COURT FILE NO.: CR-23-90000013-0000
DATE:20231130
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
– and –
HARMINDER SINGH BASRA
Accused
Christie Black and Nic Baldwin, Counsel for the Crown
Anthony Wong, Counsel for the accused Basra
HEARD: November 20, 21, 22 and 24, 2023
M.A. CODE J.
Reasons for judgement
A. OVERVIEW
[1] The accused Harminder Singh Basra (hereinafter Basra) was charged in a six count Indictment, which included three counts of trafficking opium to an undercover police officer. At the time of the third undercover transaction, on September 9, 2021, he was arrested. The police “buy money” from that transaction was seized in Basra’s possession at the time of his arrest. This seizure of $530 resulted in a count of possession of proceeds of crime. There was no defence to these four charges (Counts 1, 2, 3, and 5) and Basra pleaded guilty on arraignment, after electing to be tried by judge alone.
[2] The other two counts in the Indictment related to certain seizures that were made by the police at the house where Basra apparently resided. The police had obtained a search warrant for the house, prior to the third undercover purchase of opium. After Basra’s arrest, they executed the search warrant and made a large number of seizures in various rooms in the residence, which was located at 30 Overskate Court in Toronto. The particular seizures that were allegedly connected to Basra were made in a bedroom in the basement of the house and were as follows: 809.61 grams of opium; and $1,475 in Canadian currency. As a result of these seizures, Basra was charged with possession of this opium for the purpose of trafficking (Count 4) and possession of proceeds of crime (Count 6). He pleaded not guilty to these two counts.
[3] Although Basra pleaded guilty to four counts in the six count Indictment, the evidence relating to the counts on which he had pleaded guilty was relevant to the counts on which he had pleaded not guilty. As a result, the Crown called substantially all of its evidence during three days of trial. The defence did not call any evidence. After hearing closing submissions on November 24, 2023, I reserved judgement. These are my reasons for judgement.
B. FACTS
(i) The main factual issue in dispute and the agreed facts
[4] In my view, the main factual issue in the case is whether Basra resided in the basement bedroom where the police seized 809.61 grams of opium and $1,475 in Canadian currency. This bedroom was referred to as “room #11” in the police search plan. Mr. Wong, counsel for the accused, agreed in closing argument that this was the main factual issue in the case. What complicated this issue was that no identifying documents relating to any person were found in “room #11”. In addition, there were a number of other bedrooms in the house. What further complicated the issue was the fact that four other adults (two married couples) resided in the house. In addition, Canadian currency and opium in various amounts were found in the two bedrooms where these two couples apparently resided.
[5] The parties sensibly negotiated a substantial Agreed Statement of Fact (ASF) which shortened the trial and focused the witnesses’ testimony on the central disputed issue summarized above. The more important admissions set out in the ASF, in my view, were as follows:
• The first sale of drugs to the undercover officer, Det. Cst. Sukhram, took place on August 28, 2021 in the area of 30 Overskate Court in Toronto. The drugs obtained in this sale were 9.7 grams of opium;
• The second sale of drugs to Det. Cst Sukhram took place two days later, on August 30, 2021, also in the area of 30 Overskate Court. The drugs obtained in this sale were 4.81 grams of opium;
• The third sale of drugs to Det. Cst. Sukhram took place ten days later, on September 9, 2021, also in the area of 30 Overskate Court. The drugs obtained in this sale were 19.92 grams of opium;
• The 809.61 grams of opium seized from “room #11”, one of the basement bedrooms at 30 Overskate Court, was found in four different locations as follows: 7.98 grams in a black box on a shelf by the closet; 17.05 grams in a white plastic case in a dresser drawer; 175.41 grams in a pink box on the top shelf of the closet; 288.77 grams in a white plastic bag located between the mattress and the box spring of the bed; and another 320.4 grams in this same white plastic bag;
• The 809.61 gram total of opium found in “room #11” was an amount consistent with trafficking and not consistent with personal use. The approximate value of this amount of opium was between $17,600 and $20,000;
• In an upstairs bedroom (room #13), the police found 5.15 grams of opium in a watch box. The approximate value of this amount of opium was between $250 and $350. Identification in the names of Gurminder Singh Grewal and Karamjit Kaur Grewal, as well as $6,875, was found in this bedroom. It is not alleged that Basra possessed the opium or money found in this upstairs bedroom;
• In another upstairs bedroom (room #16), the police found a total of 68.37 grams of opium in two locations: 18.58 grams in a satchel hanging in the back of a walk-in closet; and 49.79 grams in a white plastic bag on a shelf in the same walk-in closet. The approximate value of this total amount of opium was between $2,150 and $2,720. Identification in the names of Bhupinder Singh Grewal and Prabhjot Kaur Grewal, as well as $28,150 (and $260 U.S. dollars), was found in this bedroom. With the exception of two $50 bills, the $28,150 in Canadian cash was entirely in small $5, $10, and $20 bills. It is not alleged that Basra possessed the opium or money found in this upstairs bedroom;
• When sold in gram amounts, the price of opium is typically $50 to $70. A heavy user of opium could use 14 to 28 grams in a day.
(ii) The circumstances relating to the first sale of opium
[6] As noted above, it is admitted that the first sale of opium took place on August 28, 2021 and the amount sold was just under 10 grams. The undercover officer, Det. Cst. Sukhram, testified that the police were investigating the sale of heroin associated with two phone numbers and two names. The first phone number was 416-904-9979 and it was associated with the name “Pinda”. When Det. Cst. Sukhram called this number, there was no answer and no voicemail.
[7] The second phone number was 647-355-0078 and it was associated with the name “Basra”. When Det. Cst. Sukhram called this number at 8:39 p.m. on August 28, 2021, a male answered. Det. Cst. Sukhram identified himself as “Brian” and stated that he had been calling “Pinda” but there was no answer. The male advised that “Pinda” was in India but stated, “I am here”. He went on to ask, “what are you looking for”. Det. Cst. Sukhram replied, “down”. The male asked, “down, what’s that, my English is not good”? Det. Cst. Sukhram replied, “heroin”. The male stated, “sorry, I don’t have that, but I have black tar opium, it’s really good”. Det. Cst. Sukhram inquired about the price for the opium and the male replied that it was $150 for 5 grams (a “half order”) or $275 for 10 grams (a “full order”). Det. Cst. Sukhram agreed to buy 10 grams and the male instructed him to “come to 30 Overskate” and stated that it was his “home address”. Det. Cst. Sukhram made notes of this conversation during the call and there was no challenge to the credibility or reliability of his account.
[8] After the undercover surveillance team was briefed, and after Det. Cst. Sukhram was provided with $275 of police “buy money”, he proceeded by car to 30 Overskate Court. He arrived at 10:23 p.m. and parked directly opposite the house. It is located in a residential neighbourhood in Rexdale. The officer called the phone number associated with “Basra” and advised that he was parked across the street. The male stated he was “on his way”. Det. