½ to 1 gram of cocaine for personal use;

b. Users of cocaine for personal consumption usually have 5 grams of cocaine or less in their possession.

c. A heavy user of cocaine may consume up to 5-7 grams per day;

d. 4.5 ounces of cocaine accordingly represents a 25 day supply for a heavy user of that drug;

e. 28 grams, or 1 ounce, of cocaine is not inconsistent with that quantity being possessed for personal use.

f. It is possible but less common that a heavy user with a lot of money might be in possession of 2 ounces or 56 grams of cocaine for their personal use;

g. 3 ounces or 84 grams of cocaine is more than he has ever seen possessed for personal use and while not discarding the possibility that such quantity may be for personal consumption by a wealthy extremely heavy user of cocaine; 3 ounces of cocaine is suggestive of trafficking or a wealthy consumer who is also trafficking that substance;

h. Possession of 4.5 ounces of cocaine is an indicator of trafficking;

i. the most popular or typical quantity purchased of crack cocaine is $20.00 for .1 to .14 grams of crack cocaine;

j. users of crack cocaine are typically found with 3.4 to 3.5 grams of crack cocaine in their possession.

[64] Based on the testimony of Detective Emery:

a. The 5.4 grams of cocaine found in the pocket of Mr. Basha;

b. The 48 grams of cocaine on top of the safe in bedroom #4;

c. The two .2 quantities and the 16 gram quantity of cocaine in the Jack Daniels’ box on the closet floor of bedroom #4; and

d. The 2.5 grams of crack cocaine found inside the safe in Bedroom #4;

based solely on the quantities thereof might be for personal consumption, however the 48 grams of cocaine suggest a wealthy owner who might also be trafficking.

[65] Detective Emery testified that the 281 grams or 10 ounces of cocaine in Bedroom #3 and the 78.5 grams or 2.8 ounces of cocaine in the trunk wheel well of Mr. Basha’s car are quantities suggestive of trafficking.

[66] Detective Emery testified as to the common street cost of cocaine and crack which decreases in cost with the higher quantity purchased. His testimony was that the cost for cocaine was between $180.00 to $300.00 for 2.3 grams and between $330.00 to $600.00 for 5 grams. He testified that the street cost of crack was $100.00 to $150.00 for 1 gram and $180.00 to 300.00 for 3.5 grams.

[67] There was no contradictory evidence as to the above average quantities in the possession of cocaine and crack users, what amounts are suggestions of trafficking and the average costs thereof. The court accepts this evidence.

[68] The average of the above costs therefore is $98.50/gram for cocaine and $131.00/gram for crack cocaine.

[69] The value using the average above prices is:

a. Some $7,732.00 for the 78.5 grams of cocaine in the Concord trunk wheel well;

b. Some $4,536 for the 48 grams of cocaine on top of the closet safe in Bedroom #4;

c. Some $27,678.00 for the 281 grams of cocaine in Bedroom #3;

d. Some $2,620.00 for the crack cocaine in the Bedrooms #3 and #4; and

e. Total value - $42, 566.00.

[70] In considering whether the above drug quantities seized might be for personal possession, the court notes as to Mr. Basha, that:

a. His 2000 Concord was a late model and therefore an automobile of lesser value;

b. He stated he had a key to the lobby which contained the 12 units at 328 Garden Glen Private, and to the unit where he lived in the basement and paid monthly rent of $550;

c. In July 2014, he testified he was employed part-time at minimum wage at a Greek restaurant as a delivery man and occasionally as a cook. He could not recall how long he worked there, how often he worked there, the hours he worked, how often he was paid or the average tips he earned. He stated he believed he worked mostly during afternoons and evenings during the week. As will be seen in the summary below of the June and July 2014 surveillance of 790, Mr. Basha was frequently at 790 during week days. The 112 hours of surveillance during 17 days never records him travelling to or from this alleged place of part-time employment nor to or from his alleged residence.

[71] The point is that this then 31 year old did not fit the profile of a wealthy person who might be in possession of 2 or 3 ounces, or 48 to 84 grams of cocaine for personal use, or the 78 grams of cocaine in the trunk wheel well of his Concord.

[72] The above evidence of the 124 grams and the 129 grams quantities of cocaine inside the Bedroom #3 safe, the 48 grams of cocaine on top of the closet safe in Bedroom #4, the 16 grams of cocaine and the 17.5 grams of crack cocaine inside the Jack Daniels’ box on the closet floor of Bedroom #3 are larger quantities of cocaine and crack cocaine of significant value.

[73] The above quantities and values combined with:

a. the buffing agents or powders which could be used as such agents;

b. the sawed off shot gun with ammunition;

c. the multiple scales; and

d. the breathing masks and equipment which could be used to compress drugs found in Unit 232;

establishes that a drug trafficking operation was being conducted out of Unit 232 as of July 15, 2014.

[74] Detective Emery explained why the OPS may not have found quantities of cash in Unit 232 on July 15, 2014. He stated the possibility that any ready cash was used to buy the drugs then in Unit 232 or is often separate from the drugs and hidden elsewhere. He stated that elastic bands like those found during the warrant search in Unit 232 are often used to bundle cash.

[75] The 78.5 grams of cocaine in the Concord trunk wheel well, with an approximate value of $7.7K far exceeds Mr. Basha’s alleged purchase of 5.4 grams of cocaine for his own consumption on that date. The quantity and value of the 78.5 grams in the Concord trunk, given Mr. Basha’s apparent limited financial circumstances, supports the only reasonable inference that that wheel well cocaine was for the purposes of trafficking.

Surveillance

[76] The OPS in 2014 conducted an investigation and surveillance of possible criminal drug activity involving four people who included Mr. Hussein Mohammed. Mr. Basha was not initially an object of such surveillance. Mr. Basha did not become a subject of that surveillance until May 13, 2014, when the OPS noted him during surveillance of Mr. Mohammed and then observed what the OPS suspected was a drug related exchange on that date.

[77] Mr. Dokaj was not part of or added to the expanded surveillance conducted in this project. The OPS first noted Mr. Dokaj during surveillance of Mr. Basha on July 15, 2014. The OPS arrested them shortly thereafter on that date.

[78] The surveillance of Mr. Basha included his activities, his Concord, a Black Jeep and his attendance at the 790 apartment building, its parking lot at 790 and Unit 232 therein.

[79] Eleven officers of the OPS testified in this trial as to their surveillance observations on May 13, June 6, 12, 13, 17 to 20, 24 to 27 and July 3 to 5, 9, 10 and 15, 2014. There is a total of 112 hours of surveillance during those 17 days.

[80] During this surveillance, Mr. Basha is observed attending at and leaving from 790 on numerous occasions in his Concord and at or in Unit 232 on several of those occasions.

[81] Mr. Basha testified that he did not know and did not meet any of the three males listed as tenants of Unit 232. One of those tenants of Unit 232 was Angelo Lumi who Mr. Basha testified he did not know and would not recognize. He then in cross-examination contradicted this statement upon being shown a photograph of Mr. Lumi who he then acknowledged he did know.

[82] The court notes that the above surveillance over 17 days:

a. Does not observe Mr. Basha attending at the Greek restaurant where he allegedly worked part time;

b. Involves two days or partial days of surveillance at 328 Garden Glen Private where Mr. Basha allegedly resided which do not record he or the Concord being present there on either date; and

c. Involves many instances of Mr. Basha driving the Concord about Ottawa and to particular places, but never to his alleged residence at 328 Garden Gate Private or to the restaurant where he alleges he then worked part-time.

Surveillance Observations

[83] The following OPS surveillance indicates the level of Mr. Basha’s attendance at 790 and at Unit 232 as well as a number of short encounters he had with others on the street or in or at vehicles. The short encounter activity does not include direct observation of drug transfers. The activity during these brief encounters, however are similar to and consistent with the activity during a short drug sale transaction.

May 13, 2014

[84] Police surveillance of Mr. Mohammed observed him parked outside a gymnasium on May 13, 2014 with a plastic bag wrapped around his hand which contained something the size of a brick.

[85] Mr. Mohammed with that bag then enters and sits with Mr. Basha in the front passenger seat of the Concord at 21:09 hours. Police observed the two men passing articles back and forth between one another. The OPS testified that the two men then exited the Concord, high fived one another with Mr. Mohammed appearing to put some rolled up cash into his pocket.

[86] Mr. Basha at 21:17 then carried a similar plastic bag and entered the front passenger seat of another vehicle occupied by another male driver. Police observed those two men looking down towards their laps.

[87] Mr. Basha testified that he knew Mr. Mohammed who had attended the Greek restaurant where he worked. Mr. Basha has no recollection of entering the car of Mr. Mohammed on this occasion.

[88] The OPS’ belief that drugs were exchanged and sold during these two observations is circumstantial, but must be considered along with other surveillance evidence in what are believed or determined to be drug transactions.

[89] The surveillance at 21:09 and 21:17 are however actions consistent with activity during short drug transactions.

June 6, 2014

[90] The OPS conducted seven hours of surveillance of 328 Garden Glen Private, the alleged residence of Mr. Basha, from 16:00 until 23:00 hours, but did not observe Mr. Basha or the Concord at that location.

Thursday, June 12, 2014

[91] The OPS conducted surveillance again at 328 Garden Glen Private at 15:00 hours but did not observe Mr. Basha or the Concord there. After 2.5 hours of surveillance at his alleged residence, the OPS observed the Concord parked at 790 at 19:30 hours where it remains until 01:00 hours on June 13th when surveillance ended.

Friday, June 13, 2014

[92] The Concord was parked at 790 as of 17:00 hours. Mr. Basha departed driving the Concord one hour later, driving in various directions, parks near his parent’s home, continues driving and then parks in a parking lot.

[93] At 19:39 hours a black female then sits in the front passenger seat of the Concord, speaks with Mr. Basha for under one minute and then departs. A male accompanying the black female stands at the Concord driver’s window at the same time and also speaks with Mr. Basha. The black female and the male then walk away.

[94] Mr. Basha testified he had set up this meeting with the black female via internet to view and possibly buy her cellular telephone which she showed him in his car and which he elected to not buy. This is remarkable memory three years later compared to Mr. Basha’s difficulty remembering details about his alleged employment and basement residence.

[95] Mr. Basha and a female exited 790 at 22:46 hours. The woman sat in the front passenger seat of the Concord. Mr. Basha then re-enters 790 which he exits from six minutes later at 22:52 wearing different clothing than he was noted previously wearing shortly before. He then enters into and then departs from 790 in the Concord with the female passenger. The Crown submits Mr. Basha on this evidence clearly had personal clothing located at 790.

[96] Mr. Basha testified that the police recording his change of clothing at 790 is inaccurate as he never changed clothing at Unit 231.

[97] The 19:39 hour short encounter activity is similar to activity in a brief drug transaction.

Wednesday, June 18, 2014

[98] Mr. Basha drove the Concord to, stops at and enters 790 at 14:58. The Concord is followed by a silver Honda, license number BNBH 661, registered to the father of Ms. Niran. The female driver of the Honda parks that vehicle at 790 beside the Concord and then stands bedside it.

[99] Mr. Basha exits 790 carrying a black bag in which there is a rectangular item three minutes after entering that building, approaches the silver Honda, speaks to the female driver of that vehicle and then sits in the Concord’s driver seat. The female driver of the Honda then sits in the Concord’s front passenger seat and Mr. Basha then drives himself and the female in the Concord to and then enters his parent’s home.

[100] Mr. Basha testified that he cannot from the description by police identify who the female was but stated he never brought a female from 790 to his parent’s home. He was unable to indicate whether this is the occasion Ms. Niran testified she attended a BBQ at his parent’s home in the summer of 2014.

[101] Ms. Niran testified she does not remember going to 790 and would not wear a tank top without other upper garments as noted by police.

[102] Ms. Niran admitted her father owns a silver Honda Civic which she occasionally drove. She was shown a copy of a MTO record of her father’s ownership of such a vehicle with license BNBH 661. She confirmed that was his name on the certificate.

[103] The court concludes this female was Ms. Niran. There is no other logical inference given her father’s ownership of that Honda vehicle and their joint attendance thereafter at the home of his parents. Ms. Niran attended at 790.

[104] This is one of a number of contradictions in the evidence of Ms. Niran as will be seen and between her testimony and Mr. Basha.

Thursday, June 19, 2014

[105] The Concord was parked at 790 at 08:30 hours.

[106] Mr. Basha testified that the presence of the Concord this early at 790 would indicate he would have been partying at Unit 232 the night before and must have taken a taxi home due to consumption of alcohol and drugs and would retrieve the Concord the following morning whereupon he would enter Unit 232.

[107] Mr. Basha drove away from 790 in the Concord at 16:40 hours, drives to and then enters a store or shop called Metal Super Market which he then exits from minutes later carrying a thick metal piece, which according the testifying officer, was in the shape of or almost resembled a meat loaf tray, in his hands and then departs in the Concord, drives to and enters a drug store, then drives back to and parks at 790 at 17:27 hours, then exits the Concord and enters 790 at 17:33 hours carrying the metal bar. Mr. Basha exits 790 at 17:49 hours and drives the Concord to and enters his parent’s residence at 18:05.

[108] Mr. Basha testified that the metal bar in his hand that day was to repair the floor of his then 14 year old Concord. If that was the intended use of the metal bar, it is unusual that it would be brought by Mr. Basha into 790 which was allegedly the residence of others where he partied, drank and consumed drugs, as opposed to leaving it in his car or taking it to his alleged home at 328 Garden Glen Private.

[109] Mr. Basha testified that the police testimony that he brought the metal bar into 790 is untrue.

[110] A metal bar which police testified was similar to the one brought into 790 on this date was found in Unit 232 on July 15, 2014 and fits snuggly inside a wooden frame found in Unit 232’s hallway closet which Detective Emery testified could be used to compress drugs.

Friday June 20, 2014

[111] The Concord was parked at 790 at 10:08 hours.

[112] Mr. Basha testified he must have been partying at Unit 232 the previous evening and left his car there overnight as he never slept there.

Tuesday, June 24, 2014

[113] The Concord was parked at 790 at 19:15 hours. Mr. Basha exited 790 at 20:52 hours. He then drove the Concord to an apartment building where he stopped. A black male exited from the apartment building and sat in the front passenger seat of the Concord at 21:09 hours.

[114] Mr. Basha testified that at 21:09 hours, he bought $240.00 of cocaine from this black male which he was consuming at the time at the rate of about 3.5 grams per week.

[115] Mr. Basha then drove to and stopped at a bank, whereupon the black male exited the Concord, enters and then exits the bank four minutes later and resumes sitting in the Concord front passenger seat. Mr. Basha then drives to another address whereupon the other male exits the Concord at 21:13 hours.

[116] Mr. Basha testified that he gave this male $300.00 for his $240.00 purchase of cocaine for his own use and that he drove the black male to the bank to get change to refund Mr. Basha the $60.00 difference. This is a detailed recollection 2.5 years later of paying $300.00 for a $240.00 purchase of cocaine on this date, whereas Mr. Basha has difficulty recollecting many other dates and time periods. It is unusual Mr. Basha as the alleged “purchaser” and a frequent consumer of this drug would not have known the price beforehand and brought the correct amount with him.

[117] The other male’s need or the fact he went into a bank to obtain change in this acknowledged drug transaction is more consistent with Mr. Basha being the vendor and not the purchaser.

[118] Mr. Basha identifies Unit 232 as a place where he and others went during the day and at night to hang out and to consume drugs. Large quantities of cocaine were in Unit 232 on July 15th. I question that Mr. Basha would drive somewhere else to buy cocaine for himself, when Unit 232 contained large quantities of cocaine where he presumably could have purchased that drug. Mr. Basha’s testimony that he was unaware that Unit 232 contained drugs is not credible given the frequency and duration of his presence there and his acknowledged consumption of that drug in that unit.

[119] Mr. Basha at 21:52 hours drove the Concord to and entered a restaurant with a white male who one OPS officer identified as Mr. Lumi, one of the three lessees of Unit 232, who Mr. Basha originally testified he did not know. Mr. Basha, Mr. Lumi and a third male exited the restaurant three minutes later. Police observed Mr. Basha looking at two cellular phones in his pockets. Mr. Basha testified he only had one cellular telephone at a time.

[120] Mr. Basha then drove Mr. Lumi to an address where he stopped. Mr. Basha and Mr. Lumi then talked together in the Concord for some 30 minutes. Mr. Lumi exited the Concord at 23:00 hours. Mr. Basha then departed in the Concord.

[121] Towards the end of his cross-examination, Mr. Basha was shown a photograph of Mr. Lumi. Mr. Basha then acknowledged Mr. Lumi was a well-known person in the community and then admitted that he knew Mr. Lumi, one of the three lessees of Unit 232 which contained large quantities of drugs, scales, acetone, presses and what was believed to be cutting agents.

[122] Mr. Basha’s original testimony that he did not know and would not recognize Mr. Lumi was untrue. Mr. Basha was trying to distance himself from Unit 232 from which drugs were being trafficked.

Wednesday, June 25, 2014

[123] Mr. Basha drove the Concord to 790 at 18:35 hours with Mr. Lumi in the front passenger seat.

[124] At 20:32, Mr. Basha was at the door to Unit 232 carrying a plastic bag with a Kleenex size object in the bag and talked to a male in the doorway of Unit 232.

[125] Mr. Basha exited 790 carrying a small plastic bag containing an object about the size of a deck of cards, departed in the Concord from 790 at 20:56 and drove to and stopped at a store parking lot.

[126] One minute later, a male exited a car which had just arrived and sat in the front Concord passenger seat beside Mr. Basha. That male less than one minute later exited the Concord whereupon Mr. Basha then departed in the Concord.

[127] Mr. Basha testified this male sells exercise body building products and that he had asked and received samples of such products on this occasion.

[128] Mr. Basha then drove to a residential address where he stopped. Between 21:14 and 21:17 hours, Mr. Basha exited the Concord and walked to the open garage door and then gets back into the Concord and departs.

[129] Mr. Basha testified that this is the home of a friend of his but he cannot recall the reason for being there that evening. If this was driving to meet his friend, this was a very short visit.

[130] Mr. Basha arrived back at 790 at 21:35, exits the Concord at 21:41 whereupon he folds a white envelope he is holding and places it in his back pocket and enters 790.

[131] Mr. Basha exits 790 at 22:28 with a small package in his hand and then drives the Concord to and enters his parent’s home for 10 minutes. He then drove to and approaches or enters an apartment building at 22.57 hours and departs therefrom 6 minutes later.

[132] Mr. Basha did not recall being at this apartment building.

[133] The short encounters at 20:56 and 21:14 hours are not dissimilar to the actions during a street level drug sale.

Thursday June 26, 2014

[134] Mr. Basha and the Concord are at 790 at 21:11 hours at which time Mr. Basha meets and speaks with a middle-eastern male parked next to the Concord in the parking lot of 790.

[135] At 21:18 hours, another vehicle pulls into and parks beside the Concord at 790. Mr. Basha talks to the female driver of that vehicle who police identify as Mary Gray. During the next 30 seconds, Mr. Basha removes something from his right pocket and places his hand inside the open window of the vehicle driven by this female. The female then drives away from 790.

[136] Mr. Basha testified he does not recall this meeting and does not know a Mary Gray.

[137] At 21:22 hours, Mr. Basha drives the Concord away from 790 to a sports center where he stops, exits the Concord at 21:38, walks to the door to the sports center. One minute later, Mr. Basha comes back into that parking lot and walks to the open passenger window of an orange Pontiac which had just arrived. Mr. Basha places his hand inside the Pontiac passenger window at 21:40, gives something to and receives an object from the Pontiac driver which Mr. Basha places inside his coat pocket. The Pontiac then departs and Mr. Basha re-enters the sports center.

[138] Mr. Basha had no recollection of this meeting but stated a friend of his owns a vehicle of that description. He has no recollection as to what items were exchanged with the driver of this orange vehicle on this occasion.

[139] At 21:44, Mr. Basha and Ms. Niran are seated together on an outdoor bench at this same sports center. Minutes later they exit the sports center together, she carrying a sports bag and then enter and depart in the Concord.

[140] Mr. Basha testified that this was not Ms. Niran because it would be unusual to pick her up at this gym during the summer of 2014. Ms. Niran however testified she did not go to a gym and did not go to or enter 790. She would have the court believe the OPS are now making up false identification evidence about her.

[141] Mr. Basha then drove to 790 which, according to police, he and Ms. Niran then enter at 22:35. Police surveillance inside 790 records them taking the stairs up to the 2nd floor with Ms. Niran carrying a sports gym bag. Mr. Basha then used a key to enter into Unit 232. Ms. Niran denied ever being at Unit 232.

[142] Mr. Basha testified he did not have a key to Unit 232 and that the door to Unit 232 on this occasion must have been unlocked. Mr. Basha’s denial of having a key to Unit 232 then changed during his later cross-examination when he admitted he sometimes took a key to Unit 232 to re-enter later.

[143] The actions at 21:18 and 21:40 hours are similar to the actions of a short street drug sale.

Friday June 27, 2014

[144] The Concord is parked at 790 at 14:00 hours. It departs 790 21 minutes later.

[145] At 21:39, Mr. Basha stops the Concord at 20 Robinson Ave. A white male comes to the Concord’s open driver’s window, places his hand inside that window, removes that hand, looks at that opened hand and then places that hand into his pocket. That male and the Concord then each depart after this 1 minute encounter.

[146] Mr. Basha testified that he remembered this event. He stated he went to 20 Robinson to sell a cellular phone to a male who had previously offered to buy it.

[147] At 22:00 hours, the Concord is parked on another street. A white male walks to the Concord’s driver’s door with money in his hand, then places that hand with the money inside the Concord driver’s window, then removes that hand 5 seconds later from the Concord holding an item the size of a ½ deck of playing cards and then walks away from the Concord.

[148] Mr. Basha testified this observation of another male placing his hand containing money into the Concord’s driver window is untrue.

[149] The actions at 21:39 and 22:00 hours are similar to the actions during a short street drug sale.

Tuesday, July 3, 2014

[150] Mr. Basha drove the Concord to and parks at 790 at 20:21 hours. He and a male passenger exit the Concord and enter 790.

[151] At 21:14, Mr. Basha exits 790 and together with 2 other males go to the Back Jeep. One of the other males removes something from the Jeep and gives it to Mr. Basha who then places it deep inside the trunk of the Concord in what appeared to be under the spare tire. Mr. Basha and the two males then enter 790.

[152] Mr. Basha testified that he placed nothing under his trunk carpet and there was no reason to do so.

[153] At 21:17, Mr. Basha drove the Concord and departs 790. He drives to and parks beside a trailer in a trailer lot, walks to a trailer at 21:37, returns and departs in the Concord at 21:40.

[154] Mr. Basha testified that he bought a BlackBerry phone from the man and woman occupying this trailer and paid them between $350 to $400.

[155] Mr. Basha is involved in an unusual number of cell phone purchases and sales in a short time period.

[156] At 22:53, Mr. Basha departed 790 in the Concord and enters his parent’s home where he remains for some 40 minutes. He drives back to 790 at 23:44 hours. Mr. Basha thereupon unlocks the Black Jeep parked next to the Concord and removes a shaving kit size package which he then placed in the trunk of the Concord.

[157] At 23:48, a white male exits 790, unlocks the Concord, removes a box in a plastic bag via the passenger door, locks the Concord and re-enters 790.

[158] Mr. Basha is observed smoking on the outside balcony of Unit 232 with 2 other males at 01:04 hours.

[159] July 3, 2014, is the first surveillance note of the Black Jeep.

[160] The actions at 21:17 hours are consistent with the actions of a short street drug sale.

Saturday, July 5, 2014

[161] Mr. Basha drove the Concord to and enters 790 at 17:12 hours with another male.

[162] A male and female exit 790 and depart in the Black Jeep parked beside the Concord at 17:14.

[163] Mr. Basha and another male depart 790 in the Concord at 17:20. He drives to his parent’s home which he enters and departs from approximately 90 minutes later with a white male at 18:57. They enter the Concord which Mr. Basha drives to 790. Mr. Basha and the white male proceed to the door of 790 which is held open by another male at 19:03.

[164] Mr. Basha and the white male depart 790 in the Concord at 21:10 and drive to a location where they meet with the same orange Pontiac observed on June 26. Mr. Basha exits the Concord, walks to the driver’s window of the Pontiac and using his left hand, removes something from his left pocket and gives something to the Pontiac driver; Mr. Basha then drives to his parent’s home whereupon the male passenger enters that home.

[165] The actions at 21:10 hours are similar to the actions during a short drug transaction.

Wednesday, July 9, 2014

[166] The Concord is parked at 790 at 09:11 hours.

[167] At 15:08 hours, a silver Jeep parks at 790 with the driver appearing to be waiting for someone.

[168] Mr. Basha and a black female exit 790 together at 15:10. Mr. Basha is carrying a white grocery bag which appears to have something in it. They both then proceed to and sit in the Concord. The black female sits in the Concord passenger seat and then appears to place something into her purse. The female exits the Concord and sits in the front passenger seat of the silver Jeep. The silver Jeep with the black female then departs 790 by 15:13.

[169] Mr. Basha could not recall this meeting with the black female.

[170] At 15:13 hours, Mr. Basha unlocks the back hatch of the Black Jeep parked beside the Concord, reaches in and removes a “ziplock” style plastic bag which he carries to, enters and then departs in the Concord.

[171] Mr. Basha testified that the only things he ever removed from the Jeep was fishing equipment. He stated he and Mr. Dokaj occasionally went fishing together.

[172] The actions at 15:10 hours are consistent with the actions during a short drug transaction.

Thursday, July 10, 2014

[173] The Concord is parked at 790 at 09:00 hours.

[174] At 12:08, the silver Jeep present at 790 on July 9, is parked at 790. A black female exits the silver Jeep and walks to the rear door of 790 where she is met by Mr. Basha who hands her an item. The black female then hands something to Mr. Basha who thereupon goes back inside 790. The black woman returns to and departs in the silver Jeep.

[175] The actions at 12:08 are similar to the actions during a short drug transaction.

Tuesday, July 15, 2014

[176] At 16:18 hours, Mr. Basha exits 790 carrying a red and black bag, accompanied by Mr. Dokaj. Mr. Basha places the bag in the trunk of the Concord as Mr. Dokaj according to police is looking around “hard”, as if to see if anyone else is watching. Both men enter the Concord which according to police Mr. Basha drives away departing 790.

[177] Mr. Basha testified that the red and black bag contained two shirts that he had bought that day. There is no evidence why Mr. Basha following that purchase would have brought such shirts into and then out of 790 that same day.

[178] Mr. Basha, accompanied by Mr. Dokaj, drives to and stops at a group of mailboxes at 16:45 hours whereupon a black male standing across the street, approaches and then sits in the back seat of the Concord. Mr. Basha then looked down at his lap. The black male then exited the Concord at 16:47. Mr. Basha then departed driving the Concord with Mr. Dokaj as the passenger.

[179] Mr. Basha testified he purchased 5 grams of cocaine for his personal use for $300.00 from this male at this mailbox encounter.

[180] The OPS arrested Messrs. Basha and Dokaj in the Concord following this mail box cocaine sale. Mr. Basha had 5.4 grams of cocaine in his clothing at the time. Mr Dokaj had no drugs on him at the time of this arrest.

[181] At the time of his arrest, Mr. Basha had a wallet in his pocket, as well as ten $20.00 bills in his pocket outside his wallet.

[182] Mr. Basha had one cellular phone in his pocket upon this arrest. There was a second phone on the driver’s side floor of the Concord which continued to signal receipt of messages as the arrest proceeded. Mr. Dokaj had two cellular phones on his person which did not signal receipt of messages during his arrest.

[183] There were two quantities totalling 78.5 grams of cocaine in the Concord trunk wheel well upon the arrest of the accused.

[184] Mr. Basha testified that the Concord wheel well cocaine was not his. Lack of personal ownership is not determinative of knowledge and control of those drugs.

[185] Mr. Basha testified that on July 15, 2014, the OPS did not tell him they located 78.5 grams of cocaine in the Concord trunk wheel well and he never learned of that allegation until receipt of police disclosure six months later. Mr. Basha did not testify there were no drugs in his trunk at the time or that the OPS planted drugs there.

Summary Of Surveillance

[186] The OPS 17 days of surveillance observed:

a. Mr. Basha entering, exiting or at 790 on 12 of those dates (June 13, 18, 19, 24, 25, 26, 27, July 3, 5, 9, 10 and 15, 2014);

b. Mr. Basha entering and inside Unit 232 on two of those dates (June 26 and July 3, 2014);

c. The Concord parked at 790 on two additional dates (June 12 and 20, 2014); and

d. Fourteen short encounters with others involving activity consistent with activity during a short drug sale and purchase, two of which Mr. Basha testified were his alleged purchase of drugs. (May 13, June 13, 24, 25, 26, 27 July 3, 5, 9, 10 and 15, 2014).

[187] Mr. Basha testified to non-drug related activity regarding 5 of the short encounters such as buying and selling a cellular phone, getting exercise supplement samples, to meet a friend and two drug purchases allegedly by him. He had no explanation for the other observed short encounters on May 13, June 24, 26, 27 and July 5, 9 and 10, 2014, or denied the event occurred.

Mr. Basha and Ms. Niran

[188] Ms. Niran’s testimony in-chief primarily addressed:

a. the level of force the OPS used to arrest Mr. Basha on September 4, 2014;

b. that the OPS upon her arrest on September 4, 2014 acted disrespectively towards her and took $720.00 out of her purse which they subsequently denied any knowledge of; and

c. the nature of her relationship to Mr. Basha in the summer of 2014;

[189] An issue arose during the testimony of Ms. Niran and Mr. Basha regarding the nature and extent of their relationship. Their testimony about that was contradictory and negatively impacts their credibility.

[190] Ms. Niran testified that:

a. She met Mr. Basha in January, 2014;

b. She and Mr. Basha saw one another two to three times per week until their arrest on September, 2014. They were friends during this period, they went out on dates, were headed towards dating one another but were not dating;

c. She and Mr. Basha were becoming romantically involved in the summer of 2014 when he brought her to a BBQ at his parent’s home;

d. That romantic relationship stopped after their arrest on September 4, 2014;

e. They only communicated via text message or saw one another once or twice per month after their September 4, 2014 arrest but remained friends;

f. Mr. Basha never told her he had been arrested on July 15, 2014 as to the drugs found that date in Unit 232;

g. She does not know Mr. Dokaj and had never met Ms. Ismhali;

h. She had never been inside Unit 232;

i. Mr. Basha after September 4, 2014 did not tell her he was engaged or was expecting a baby;

j. She attended a party at the home of Mr. Basha’s sister who later posted a picture of that event and a text message that her brother, Mr. Basha, had got married and she really liked his wife. The picture of this occasion shows Mr. Basha and Ms. Niran sitting together, as well as Mr. Basha’s parents and two sisters;

k. Ms. Niran admitted that the above picture made it appear as if she was married to Mr. Basha at this event but that was not true and stated another woman who was present but not in the picture was his then new wife who was expecting the birth of their child.

[191] Mr. Basha in contrast testified that:

a. His affidavit on his s. 11(b) Charter Application in this proceeding states he was then married to Ms. Niran and that they were expecting a child. He testified that they were not then legally married;

b. He acknowledged that a September 2, 2016 $6,000 invoice for the rental of a hall for a reception to be catered for 140 guests, with a head table and a gift table was booked by he and Ms. Niran. He admitted it looked like a wedding reception but initially stated that was not the case and it was only a dinner dance;

c. He then stated he was certain at that time of that reception that Ms. Niran was expecting his child and this dinner was something he had to do with Ms. Niran to protect her reputation in her culture;

d. He and Ms. Niran “pretended” at this dinner reception that this was their wedding;

e. He introduced Ms. Niran at this dinner reception as his wife; and

f. He believed Ms. Niran was expecting the birth of their child at the end of April 2017.

[192] Mr. Basha initially, until confronted with the reception invoice, and Ms. Niran, were not being honest in their testimony regarding their relationship.

September 4, 2014

[193] The OPS on September 4, 2014 arrested and charged Mr. Basha and Mr. Dokaj jointly with counts 1 to 10 and 12, namely as to the drugs and gun seized and proceeds of crime on July 15, 2014.

[194] Ms. Niran testified she and Mr. Basha drove to a restaurant on September 4, 2014. She said they were being followed by two black cars which had tinted windows. She said Mr. Basha drove into a side street, stopped and then yelled at the black vehicles which stopped, “Can I help you?” They then drove to the restaurant.

[195] OPS officers on September 4 approached Mr. Basha and Ms. Niran as they were about to enter the restaurant. One officer called to Mr. Basha who thereupon brushed aside Ms. Niran, fled into the restaurant and was pursued by police. As he ran inside the restaurant Mr. Basha reached into his pocket and then threw away a package. The package contained 1.6 grams of cocaine. He was thereupon physically arrested, placed in hand cuffs and charged.

[196] One of the arresting officers pushed Ms. Niran back from the area where police physically arrested and cuffed Mr. Basha.

[197] Mr. Basha alleges that the OPS on September 4, 2014 used excessive force in arresting him and caused him physical injury when they kicked, punched and jumped on him after he had signalled his surrender by raising his hands in the restaurant and descending to his knees.

[198] Ms. Niran corroborated the testimony of Mr. Basha that he was repeatedly struck upon being arrested in the restaurant on September 4, 2014.

[199] Ms. Niran testified that the OPS at the time of arresting Mr. Basha on September 4, 2014, physically pushed her, ridiculed her, seized and retained $720.00 from her purse and falsely charged her with possession of a small quantity of marihuana allegedly in her purse. That charge was later withdrawn.

[200] The above allegations of Mr. Basha and Ms. Niran are concerning and if true, may represent excessive force and inappropriate police conduct. This remains however a trial of the charged events on July 15, 2014 against Mr. Basha and Mr. Dokaj as Mr. Basha pled guilty to count 14.

[201] No Charter relief was sought as to the manner of arrest on September 4, 2014 regarding these charges as to the events of July 15, 2014.

[202] Officers Smith, Waldron and Pulford were challenged in cross-examination as to the degree of Mr. Basha’s submission, the level of force they used in arresting him and their conduct towards Ms. Niran on September 4, 2014. The officers testified that they did not use excessive force in arresting Mr. Basha who attempted to flee in response to calling his name and then would not produce his hands to be cuffed.

[203] The court has reviewed the contradictions in testimony as to the level of force used in arresting Mr. Basha on this occasion in assessing credibility.

[204] The restaurant owner was not called as a witness as to whether there were other internal restaurant video recordings and if so, what happened to those recordings which may or may not have recorded the physical arrest of Mr. Basha.

[205] I do not doubt that Mr. Basha received a bruise to his abdomen during his September 4, 2014 arrest, as evidenced in a photograph he introduced.

[206] He testified he eventually stopped running in the restaurant after he had thrown away the package of cocaine in his pocket. He testified he then knelt down and raised his arms. His arms appeared raised in the video as he ran past the restaurant camera as he ran away from police.

[207] The repeating beating Mr. Basha and Ms. Niran testified he received on September 4th is doubtful given the short length of the restaurant video during which Mr. Basha stopped fleeing from police, was arrested and led from the restaurant. The video recording shows the passage of 37 seconds between Mr. Basha running past the camera away from the police and his return on the video, hand cuffed and being led out of the restaurant by police.

[208] The fact Mr. Basha raised his hands as he ran away from police does not address the subsequent events of whether he resisted during the subsequent struggle as he lay on the floor to produce his hands to be cuffed.

[209] Detective Smith testified that:

a. he called out and told Mr. Basha he was under arrest as the OPS with guns drawn ran after him into the restaurant but Mr. Basha continued to run until he threw away the bag of cocaine, ran out of space and then raised his arms. Mr. Basha does not dispute these facts. He and this officer admit he eventually raised his hands;

b. Mr. Basha then refused his command to get on the floor, so he threw him to the floor which could have caused him injury. This is a contradiction as Mr. Basha states he voluntarily knelt down on his own volition with raised arms;

c. Mr. Basha then crossed his arms under himself lying on the floor to avoid access for cuffing and the officer then leaning against him on the ground struggled to get access to his arms for cuffing;

d. A second officer was also on the ground helping him;

e. He and this second officer did not kick or use their fists to strike Mr. Basha during this arrest.

[210] Detective Waldron testified:

a. As he approached, Mr. Basha was lying on his stomach on the floor and was resisting freeing his arms from under his body to be cuffed;

b. He lay down on Mr. Basha and struggled with Detective Smith to overcome Mr. Basha’s resistance to produce his arms for cuffing;

c. He did not kick or strike Mr. Basha, and

d. Maybe Detective Smith may have struck Mr. Basha as they tried to access his arms for cuffing, as police commonly use a distracting strike against someone who is resisting arrest.

[211] Officer Pulford testified he saw no kicking or hand strikes to Mr. Basha during this arrest and that his focus was controlling the situation with his gun drawn and directing and once pushing Ms. Niran away from the arrest of Mr. Basha.

[212] It would be surprising for Mr. Basha to run away from police with vests on and guns drawn and to then kneel on the floor without being asked to.

[213] It is quite possible Mr. Basha was bruised and may have been cut as police forced him to lay on the floor and struggled to place him in handcuffs behind his back. Detectives Smith and Waldron admit they used material physical force in arresting Mr. Basha.

[214] Mr. Basha and Ms. Niran each have serious credibility issues on other matters.

[215] The court concludes Detective Smith, contrary to his testimony, struck Mr. Basha as he and Detective Waldron lay on him and struggled to release his arms for cuffing.

[216] Detective Smith on July 15, 2014, participated in the arrest of Mr. Basha in the Concord. He took the keys from that vehicle which opened the front and side doors at 790 and the parent’s home. He took those keys to the officers searching Unit 232 but then returned to and searched the parent’s home. The point is that Detective Smith did not search and find the drugs in the Concord trunk, in the bedrooms in Unit 232 or the weapon on July 15, which are the subjects of this trial.

[217] The medical records record Mr. Basha’s injury and limitations prior to July 15, 2014. He was not attending work regularly prior to July 15. Mr. Basha is being untruthful in alleging the physical altercation and blows by police during his 37 second arrest on September 4, 2014 caused the impairment he now complains of.

[218] Mr. Basha resisted producing his hands for cuffing.

Legal Analysis

Possession

[219] Mr. Basha and Mr. Dokaj are charged under s. 5(2) of the Act with possession of cocaine under count 1 and possession of crack cocaine under count 2 for the purpose of trafficking contrary to ss. 5(3)(a) of the Act.

