His Majesty the King v. Daniel Dubajic

COURT FILE NO.: CR-21-10000460-0000

DATE: 2022-12-09

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING

– and –

DANIEL DUBAJIC

COUNSEL:

E. Pancer and J. Lynch, for the Crown

M. Worsoff, for Mr. Dubajic

HEARD: November 28-30, December 1, 2022

REASONS FOR JUDGMENT[^1]

SCHRECK J.:

[1] Did Daniel Dubajic know about the 106 kilograms of cocaine, five kilograms of fentanyl, 30 kilograms of crystal methamphetamine, four kilograms of methylenedioxymethamphetamine (MDMA), 57 handguns, eight long guns and 15,000 rounds of ammunition the police found in the two-bedroom apartment where he lived by himself?

[2] These items were found when members of the Toronto Police Service executed a search warrant at Mr. Dubajic’s residence on November 17, 2020. As a result, Mr. Dubajic is charged on a 73-count Indictment with a number of drug and firearm offences and has elected to be tried in this court without a jury.

[3] Mr. Dubajic admits that the items were found in his apartment, but denies that he had knowledge of any of the guns or ammunition and most of the drugs, although he admits having knowledge of some of the cocaine. The central issue that must be determined is whether the Crown has proven beyond a reasonable doubt that Mr. Dubajic had knowledge of the drugs, firearms and ammunition.

I. EVIDENCE

A. The Apartment

[4] Mr. Dubajic lives in a two-bedroom apartment in a five-unit building on Cloverhill Road in Toronto. He has lived there for over 20 years. Although he had roommates in the past, he has lived alone for the past several years.

[5] The apartment consists of a living room, a kitchen, an office area, a bathroom and two bedrooms. One of the bedrooms is fully furnished. The other is mostly empty, but contains an armoire. Both bedrooms have closets.

B. Surveillance Before the Search

[6] On November 16, 2020, members of the Toronto Police Service obtained a warrant to search Mr. Dubajic’s residence which they executed the following day. Prior to executing the warrant, D.C. Raymond Direnzo, D.C. Matthew Roy and D.C. Stephen Hogg set up static surveillance outside the apartment building to ensure that Mr. Dubajic did not leave. D.C. Direnzo arrived at 1:53 p.m. and the other two officers arrived some time thereafter.

[7] At 2:31 p.m., the officers observed a Toyota Rav 4 parked outside the building. A man got out of the vehicle and walked to a parking lot next to the building where he met with another man. The men were carrying large duffle bags that appeared to have wheels and extendable handles and one of them had a red backpack. The men went into the building and came out empty-handed. They went back to the vehicle and then returned to the building carrying duffle bags similar to the ones they had earlier. They entered the building and then came out empty-handed at 2:44 p.m., after which they drove away at 2:46 p.m.

C. Execution of the Warrant

(i) The Arrest of Mr. Dubajic

[8] At 3:25 p.m., the police entered Mr. Dubajic’s apartment by breaching the front door with a battering ram. Mr. Dubajic was in the living room when they arrived and was arrested without incident.

[9] When the police arrived, both bedroom doors were closed and were kicked open by the police. Both door handles had locks on them, but the police did not check if they were locked. There is no evidence that any keys were found in the apartment.

(ii) The Unfurnished Bedroom

(a) Drugs

[10] The unfurnished bedroom had a sign on it which said “Vandelay Industries.”[^2] The room was unfurnished except for a wardrobe and a space heater. On the floor of the room, the police found four large duffle bags similar to those they had seen the two men with earlier that day outside the building. Each bag contained approximately 25 bricks of cocaine in blue wrapping. Each brick weighed approximately one kilogram. The bricks were later unwrapped and each was observed to have been stamped with words (“A1,” “MONO,” “BSS,” “LUCKY,” and “ZEUS”) or a picture of a wrench or what appeared to be an elephant or similar animal.

[11] Inside a cardboard box on the floor were a number of Ziploc bags containing approximately 30 kilograms of crystal methamphetamine.

[12] The wardrobe in the room was found to contain a number of green reusable shopping bags. One contained several bricks of fentanyl wrapped in brown paper totalling approximately five kilograms.

[13] Another bag contained approximately four kilograms of MDMA. A digital scale, a vacuum sealer and unused Ziploc bags were also in the wardrobe.

(b) Firearms and Ammunition

[14] There was red knapsack on the floor similar to that which one of the men outside the building was carrying. Inside the knapsack was a green reusable shopping bag containing two cardboard boxes, each of which contained several smaller boxes of ammunition. Ammunition was also found in a duffle bag. In total, approximately 15,000 rounds of ammunition were seized.

[15] A number of handguns were found in bags on the floor and in the wardrobe. In total, 57 handguns were seized, 56 of which were prohibited weapons and one of which was a restricted weapon as defined in s. 84 of the Criminal Code. Six of the handguns were loaded. Other bags contained six long guns which were neither restricted nor prohibited.

[16] The police also seized 12 detachable box cartridges and two Glock full auto fire selector switches, all of which are prohibited devices as defined in s. 84 of the Criminal Code.

(iii) The Furnished Bedroom

(a) Cocaine in the Closet

[17] A small black bag on a shelf in the closet of the furnished bedroom contained a digital scale, a small plastic bag containing 12 grams of cocaine, and several “dime bags” of cocaine, the weight of which totalled six grams.

(b) Cocaine in the Ottoman

[18] On the floor near the bed was a leather ottoman with a removable top. In it were three baggies containing 250, 251 and 265 grams of cocaine, respectively. Below the shopping bag was a black box containing several “dime bags” of cocaine weighing a total of 120 grams.

(c) Cocaine in the Gym Bag

[19] Near the bedroom window was a grey gym bag containing six bricks of cocaine in blue wrapping identical to the wrapping on the bricks found in the unfurnished bedroom. Each brick weighed approximately one kilogram. Some of the bricks had “A1” stamped on them and some had a picture of a wrench. The same stamps were on some of the bricks found in the unfurnished bedroom.

(iv) Fingerprints

[20] Various fingerprints were found on the seized drugs. None matched Mr. Dubajic. The only fingerprint that was identified belonged to an individual named Keith Rochon.[^3]

D. Expert Evidence

(i) Production and Distribution

[21] Sgt. Richard Duffus was qualified as an expert in the origins, production and distribution of cocaine, fentanyl, crystal methamphetamine and MDMA.

[22] Sgt. Duffus testified that cocaine is produced in South America and imported into Canada. Fentanyl, crystal methamphetamine and MDMA are apparently also produced in South America, but can be produced in Canada as well.

[23] According to Sgt. Duffus, drugs of the type found in this case were usually sold by the kilogram by “high level” dealers to “mid level” dealers, who would then sell them by the ounce to “street level” dealers, who would in term sell them in small quantities to users.

[24] Drug dealers usually used trusted individuals to transport and “stash” their drugs. These people would usually be paid in cash, but would sometimes be paid in “product.”

(ii) Pricing

[25] Sgt. Duffus testified that in 2020, cocaine generally cost $48,000 to $53,000 per kilogram, although the price “sometimes escalated” to almost $70,000. When sold in smaller amounts, cocaine would cost $220 to $270 for an ounce (28.4 grams) and $80 to $110 for a gram.

[26] In 2020, fentanyl sold for $80,000 to $110,000 per kilogram, $3,000 to $4500 per ounce and $180 to $220 per gram.

[27] In 2020, crystal methamphetamine sold for $23,000 per kilogram and $80 to $110 per gram and MDMA sold for $9,000 to $12,000 per kilogram.

(iii) “Debt Lists”

[28] Sgt. Duffus was shown various sheets of paper seized from the office area of Mr. Dubajic’s apartment which had handwritten words and figures on them. According to Sgt. Duffus, these were “consistent with” being debt lists of the type used by drug dealers.

E. Mr. Dubajic’s Evidence

(i) Background and Living Arrangements

[29] Mr. Dubajic is 47 years old. He has no criminal record and is self-employed as a painter. He has lived in the apartment where he was arrested for over 20 years. He has had roommates at times, but has not had one since about three years prior to his arrest.

(ii) Rental of the Unfurnished Bedroom

[30] Mr. Dubajic testified that after his last roommate moved out, he made attempts to find a new roommate. In early 2020, a friend he knew since childhood, Mike Kandidatoff, introduced him to a person whose first name was something like “Raojoan” but who called himself “R.J.” R.J. was looking for a place to rent for a few months. He told Mr. Dubajic that he was having marital problems and wanted a place “to get away” and to store things. He did not intend to sleep there.

[31] Mr. Dubajic agreed to rent the unfurnished bedroom to R.J. for five months at a cost of $500 per month. R.J. gave Mr. Dubajic $500 when they first met and an additional $2000 at the beginning of June. He paid in cash. When it was pointed out to Mr. Dubajic in cross-examination that the five months R.J. had paid for would only have covered the room rental to October, Mr. Dubajic added that R.J. had later asked to extend the rental.

[32] Mr. Dubajic gave R.J. keys to the building and the apartment. He also gave R.J. the only key for the unfurnished bedroom.

[33] R.J. moved some things into the room on the first weekend in June 2020. Mr. Dubajic helped him. At that time, R.J. brought two backpacks, a gym bag, a box and a mattress that folded up. R.J. showed some of the contents of the bags and the box to Mr. Dubajic. They contained cans of pop, potato chips and chocolate bars, many in flavours Mr. Dubajic had never seen before. R.J. also had a watch, rings, a necklace, clothes and some keychains. He told Mr. Dubajic that he imported items from China to sell.

[34] Whenever Mr. Dubajic saw R.J., he had a bag or box containing various items with him. These included a device to measure blood pressure and a lighter that plugged into a USB port. Mr. Dubajic never saw R.J. with anything illegal.

[35] When asked during his examination-in-chief whether he had ever been in the unfurnished room with R.J., Mr. Dubajic replied that he was there with him the day he moved in. In cross-examination, he testified that he had been in the room with R.J. several times and had never seen any evidence that anything illegal was being stored there.

(iii) Movements on November 17, 2020

[36] On November 17, 2020, Mr. Dubajic woke up at about 7:00 a.m., meditated, walked and fed his dogs, and made himself a shake. He had plans to assist his neighbour, Tom Choi, who worked in a warehouse and who was expecting the arrival of a container that needed to be unloaded.

[37] After receiving a call from Mr. Choi, Mr. Dubajic left for the warehouse, which was about a 10-minute drive away, at sometime between 9:45 a.m. and 10:15 a.m. He worked there for about two hours and got home at some time between 12:30 p.m. and 1:15 p.m. Mr. Choi testified that Mr. Dubajic was at the warehouse from around “9:30ish” to “somewhere around” 1:30 p.m. or 2:00 p.m.

[38] When Mr. Dubajic got home, he took his dogs for a walk for about 20 or 30 minutes and had something to eat, which took another 20 or 30 minutes. Mr. Dubajic then went to the basement of the building to retrieve some painting equipment for a painting job he was scheduled to do that afternoon. He was unable to find a specific piece of equipment he required and concluded that it must be in a storage locker he rented at a different location.[^4] As a result, he decided not to do the painting job until the following day. Mr. Dubajic returned to his apartment, went into the living room, and sat on the couch. Mr. Dubajic did not see R.J. or anybody else in or near his apartment that day.

[39] About 15 or 20 minutes after Mr. Dubajic returned from the basement, the police arrived, arrested him and searched his apartment.

(iv) The Cocaine in the Bedroom

[40] Mr. Dubajic testified that the cocaine in the toiletry bag found in his bedroom closet belonged to him. Some of it was for his personal use and some he intended to sell, something he did regularly in small amounts to five or six regular customers. The cocaine was supplied to him by a person he knew as “Steve” whom he had met a few years earlier.

[41] The 12 grams of cocaine in the black box inside the ottoman also belonged to Mr. Dubajic. The remainder of the drugs in the ottoman (about three quarters of a kilogram) did not belong to Mr. Dubajic, but he acknowledged that he put them there after agreeing to store them for a day at the request of Steve.