[220] The essential elements of counts 1 and 2 are that:

a. the accused was in possession of the substance;

b. the substance was that alleged drug;

c. the accused knew the substance was that drug; and

d. the accused had possession of that drug for the purpose of trafficking.

[221] Identification of the substances as cocaine and crack cocaine is not in issue.

[222] Possession is defined by s. 4(3) of the Code as follows:

4(3) 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.

[223] Possession under s. 4(3) of the Code includes personal possession as outlined in s. 4(3)(a), constructive possession as outlined s. 4(3)(a)(i) and s.4(3)(a)(ii) and joint possession as defined in s. 4(3)(b): R. v. Pham (2005) 204 0.A.C. 299, para 14 and R. v. Morelli 2010 SCC 8, [2010] 1 S.C.R. 253, para 15.

Knowledge

[224] Knowledge as to personal possession under s. 4(3)(a) of the Code requires the establishment of two requisite elements, namely:

a. The accused must be aware that he or she has physical custody of the thing; and

b. The accused must be aware as well of what the thing is: Morelli, para 15.

[225] 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.) 485, para 8; R. v. Anderson, 1995 CanLII 1338 (BC CA), [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

[226] Constructive possession of the drugs requires knowledge which extends beyond mere quiescent knowledge and discloses some measure of control over the item possessed: R. v. Pham, (2005) 204 0.A.C. 299, para 15.

[227] 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.

[228] Constructive possession does not involve having physical custody of a thing. Such possession is established where an accused has the thing in actual possession or custody of another person, or in any place, whether or not belonging to or occupied by the accused, for the benefit of the accused or someone else: R. v. Bains, 2015 ONCA 677, para 156 and Morelli, para 17.

[229] That necessity of some measure of control in the case of constructive possession does not require that the accused in fact exercised control over the object. Such control includes and is established if the accused had the right to grant or withhold consent, for instance as to drugs being stored in a place. It is not necessary that the consent in fact be granted or withheld: R. v. Savory, 1996 CanLII 2001 (ON CA), [1996] O.J. No. 3811 (O.C.A.) paras 6 and 7.

Joint Possession

[230] Joint possession pursuant to s. 4(3)(b) of the Code requires there must be knowledge, consent and some measure of control on the part of the person deemed to be in possession: Pham, para 16; R. v. Terrence, 1983 CanLII 51 (SCC), [1983] 1 S.C.R. 357 (S.C.C); R. v. Williams (1998), 1998 CanLII 2557 (ON CA), 40 O.R. (3d) 301 (C.A.); R. v. Barreau, 1991 CanLII 241 (BC CA), 9 B.C.A.C. 290,19 W.A.C. 290 (B.C.C.A.) and Re: Chambers and the Queen (1985) 1985 CanLII 169 (ON CA), 20 C.C.C. (3d) 440 (Ont. C.A.).

Circumstantial Evidence and Drawing Inferences

[231] Circumstantial evidence may support an inference of the requisite knowledge; such as the finding of narcotics in plain view in a common area of the residence, the presence of a scale in a bedroom apparently occupied by the accused and the accused’s apparent occupation of the premises may serve to found an inference of the requisite knowledge: Pham, para 17.

[232] 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) (0nt. C.A.) at 488; R. v. Anderson, 1995 CanLII 1338 (BC CA), [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.

[233] 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) 0.A.C. 161, para 52.

Drug Value

[234] The retail value of the drugs is relevant to:

a. Whether the person had knowledge of the substance itself: R. v. McIntosh [2003] O.T.C 246 (ONT. S.C.) , para 45; R. v. Fredericks, [1999] O.J. No. 5549 (ONT. C.A.) para 3-4; and

b. Whether the accused had knowledge the substance was a narcotic: Mcintosh, para 45 and R v. Blondin (1970), 1970 CanLII 1006 (BC CA), 2 C.C.C. (2d) 118 (B.C.C.A.) para 2I (affd. 1971 CanLII 1411 (SCC), [1971] S.CJ. No. 42, 4 C.C.C. (2d) 566 (S.C.C).

WD Analysis

[235] The principles in W.D. provide that:

a) If the court believes the evidence of the accused that he did not commit the offence, the accused must be acquitted of that charge;

b) If the court after considering all the evidence is unable to decide whom to believe, the Crown will have failed to prove quilt beyond a reasonable doubt in which case the accused must be acquitted;

c) Even if the evidence of the accused is not believed, the accused must be acquitted if his evidence leaves the court with a reasonable doubt as to the commission of the alleged crime or an essential element therein; and

d) Even if the accused’s evidence does not leave the court with a reasonable doubt as to guilt or an essential element of the offence, the accused is to be acquitted unless the balance of the evidence accepted proves guilt beyond a reasonable doubt: R. v. W.(D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742, paras. 27 and 28.

[236] The W.D. evaluation of evidence:

a) Is not to be applied piecemeal to individual items or categories of evidence: R. v. Menard, [1989] 2 S.C.R. 109;

b) Does not require that the facts are to be examined separately as to the criminal standard of proof. Each fact need not be proven by the Crown to that criminal standard: R. v. Morin, 1988 CanLII 8 (SCC), [1988] 2 S.C.R. 345;

c) Regarding the evidence of the defence, namely the testimony of the accused, the question is whether his testimony considered in the context of the whole of the evidence raises a reasonable doubt: R. v. Dinardo, 2008 SCC 24, [2008] 1 S.C.R. 788;

d) In conducting the W.D. analysis, the central question is whether, based on all of the evidence, the trier of fact is left with a reasonable doubt about the guilt of the accused: R. v. Y. (C.L.), 2008 SCC 2, [2008] 1 S.C.R. 5.

Cocaine in Concord

[237] The court finds that Mr. Basha had knowledge, control and possession of the 78.5 grams of cocaine in the wheel well of his Concord and the 5.4 grams of that drug inside his clothing on July 15, 2014.

[238] Mr. Basha admits going to Unit 232 regularly, hanging out there and consuming drugs there.

[239] Mr. Basha had and was seen using the keys to 790 during periods of the surveillance and had a key to 790 and Unit 232 on July 15, 2014 when a large quantity of cocaine was stored in Unit 232.

[240] The surveillance evidence indicates he was the owner and only driver of the Concord on the dates observed including July 15, 2014.

[241] He was observed placing articles in and out of the Concord and it’s trunk during the period of surveillance. He had cocaine on his person on July 15, 2014 and on September 4, 2014 when he also drove the Concord.

[242] Mr. Basha conducted short encounters lasting less than a minute or two with other individuals on June 24, 25, 26 and 27 as well as July 3, 9, 10 and 15, 2014. Omitting the dates Mr. Basha testified were not drug related, the other brief encounters on the evidence of Detective Emery logically are consistent with brief drug sale transactions.

[243] Mr. Basha’s testimony:

a. In first denying he had a key to Unit 232, versus his final acknowledgement that he had such a key “occasionally”;

b. in repeatedly stating he did not know and could not recognize Mr. Lumi and then finally admitting he knew and met with this person;

c. he only had one cellular telephone is contradicted by the second telephone which repeatedly announced messages being received located at his feet as he drove the Concord and was arrested on July 15, 2014 and police observing him having more than one cellular phone on other occasions;

d. his reluctance to admit until presented in cross-examination with the hall rental bill containing details of the event, that the September, 2016 reception was not simply a dinner party as he had testified, but was the performance of or presentation by he and Ms. Niran of their marriage to 140 invited guests;

e. That his purchase of a thick rectangular metal bar which snuggly fits inside a wooden frame inside Unit 232 and his bringing that bar into 790, defies his testimony that the purpose thereof was to repair the rusted floor of the Concord;

are all examples of his evasiveness and his misstatement of the facts which impair his overall credibility.

[244] I reject Mr. Basha’s testimony that he had no knowledge or control regarding the 78.5 grams of cocaine inside the wheel well of the Concord on July 15, 2014. It was intentionally hidden behind the trunk carpet wall of the vehicle he owned and which he and no one else drove during the 17 days of surveillance.

[245] To the extent that other persons related to Unit 232 may have owned some or all of the cocaine in the Concord trunk, they had no need, with two locked safes in that apartment, to hide drugs in the Concord without the knowledge of Mr. Basha. Any other owners of the 78.5 grams of cocaine in the Concord trunk on July 15, 2014 would have only released that valuable asset to a trusted colleague like Mr. Basha.

[246] He had knowledge, control and possession of that vehicle and the cocaine in its wheel well.

[247] Mr. Basha on the evidence was not attending work daily or regularly during the June and until the July 15th surveillance period, where he in any event only earned a minimum wage plus tips. His July, 2014 bank balance statement located on July 15th, addressed to him at his parent’s home, indicated a credit balance of $15. His credit card statement found in Bedroom #4 on July 15th and addressed to him at Garden Glen Private indicated a debit balance of $986. He at the time owned a 14 year old car.

[248] The above facts and the opinion evidence of Detective Emery as to the limited quantity of cocaine normally owned by cocaine users for personal consumption leads me to conclude that the 78.5 grams of cocaine in the Concord wheel well, with a street value of some $7.7K was in the possession of Mr. Basha on July 15, 2014 for trafficking. The quantity and value of that wheel well cocaine combined with his then apparent limited financial circumstances reinforces that this trunk cocaine was to be trafficked and was not for Mr. Basha’s personal consumption.

[249] There is no other logical inference on the evidence as to the above conclusions that the Concord trunk cocaine was to be trafficked and that Mr. Basha had possession thereof for that intended purpose.

[250] I arrive at this conclusion incorporating the four factors in W.D.