[42] Mr. Dubajic testified that the grey gym bag containing six one-kilogram bricks of cocaine found in his bedroom did not belong to him and he had never seen it before. The bag had not been in his room when he returned home from helping Mr. Choi earlier that day. At that time, he left the bedroom door open as he usually did.

(v) Knowledge of the Items in the Unfurnished Bedroom

[43] Mr. Dubajic testified that he had no knowledge of any of the drugs or firearms in the unfurnished bedroom. He has never met or heard of Keith Rochon, the person whose fingerprint was found. According to Mr. Dubajic, the door to the unfurnished room was always locked and R.J. had the only key. Mr. Dubajic knew it was always locked because he had tried the door several times out of curiosity and found it locked each time.

[44] After his arrest, Mr. Dubajic contacted Mr. Kandidatoff, who agreed that he would testify at Mr. Dubajic’s trial about having introduced him to R.J. However, Mr. Dubajic later learned that Mr. Kandidatoff had died in a car accident.[^5]

II. THE CHARGES

[45] Counts 1 to 4 charge Mr. Dubajic with possession of four different controlled substances for the purpose of trafficking contrary to s. 5(2) of the Controlled Drugs and Substances Act: fentanyl, cocaine, crystal methamphetamine and MDMA.[^6]

[46] Counts 5 to 8 charge Mr. Dubajic with possession of prohibited firearms, non-restricted firearms, prohibited devices and ammunition for the purpose of transferring them, contrary to s. 100(1) of the Criminal Code.

[47] Counts 9 to 51 and Counts 60 to 73 charge Mr. Dubajic with possession of a restricted firearm that is loaded or has readily accessible ammunition while unauthorized in relation to each restricted firearm that was seized, contrary to s. 95(1) of the Criminal Code.

[48] Counts 52 to 58 charge Mr. Dubajic with possession of each of the non-restricted firearms while unauthorized, contrary to s. 91(1) of the Criminal Code.

[49] Count 59 charges Mr. Dubajic with possession of prohibited devices (two Glock full auto fire selector switches) while unauthorized, contrary to s. 91(2) of the Criminal Code.

III. ANALYSIS

A. Relevant Legal Principles

(i) Presumption of Innocence

[50] Mr. Dubajic is presumed to be innocent of each of the charges he is facing. He may only be convicted on any count if the Crown proves the essential elements of that count beyond a reasonable doubt. The burden to do so rests with the Crown and never shifts. There is no onus on Mr. Dubajic to prove anything, least of all his innocence. Proof beyond a reasonable doubt is a significant standard. While proof beyond a reasonable doubt is not the same as absolute certainty, it is closer to that standard than it is to proof on a balance of probabilities. In applying the burden of proof, I must consider each count separately.

(ii) Possession

[51] None of the drugs or firearms were in Mr. Dubajic’s personal possession. The issue is whether he was in constructive possession of any of the items. According to s. 4(3)(a)(ii) of the Criminal Code, constructive possession exists if a person has the item in question “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.” Thus, to prove constructive possession, the Crown must prove that the defendant (1) has knowledge of the character of the item in question; (2) knowingly put or kept the item in a particular place (which need not belong to or be owned by him); and (3) intends to have the item in the place for his own use or benefit or that of another person: R. v. Lights, 2020 ONCA 128, 149 O.R. (3d) 273, at paras. 44-47; R. v. Morelli, 2010 SCC 8, [2010] 2 S.C.R. 600, at paras. 16-17.

[52] To obtain a conviction, proof of subjective knowledge is required. Proving that a defendant ought to have known of the existence of a prohibited item is insufficient: R. v. Tyrell, 2014 ONCA 617, 123 O.R. (3d) 109, at paras. 29-30. The Crown is also required to prove that Mr. Dubajic had control over the prohibited items in question, not simply some element of control over the premises where the items were kept: R. v. Masters, 2014 ONCA 556, 313 C.C.C. (3d) 275, at para. 23.

[53] The fact that Mr. Dubajic occupied the premises where the prohibited items were found may be relevant to the issue of possession: Lights, at para. 98. However, the fact that he occupied the premises does not give rise to a presumption that he possessed the items in question: R. v. Choudhury, 2021 ONCA 560, at para. 19; R. v. Provost (appeal by Watson), 2011 ONCA 437, at para. 13.