EVIDENCE OF TRAFFICKING

[251] Mr. Basha admitted that the July 15, 2014 mailbox meeting just prior to his arrest that day was a cocaine sale-purchase transaction.

[252] Mr. Basha’s testimony that the short July 15, 2014 mailbox meeting was for his purchase of the 5.4 grams of cocaine in his pocket upon his arrest that day and not his sale of drugs to the person he met briefly lacks credibility. As previously mentioned, he had no reason to leave Unit 232 where he was a trusted person and frequent consumer of that drug, which unit contained large quantities of cocaine and to go elsewhere to buy this quantity of cocaine. This is reinforced by the 78.5 grams of cocaine in his trunk this same day, the purpose of which was to be trafficked.

[253] Detective Emery gave ranges for the street cost of cocaine and crack. He testified the price a purchaser pays is dependent upon:

a. The quantity purchased; and

b. The relationship between the vendor and purchaser.

[254] Given Mr. Basha’s frequent attendance at Unit 232, he at a minimum had a good relationship with the tenants of and anyone else living there. That good relationship meant he would pay a lower rather than a higher price at Unit 232 for any drugs he purchased for personal consumption. He had no need or financial incentive to buy elsewhere which is why the July 15, 2014 mailbox meeting was his sale and not his purchase of drugs.

[255] One of the principle purposes of a male’s wallet is to hold monetary bills. Mr. Basha however on July 15, 2014 had $200.00 outside of this wallet in his clothing immediately after a drug transaction during this short encounter.

[256] The street value of the 5.4 grams of cocaine in his pockets at the time of his arrest immediately after this acknowledged July 15, 2014 drug transaction had an approximate value of $530.00. The then restricted financial circumstances of Mr. Basha at this time logically would not have permitted him to make such a drug purchase for his own consumption, plus have an additional $200.00 on his person, in addition to any money then in his wallet.

[257] The court concludes on all the evidence that Mr. Basha on this acknowledged cocaine sale transaction on July 15, 2014 was the vendor of drugs and that he did not then purchase the 5.4 grams of cocaine found in his pockets moments later on his arrest. Mr. Basha’s testimony that he was the purchaser and not the vendor in this transaction is not credible.

[258] Given his limited attendance at work, if at all, during the 17 days of surveillance over a period of just under two months, the quantity and value of cocaine in the Concord and Unit 232 where he spent considerable time and the number of his short street meetings at the door of or just outside 790 and elsewhere, leads this court to infer that Mr. Basha sold or delivered drugs on the following brief encounters as to which Mr. Basha had no explanation, namely:

Date Hour

a. June 24, 2014 21:09;

b. June 26, 2014 21:18 and 21:40;

c. June 27, 2014 21:39 and 22:00;

d. July 5, 21:40 21:10;

e. July 9, 2014 15:10;

f. July 10, 2014 12:08

[259] No other inference as to these other occasions of trafficking is reasonable given the events on those dates, the repeated nature of such short encounters, the quantity of cocaine on the Concord trunk and drugs in Unit 232 where Mr. Basha regularly attended and all the evidence.

[260] In arriving at the above analysis, the court has conducted the WD analysis as to Mr. Basha’s denial that he had no knowledge and possession of the Concord wheel well cocaine.

[261] The court on all of the above evidence cited finds Mr. Basha guilty of count 1 as to the cocaine in the Concord trunk on July 15, 2014, the mailbox drug sale just prior to that arrest and the above listed short drug sales encounters.

Cocaine and Crack Cocaine Inside Unit 232

[262] The presence of cocaine and crack cocaine for trafficking out of Unit 232 as of July 15, 2014 is clear given:

a. the quantities contained therein versus the typical quantities possessed for personal use;

b. the values thereof;

c. the presence and quantity of drug related equipment such as scales, presses, masks and apparent mixing agents;

d. the presence of a weapon typical to the protection of those assets against theft; and

e. the several short encounters observed between Mr. Basha and others at the door of and in the parking lot of 790.

[263] Mr. Basha testified that Unit 232 was used and known by him as a drug consumption site. Each drug consumer in attendance and consuming at Unit 232, including Mr. Basha, needed a supplier and vendor of the drugs consumed.

[264] The owner(s) and handlers of the drugs in Unit 232 given the quantities inside its two bedroom closets, based on logic and the evidence of Detective Emery, knew that the larger quantities of cocaine and crack cocaine in Unit 232, being 317 grams of cocaine and the 20 grams of crack with a combined average street value of some $33,000, were to be sold and were not for personal consumption.

[265] I accept the evidence of Detective Emery and the case law that the owners of drugs of this quantity and value protect such assets and restrict access thereto to co-owners, co-workers and/or trusted individuals: R. v. Duong, 2007 BCCA 227, para 38, R. v. To, 1992 CanLII 913 (BC CA), [1992] 16 B.C.A.C. 223, para 40 and R. v. Stevoic [2011] BCJ No. 349, para 93 (B.C.P.C.), (aff’d) [2011] B.C.J. 2151, para 39 (B.C.A.C.).

[266] Mr. Basha’s:

a. regular attendance in Unit 232 to “hang out”;

b. his alleged addiction and use of cocaine at Unit 232;

c. his key access to 790 and Unit 232;

d. his final acknowledgment that he knew one of the tenants of that unit and his observed attendance with Mr. Lumi outside that unit;

e. the 78.5 grams of cocaine in his trunk; and

f. his sale of cocaine on June 24, 26, 27, July 5, 9, 10 and 15, 2014.

contradicts the credibility of his testimony that he had no knowledge that Unit 232 contained drugs or the trafficking thereof from that unit. All the evidence infer the exact opposite conclusion. Mr. Basha’s denial of that knowledge defies logic and is untrue.

[267] Courts as to the element of control in a case like this have held that control need not be exclusive. Control is established:

a. if there is evidence the accused had substantial control which may be inferred from the free access to the drugs present: Stevoic, para 95 and R. v. Munif [2009] B.C.J. No. 2173 paras 7 and 13 (B.C.A.C.); or

b. at least evidence the accused jointly operated the trafficking scheme: R. v. Pham, 92005) O.J., para 25 (h). (Ont. C. A.)

[268] Mr. Basha’s frequent attendance at 790 and in Unit 232 during the day with keys to the building, to Unit 232, to the safe in Bedroom #4 and his sale and possession of drugs for sale evidence that he had that high level of trust in relation to the drugs in Unit 232.

[269] Mr. Basha testified he was unaware that Unit 232 contained drugs found in Bedrooms #3 and Bedroom #4 on July 15, 2014. That testimony is not credible given:

a. The quantity and value of drugs in Unit 232 at the time together with equipment used in drug mixing, pressing and trafficking;

b. His possession of keys to 790, to Unit 232 and to the closet safe in Bedroom #4;

c. His frequent attendance at Unit 232 to hang out and where he consumed drugs;

d. The 78.5 grams of cocaine in his vehicle and the 5.4 grams of cocaine in his pocket on July 15, 2014;

e. The police surveillance observing Mr. Basha involved in frequent brief encounters with others in his car, at the car door of others, at 790 and at other locations; and

f. His prior drug marketing experience and therefore knowledge of drug marketing, as reflected in his testimony in-chief that he was convicted in 2012 of two charges of possession to traffic drugs. Someone with experience in drug trafficking knows that the drug supplier of those marketing activities keeps a drug supply somewhere.

[270] To be clear, evidence of those two prior convictions relates only to Mr. Basha’s credibility as to what he knew was occurring in Unit 232 on July 15, 2014. Those convictions are not evidence as to whether Mr. Basha is guilty of the charges in this case: R. v. Morris, 1978 CanLII 168 (SCC), [1979] 1 S.C.R. 405 and R. v. D’Aoust (1902) 5 C.C.C. (3rd) 221 (Ont. C. A.). It simply is evidence of having some knowledge about illicit drug marketing.

[271] The evidence is not conclusive that Mr. Basha’s principle residence was at Unit 232 on July 15, 2014. The documentary evidence from MTO and service providers and the testimony of Ms. Niran confirm his testimony that he had a basement room at Garden Glen Private as of July, 2014. The OPS during the considerable surveillance conducted however never observed him or the Concord at or travelling to or from that Glen Private location.

[272] I strongly doubt that a self-admitted cocaine addict at the time who consumed drugs and alcohol to the point of intoxication at Unit 232 was always prudent and lawfully compliant enough at 29 years old to always leave the Concord at 790 overnight and get a ride to Garden Glen Private. The Concord was parked at 790 between 08:30 and 09:11 hours on three dates during the surveillance.

[273] Mr. Basha testified that he understood that another unidentified male resided in Unit 232. There was male and female clothing as well as Ms. Ismhali’s passport and documentation in Bedroom #3 thus suggesting she shared that bedroom with another male.

[274] Bedroom #4 contained male clothing and the documents of Mr. Basha. Police observed Mr. Basha on one surveillance date attending, entering and then exiting 790 moments later wearing different clothes. The only logical inference and conclusion is that Mr. Basha had some clothing inside Unit 232 at that time.

[275] Given the number and length of occasions he was present at 790 during surveillance, his testimony that he went to Unit 232 to hang out, to do drugs there and the presence of some of his clothing and documents in Unit 232, the only logical inference is that:

a. Mr. Basha occasionally slept some nights at Unit 232 during the surveillance period when the Concord was present early in the morning; and

b. He in any event had ready access into and was a frequently inside Unit 232.

[276] Independent of the issue as to principle residence, Mr. Basha had key access to and was able to enter and leave Unit 232 on his own initiative. That apartment contained large quantities of valuable drugs which others trusted him with at a time when he was selling drugs.

[277] As to some drugs being in a locked closet safe in each of the two bedrooms and the larger quantity thereof being in Bedroom #3; there is no evidence either of those bedrooms were locked upon the July 15, 2014 execution of the warrant. Mr. Basha was selling drugs at the time. He needed to access drugs to do that which the two bedrooms contained.