(iii) The Proper Approach to the Assessment of Exculpatory Evidence

[54] Mr. Dubajic testified and denied knowledge of all of the drugs and guns except for the cocaine in the bedroom closet and the ottoman. Obviously, if I believe Mr. Dubajic’s evidence, he is entitled to an acquittal (except on Count 2). Even if I do not believe Mr. Dubajic’s evidence, if it raises a reasonable doubt, he is entitled to an acquittal. If I am unsure whether to believe his evidence, he is entitled to an acquittal. Even if Mr. Dubajic’s evidence does not leave me with a reasonable doubt, the burden of proof remains on the Crown and he may only be convicted if the evidence I do accept establishes his guilt beyond a reasonable doubt.

(iv) Circumstantial Evidence

[55] The Crown’s case is entirely circumstantial. The approach to be taken to circumstantial evidence was discussed by the Supreme Court of Canada in R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000, where Cromwell J. explained how juries should be instructed with respect to this type of evidence (at para. 30):

... [I]n a case in which proof of one or more elements of the offence depends exclusively or largely on circumstantial evidence, it will generally be helpful to the jury to be cautioned about too readily drawing inferences of guilt. No particular language is required. Telling the jury that an inference of guilt drawn from circumstantial evidence should be the only reasonable inference that such evidence permits will often be a succinct and accurate way of helping the jury to guard against the risk of “filling in the blanks” by too quickly overlooking reasonable alternative inferences.

[56] Cromwell J. went on to caution that in considering whether the circumstantial evidence gives rise to reasonable inferences other than guilt, those alternative inferences need not be based on proven facts and may be based on “other plausible theories” and “other reasonable possibilities” which are inconsistent with guilt, provided that they are rooted in logic and human experience applied to the evidence or the absence of evidence: Villaroman, at paras. 35-37; R. v. Stennett, 2021 ONCA 258, 408 C.C.C. (3d) 141, at para. 60. However, the Crown is not required to negate every possible conjecture, no matter how fanciful or irrational: Villaroman, at para. 37. Put another way, a trier of fact cannot act on alternative interpretations of the circumstances that are unreasonable: Stennett, at para. 61.

[57] In considering whether an inference is reasonable, it is instructive to consider the cases respecting the test for committal at a preliminary inquiry in cases where the Crown relies on circumstantial evidence. It is clear from those cases that in order to be reasonable, an inference need not be “easily drawn”, “likely” or “probable”: R. v. Kamermans, 2016 ONCA 117, at para. 20; R. v. Katwaru (2001), 2001 CanLII 24112 (ON CA), 52 O.R. (3d) 321 (C.A.), at para. 41; R. v. Dwyer, 2013 ONCA 368, at para. 4. It follows from this that alternative inferences need not be as strong or as compelling as the inference of guilt. Put another way, it is not enough for the Crown to prove that guilt is the strongest reasonable inference. It must be the only reasonable inference.

[58] Ultimately, the issue is whether there is any other way of looking at the case as a whole that is reasonable such that there is a doubt about the accused’s guilt, when assessed logically and in light of human experience: Choudhary, at para. 19.

B. Assessment of Mr. Dubajic’s Evidence

[59] I have carefully considered Mr. Dubajic’s testimony in the context of all of the evidence. I do not accept it, nor does it leave me with a reasonable doubt. I will explain why.

[60] First, Mr. Dubajic’s testimony was inconsistent in some regards. For example, he first stated that he was only in the room once after R.J. rented it, and then later said he had been there several times. Mr. Dubajic was also inconsistent with respect to the length of his rental agreement with R.J. He at first indicated that R.J. had paid him $2500 to rent the room for five months. When it was pointed out to him in cross-examination that this would only have covered the rent until October, he stated for the first time that R.J. had extended the agreement.

[61] More importantly, Mr. Dubajic’s entire account is so fantastic that it defies credulity. According to him, while he was in the basement of his building looking for painting equipment, someone put enormous quantities of drugs and guns in his apartment without his knowledge. Even if one accepts the possibility that the contraband in the unfurnished bedroom was already there or placed there without Mr. Dubajic’s knowledge, Mr. Dubajic was clear in his testimony that the bag containing six kilograms of cocaine had not been in his bedroom when he returned home from the warehouse.