[278] More important are the facts that:

a. There was a key to each safe readily accessible to anyone frequently in Unit 232. Placing those keys under a blanket on a closet shelf and in a plastic cup beside the safe, greatly reduced any security provided by the safes;

b. 48 grams of cocaine in any event was on top of the safe in Bedroom #4. There was 16 grams of cocaine and 17.5 grams of crack in a tin box outside the safe in Bedroom #3. Those drug quantities exceed average possession for personal consumption and were readily accessible without a key;

c. Ms. Ismhali presumably left Unit 232 on some occasions. Mr. Basha testified he did not know who was the male whom he understood also lived at Unit 232 and he therefore never saw this male resident in that Unit, despite his frequent attendances in that unit;

d. Mr. Basha had a key on his person to the safe in Bedroom #4 and his documents were located in that bedroom at the time of his arrest; and

e. The owner(s) of the drugs in Unit 232 trusted and provided Mr. Basha with unlimited access to the Unit and the drugs there.

[279] The purpose of the key to the safe in Bedroom #4 in the possession of Mr. Basha was to provide him with ongoing access to the contents of that safe. The only purpose of the additional key to that safe on the closet shelf above was to provide trusted others, including himself, with access to the contents in that safe. In the same way, the safe key in the cup beside the safe in Bedroom #3 provided Mr. Basha and others with access to that larger quantity of drugs in that safe.

[280] Mr. Basha had knowledge of, access to and exercisable control of cocaine and crack in each safe and on top of and beside each safe in Bedrooms #3 and #4.

[281] While Mr. Basha, given his age, limited employment and financial circumstances was undoubtedly not the only or primary owner of the drugs in Unit 232 on July 15, 2014, he had knowledge of, access to and exercisable control of the drugs in that unit. His admitted regular attendance in Unit 232, his knowledge as determined that material quantities of drugs were present in and sold out of that apartment and his sale of drugs as determined included his acceptance and involvement by the owners in that drug marketing out of Unit 232 on July 15, 2014.

[282] After consideration of the factors and directives in WD, the court concludes the Crown has proven that Mr. Basha had knowledge, ability to and a level of control and therefore constructive and joint possession of:

a. the 48 grams of cocaine atop the safe and the 2.5 grams of crack in the safe in Bedroom #4;

b. the 253 grams of cocaine inside the safe and the 16 grams of cocaine and the 17.5 grams of crack cocaine in the Jack Daniels’ box in Bedroom #3 closet;

c. including knowledge that such substances were cocaine and crack cocaine;

for the purposes of trafficking.

[283] Mr. Basha therefore is again guilty of count 1 as to the cocaine in Unit 232 and guilty of count 2 as to the 17.5 grams of crack cocaine in Bedroom #3.

[284] The court in the alternative as to the cocaine and crack cocaine in Unit 232 finds Mr. Basha had the common intention with others to traffic in those drugs or to assist others to do so. He knew or ought to have known that the commission of the offence would be a probable consequence of carrying out that common purpose. Mr. Basha therefore is guilty of possession for the purpose of trafficking under counts 1 and 2 pursuant to s. 21(2) of the Code.

Proceeds of Crime Count #12

[285] I refer again to my analysis and determination above that Mr. Basha on July 15, 2014 in the acknowledged drug sale transaction at the mail box was the vendor.

[286] He at the time of that transaction had knowledge and possession of the 78.5 grams of cocaine in the Concord trunk. There was no need for him to buy 5.4 grams then on his possession from a third party.

[287] Detective Emery testified that the typical street sale of cocaine involved the purchase of between ½ to 1 gram of cocaine which would cost between $50.00 to $93.00.

[288] The $200.00 in Mr. Basha’s pocket outside his wallet, based on Detective Emery’s evidence as to street values, was the cost of approximately 2 grams of cocaine versus the approximate $500.00 value of the 5.4 grams of cocaine in Mr. Basha’s pocket.

[289] The $200.00 outside of Mr. Basha’s wallet was drug sale proceeds received in this short front and back seat sale by Mr. Basha which was quickly placed in his pocket as the other male exited the Concord and Mr. Basha drove away. That is the reason the $200.00 was not inside his wallet as he dressed and put his wallet in his clothing that day.

[290] Courts faced with evidence of cash outside the wallet have determined that significant on a charge of trafficking: Munif, para 7(57) and 13.

[291] The $200.00 on Mr. Basha at the time of arrest on July 15, 2014 outside his wallet was proceeds of the crime of his selling prohibited drugs on that occasion. Any other conclusion defies common sense. Those facts establish the essential elements of s. 355(b).

[292] Mr. Basha is guilty of count 12.

Breach of Probation Charge

[293] Mr. Basha’s misconduct on July 15, 2014 resulting in his convictions of counts 1, 2 and/or 12 would result in his breach of his December 18, 2012 probationary sentence requiring him to keep the peace and be of good behaviour, absent a reasonable excuse as per s. 733.1. Absent such reasonable excuse, such misconduct subject to the Crown establishing the elements of this offence beyond a reasonable doubt, would render him guilty of count 13 for failing keep the peace and be of good behaviour.

[294] Mr. Basha’s defence of this charge is that pursuant to s. 733.1(1), he had a reasonable excuse and the Crown has failed to prove the requisite subjective mens rea of this charge.

[295] He testified his probation officer at some unspecified time prior to July 15, 2014, told him that his past regular attendances at her office during his probation term were no longer required. Mr. Basha testified he interpreted this alleged statement by his probation officer as effectively terminating his court ordered ongoing period of probation which followed his conditional sentence of two 4 month periods of house arrest and curfew for his two convictions of drug trafficking on December 18, 2012.

[296] That 12 month period of probation therefore began on August 19, 2013 and ended on August 18, 2014. .

[297] Mr. Basha thus explained that the otherwise contradictory evidence of his probation officer’s business card noting his upcoming Wednesday, July 30, 2014 probation appointment with her at 11:30 a.m. was, he allegedly understood, thereby cancelled.

[298] Unlike the former wording in s.740, the current s.733.1(1) of the Code contains no express requirement of proof that that the failure or refusal to comply with the probation order was done “willfully”. That requirement has been replaced by “without reasonable excuse”.

[299] Someone like Mr. Basha may not have known that a court ordered period of probation determined on sentencing could only be amended by court order.

[300] The work of probation officers includes their necessity to understand the terms of court sentences including probation orders and whether the convicted person reporting to them has complied with those terms of probation.

[301] Probation officers normally do not misunderstand their lack of jurisdiction to shorten, waive or extend a court ordered period of probation without an amending order and do not on their own authority advise a sentenced person that their probation period had ended when the court ordered probationary term of sentence state otherwise.

[302] I do not accept that his probation officer told Mr. Basha that his probation period was shortened and terminated early. Mr. Basha does not allege the probation officer told him that.

[303] Advising Mr. Basha one or two months prior to the end of his term of probation that he would no longer be required to continue to regularly meet with him or her; is not equivalent to telling him his probation period was thereupon terminated early. One speaks to the requirement that he meet with the officer regularly which is not a requirement stated in the probation order, as compared to a court ordered length of probation contained in the probation sentence order which Mr. Basha signed in this case.

[304] If Mr. Basha’s testimony that he understood that his probation period was over because the officer told him he need not continue to regularly attend meetings were true, there would have been no reason for Mr. Basha to retain this probation officer’s business card confirming the date and time of his upcoming appointment. He continued to retain that appointment card after he allegedly understood his probation was over.

[305] Even accepting that subjective mens rea is the level of the requirement in s. 733.1 offence as held in R. v. Eby, 2007 ABPC 81, paras 91 and 96, the Crown has proven that Mr. Basha either knew or was wilfully blind that his probation sentence continued as of July 15 requiring him to keep the peace and be of good behaviour.

[306] The requirement to consider the subjective circumstances does not in this case include Mr. Basha being an unsophisticated person or a poor record keeper as in Eby: para 98. There are no surrounding circumstances involving this accused which create doubt as to his knowledge that the court ordered period of probation had not and would not expire until August, 2014.

[307] Mr. Basha’s testimony as to his belief that his court ordered term of his probation had been shortened because he no longer must attend meetings with his probation officer is not credible, does not raise a reasonable doubt and is not a reasonable excuse for his non-compliance with the court ordered requirement to keep the peace and be of good behaviour as of July 15, 2014.

[308] Mr. Basha’s misconduct resulting in his conviction of counts 1, 2 and 12 each constitute his breach of his probationary sentence requiring him to keep the peace and be of good behaviour thereby contravening s. 733.1(1) of the Code.

[309] Mr. Basha is guilty under count 13 pursuant to s. 733.1(1).

Weapon Charges

[310] Detective Emery testified that guns are often present for protection of valuable drug assets and personal protection against conduct of drug addicts.

[311] Courts in cases involving drug trafficking and the presence of a weapon have determined:

a. A loaded gun is a valuable item and dangerous if un-expectantly discovered with penal consequences. It is improbable that a criminal would casually deal with such a weapon. It is improbable a criminal would let this valuable asset out of his control risking discovery and loss: R. v. Gagliardi, 2005 O.S.C.J. 1543, paras 44 and 45 and R. v. McIntosh, para 42;

b. The physical proximity of a gun to the drugs permits a reasonable inference that the gun is present for protection in relation to the illegal drugs: R. v. McIntosh, para 44;

c. Having found the accused was a party to an illegal drug operation, the court inferred the gun was present in the residence to protect that illegal drug trafficking operation. The only reasonable inference was that the accused must have known of the readily visible gun and its relation to the drug operation: R. v. Munif, [2009] B.C.J. No. 2173 (B.C.A.C.)

d. One court accepted testimony that the association of a gun together with a drug trafficking operation is the equivalent of “milk’s association with cookies”, R. v. Buoc, unreported, (2014, Polowin J., pages 12 and 29 (Ont. S.C.)