[62] According to Sgt. Duffus’s unchallenged evidence, six kilograms of cocaine would have been worth at least $288,000. If sold by the gram, it had a potential value of $480,000 to $660,000. The suggestion that someone would put something so valuable in Mr. Dubajic’s bedroom without his knowledge and where he could have stolen it, destroyed it, or handed it over to the authorities, is simply unbelievable. It is even more unbelievable when one considers that on Mr. Dubajic’s account, the person most likely for putting the drugs in his room, R.J., had access to a locked room where he could have safely kept it.

[63] Based on this, I conclude that Mr. Dubajic was not being truthful in his testimony when he denied knowledge of the six kilograms of cocaine in the bedroom. Because of his attempt to mislead the court on this issue, I reject his evidence in its entirety.

C. Assessment of Circumstantial Evidence of Knowledge

(i) Items in the Furnished Bedroom

[64] My rejection of Mr. Dubajic’s evidence does not automatically lead to findings of guilt. The burden of establishing guilt remains on the Crown.

[65] I will begin by considering the cocaine in the furnished bedroom. Given that this was found in Mr. Dubajic’s bedroom which he did not share with anybody, the Crown has clearly established control in relation to the six kilograms. Given the amount of the cocaine and the fact that it was found in the same room which Mr. Dubajic admitted he uses to store cocaine, I am satisfied beyond a reasonable doubt that Mr. Dubajic also had knowledge of the six kilograms.

(ii) Items in the Unfurnished Bedroom

[66] With respect to the items in the unfurnished bedroom, the only evidence that the room was locked came from Mr. Dubajic, whose evidence I reject. The cocaine in the duffle bags was packaged in the same blue wrapping as the cocaine in Mr. Dubajic’s bedroom, in similar amounts, and with similar stamps on it. Based on this, I conclude that it came from the same source and that Mr. Dubajic had knowledge of it.

[67] Having concluded that Mr. Dubajic had knowledge of the cocaine in the unfurnished room, it follows that he must have had knowledge of everything else in that room. The room was unfurnished and appears to have had no use other than the storage of contraband.

[68] I am fortified in my conclusions by the value of the drugs. The 106 kilograms of cocaine in the unfurnished bedroom was worth at least $5,088,000, the five kilograms of fentanyl at least $400,000, the 30 kilograms of crystal methamphetamine at least $690,000, and the four kilograms of MDMA at least $36,000, for a total of over $6,000,000. The potential value if sold to individual users was much higher. It is reasonable to infer that such a valuable quantity of drugs would not be entrusted to someone who did not know its nature: R. v. N’Kansah, 2019 ONCA 290, at para. 14; R. v. DaCosta, 2017 ONCA 588, at para. 21; R. v. Bains, 2015 ONCA 677, 127 O.R. (3d) 545, at para. 157; R. v. Bryan, 2013 ONCA 97, at para. 11. I draw that inference.

[69] For the foregoing reasons, I am satisfied beyond a reasonable doubt that Mr. Dubajic had both knowledge and control with respect to all of the drugs, firearms and other items found in his apartment.

D. Drug Offences

[70] It is conceded that the amounts of the drugs were such that their possession was for the purpose of trafficking. As a result, Mr. Dubajic is found guilty on Counts 1 to 4.

E. Firearm Possession Offences

[71] There is no issue that some of the restricted firearms were loaded and those that were not in proximity to readily accessible ammunition. There is also no issue that Mr. Dubajic did not have a licence or authorization to possess any of the firearms, ammunition or prohibited devices. As a result, he is found guilty on Counts 9 to 73.

F. Transferring Firearm Offences

(i) The Crown’s Position

[72] This leaves Counts 5 to 9. The Crown has proven that Mr. Dubajic possessed the firearms, prohibited device and ammunition referred to in those counts. However, the Crown must also prove that he possessed them “for the purpose of transferring them.” The word “transfer” is defined in s. 84 of the Criminal Code as “sell, provide, barter, give, lend, rent, send, transport, ship, distribute or deliver.” As noted in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, at para. 144, the common element in these terms is the notion of a transaction that includes the object in question changing hands.