[312] The Crown submits that the facts and inferences leading to it establishing knowledge, control and possession of the drugs in counts 1 and 2, similarly establishes and leads to the same conclusion regarding the 410 shot gun and Mr. Basha’s guilt of counts 3 to 11.

[313] I agree with the Crown’s submission that the quantity and value of the drugs in Unit 232, and the presence of the shotgun wrapped a plastic bag on the floor in the back of the Bedroom #3 closet, supports the logical inference that such weapon was present for protection of those drug assets and those working in this illegal drug operation. Any other explanation defies logic.

[314] The court accepts the general principles stated above in Gagliardi and McIntosh. Each case however must be decided on its own facts.

[315] There are important distinctions in this case regarding the weapon and ammunition wrapped inside bags at the back of the closet behind the wall mount in Bedroom #3 occupied by Ms. Ismhali and some unknown male.

[316] There is no evidence of the gun or ammunition:

a. Ever being in the Concord;

b. Ever being discussed, seen or removed from the closet in Bedroom #3 during the 17 day period of surveillance;

c. Ever being present during the drug transactions conducted by Mr. Basha at 790 or elsewhere as determined.

[317] The not uncommon presence of such a weapon by those trafficking in drugs is not evidence that a weapon is present in every case of a mid-level drug trafficking business such that a participant in that trafficking must have known.

[318] The evidence of Mr. Basha’s knowledge of the alleged regular drug use inside Unit 232, his knowledge of the presence of drugs inside Bedrooms #3 and #4 and his sale of drugs, is absent in the case of this weapon and ammunition.

[319] The trust accorded Mr. Basha as to the drugs in Unit 232 and their purpose does not automatically equate to disclosure about or his knowledge as to the presence of the firearm and ammunition in Bedroom #3 wrapped in plastic behind a mount frame in the back of the closet.

[320] The argument that he must have known about the presence of the gun inside the bag in the closet of Bedroom #3, because in relation to the business of drug trafficking being done out of Unit 232, he had access to the closet and the drug contents in Bedroom #3 presumes he had knowledge of everything else inside that bedroom occupied by others.

[321] The court does not by way of example have sufficient evidence to infer that Mr. Basha knew about the passport and other documents of Ms. Ismhali under the bed in Bedroom #3 despite his access to that room and his regular attendance at Unit 232 to hang out and his participation in the sale of drugs out of that unit.

[322] I recognize that a passport is factually unrelated to drug trafficking, however the presence of a firearm while consistent with trafficking, is not automatically known necessarily to each member of that drug trafficking team.

[323] It is possible that Mr. Basha, despite his involvement in the trafficking of drugs out of Unit 232, did not know about the presence of the weapon and ammunition inside the bag at the back of the Bedroom #3 closet behind the television wall frame given what appears to be his secondary role in that illegal business given his limited financial resources and Unit 232 not being his principle residence.

[324] It is possible the primary owners of the drugs in Unit 232 for safety reasons may not have revealed the gun to this otherwise trusted trafficking participant who was also a user and self-admitted drug addict.

[325] There is no direct evidence and there is insufficient circumstantial evidence to infer that Mr. Basha had knowledge and therefore an element of control of the weapon to conclude possession which is an essential element in counts 3 to 11.

[326] The court has a reasonable doubt and Mr. Basha is accordingly acquitted of counts 3 to 11.

Mr. Dokaj

[327] In support of the charges against Mr. Dokaj, the Crown submits the evidence establishes his possession of and conviction of counts 1 and 2 as to the drugs in the bedrooms of Unit 232 and/or the Concord trunk for the purpose of trafficking, as well as the weapon charges in counts 3 to 11 on the basis that:

a) He had constructive possession of the drugs and weapons; or

b) He had a common intention with and to assist Mr. Basha to carry out a common purpose of trafficking in such drugs and possession of the weapon, pursuant to s. 21(2) of the Code.

[328] The evidence before the court regarding Mr. Dokaj with others in relation to the cocaine, the crack cocaine, the marketing of those drugs himself or in common with others and the weapon is limited to:

a) the presence of Mr. Dokaj’s driver’s license inside the Black Jeep on July 15, 2014;

b) the presence on July 15, 2014, of his Ottawa gym identification card and one Black Jeep ignition key in Bedroom #4.

c) the fact that he and Mr. Basha knew one another and occasionally went fishing together;

d) he was present in the Concord when Mr. Basha sold drugs to the male at the mailbox on July 15, 2014;

e) the presence of another Black Jeep ignition key in the kitchen of Unit 232;

f) the Black Jeep was parked at 790 on July 3, 5, 9 and 15, 2014 beside or close to the parked Concord; and

g) Mr. Basha’s testimony that he in the past had sold the Black Jeep to Mr. Dokaj or the brother of Mr. Dokaj and that Mr. Dokaj drove the Black Jeep when he came periodically to Ottawa for work.

[329] The presence of his gym card inside Bedroom #3 and his exit from 790 on July 15, 2014 is sufficient to infer that Mr. Dokaj was inside Unit 232 on that date.

[330] The evidence against Mr. Dokaj however is much different than that against Mr. Basha as to Unit 232 and the drugs and weapons therein.

[331] There is no direct evidence that Mr. Dokaj:

a. Was present at 790 prior to July 15, 2014 including on July 3, 5 and 9, 2014, when the Black Jeep was parked at 790;

b. Was the unidentified male accessing the Black Jeep on July 3 and 5, 2014;

c. Had keys to 790 or Unit 232 on July 15, or September 4, 2014, as he did not;

d. Had a key to either of the safes in the two closets inside the bedrooms of Unit 232 on July 15, 2014, or any other time;

e. Had clothing in Unit 232;

f. Had knowledge or evidence to infer knowledge about the drugs or the weapon in Unit 232 on July 15, 2014;

g. Attended short meetings with others similar to those during short street drug transactions, other than his July 15, 2014 presence as a passenger in the Concord driven by Mr. Basha when Mr. Basha sold drugs to the male in the mailbox meeting;

h. Knew or had been with any of the lessees of Unit 232, namely Mr. Lumi or the two LeBlanc’s;

i. Used or had any prohibited drugs in his possession; or

j. Had any experience and therefore knowledge about the storing, handling and sale of illegal drugs.

[332] The Black Jeep on July 15, 2014 was owned by a female who was not identified in relation to 790 or Unit 232. It was not then owned by Mr. Dokaj or his brother.

[333] The white male removing something from the Black Jeep and placing it in the Concord on July 3, 2014 is not identified as Mr. Dokaj.

[334] As to his driver’s license being inside the Black Jeep on July 15, 2014 and the parked presence of that vehicle on December 3, 5 and 9, 2014, Mr. Dokaj submitted in argument that vehicle may simply have been parked at 790 for several days by Mr. Dokaj while he was out of Ottawa prior to the surveillance’s first identification of him coming out of that building on July 15, 2014. That is a possibility, particularly as the driver of the Black Jeep on July 5, 2014 was not identified as Mr. Dokaj and none of the 11 OPS officers identified him during the 16 other days of surveillance.

[335] A person who is mad, worried, puzzled or sad might appear to be “looking hard”, as it is alleged Mr. Dokaj looked upon exiting 790 with Mr. Basha on July 15, 2014 as the latter placed the red and black bag in the Concord. That bag minutes later upon their arrest contained no drugs.

[336] Being present as a passenger in the Concord while someone else makes a consumer sale of drugs as occurred does not constitute knowledge or control as to the drugs then sold, in the Concord wheel well, in Mr. Basha’s pocket or in Unit 232 on July 15, 2014.

[337] As to Mr. Dokaj, the Crown relies upon criminal responsibility pursuant to s. 21 of the Code in the form of Mr. Dokaj adding or abetting.

[338] 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.

[339] Something beyond merely being present is required as to s. 21. It 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 CanLII 20 (SCC), [1979] 2 S.C.R. 881, p. 106 and R. v. Arias-Jackson, 2007 SCC 52, [2007] 3 S.C.R. 514. There is no such evidence against Mr. Dokaj as to Mr. Basha’s sale of drugs at the mailbox on July 15, 2014 or the drugs and gun in Unit 232.

[340] The evidentiary problems involving the gun charges against Mr. Basha applies equally as to those charges regarding Mr. Dokaj.

[341] There is insufficient evidence against Mr. Dokaj to establish knowledge, control and possession of the drugs or the gun and ammunition in Unit 232 or the drugs in the wheel well of the Concord on July 15, 2014, which was the only day he was observed at 790.

[342] There is no evidence under s. 21(1) of Mr. Dokaj encouraging or aiding or abetting Mr. Basha as to trafficking of drugs. His alleged actions as a “lookout” are equivocal of many other things.

[343] There is no direct or circumstantial evidence that the $250.00 in the pockets of Mr. Dokaj on July 15, 2014 was, nor is it reasonable to infer money proceeds from the sale of drugs on that or any prior date or from the commission of any other offence.

[344] All of the evidence does not support a reasonable inference that such money or part thereof was proceeds of crime.

[345] The Crown has not proven the charges against Mr. Dokaj beyond a reasonable doubt.

Conclusion

[346] Mr. Basha is convicted of counts 1, 2, 12, 13 and 14. He is acquitted of counts 3 to 11.

[347] Mr. Dokaj is acquitted of all charges.

Mr. Justice Paul Kane

Released: October 6, 2017

CITATION: R. v. Basha and Dokaj, 2017 ONSC 4910

COURT FILE NO.: 14-G2165

DATE: 2017/10/06

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

Her Majesty The Queen

Applicant

– and –

Valdrin Basha

Anton Dokaj

Respondents

TRIAL DECISION

Kane J.

Released: October 6, 2017