[73] In contrast to the drugs, about which the Court heard the expert testimony of Sgt. Duffus, the Crown led no evidence with respect to the value of the firearms or any evidence about how such firearms were usually obtained and distributed. In support of its submission that the firearms must have been possessed for the purpose of transferring them, the Crown relies entirely on the sheer number of guns and the fact that not all of them were different, which the Crown submits precludes any inference that they were part of a collection.

(ii) Differences Between the Firearms

[74] With respect to the differences among the firearms, I note that the extent to which some of the firearms are the same is unclear. There is a list of seized firearms in an Agreed Statement of Facts in which several firearms are identified by their manufacturer, such as “Taurus” or “Sig Sauer.” However, an examination of the Certificates of Analysis reveals that many of these are different models. For example, the guns identified as “Taurus” include models 45, 85 and PT1911 and the guns identified as “Sig Sauer” include model P228 and one referred to as “Mosquito.” Some of the guns on the list indicate a model number, such as “Glock 17.” However, the Certificates of Analysis reveals differences among those as well. “Glock 17” includes guns identified simply as “Glock 17” as well as some identified as “Glock 17 Gen 4” and “Glock 17 Gen 5.” While it would appear that some makes and models appear more than once, overall, there is a fairly wide variety of firearms.

(iii) The Number of Guns

[75] A large number of guns can support an inference that they were possessed for the purpose of transfer: R. v. Radjenovic, 2011 BCSC 1840, at paras. 15-17, 40. However, in my view the number alone will rarely be sufficient by itself to establish guilt and some additional evidence will be required. For example, in Radjenovic, all of the guns were made by the same manufacturer and obtained at the same time and their serial numbers had been removed. In R. v. Green, 2015 ONSC 2996, on which the Crown relies, there was evidence that some of the guns had ended up in the hands of others, which supported the conclusion that all of them had been obtained for the purpose of being sold.

(iv) Conclusion

[76] In this case, there is no evidence as to how Mr. Dubajic came to be in possession of the firearms, nor is there any evidence that he transferred any of them. The serial numbers are all intact. However, the guns were found in the same room as very large amounts of controlled substances that were intended to be trafficked and stored in a similar way. The large amount of ammunition suggests that this was not simply a collection. In all the circumstances, the only reasonable inference is that the guns were being stored in the same room as the drugs because they were being possessed for the same purpose, that is, to be trafficked. It does not matter if they were to be trafficked by someone other than Mr. Dubajic provided he knew that this was what they were for. I am satisfied beyond a reasonable doubt that he did. As a result, Mr. Dubajic is found guilty on Counts 5 to 8.

IV. DISPOSITION

[77] For the foregoing reasons, Mr. Dubajic is found guilty on Counts 1 to 73.

Justice P.A. Schreck

Released: December 9, 2022

[^1]: An abbreviated version of these reasons was delivered orally in court. In the event of any inconsistency between those oral reasons and these written reasons, the written reasons should be taken as correct.

[^2]: This was apparently a reference to the television program “Seinfeld.”

[^3]: Mr. Rochon had been facing unrelated charges of possessing unspecified controlled substances for the purpose of trafficking which were stayed in February 2017. He was deceased at the time of trial.

[^4]: This storage locker was also searched by the police. Nothing of significance was found.

[^5]: There is no issue that Mr. Kandidatoff died on May 4, 2021.

[^6]: Mr. Dubajic was initially charged with two cocaine counts, one relating to each bedroom, and due to an oversight was not charged in relation to the crystal methamphetamine. With the consent of the defence, one of the cocaine counts was amended to substitute methamphetamine for cocaine and Count 2 now relates to all of the cocaine that was seized. Give Mr. Dubajic’s testimony, he is guilty of possession for the purpose of trafficking in relation to at least some of the cocaine found in the furnished bedroom. Although this would be sufficient to enter a conviction on Count 2, the parties agree that I should make a determination of whether the Crown has proven possession of the rest of the cocaine.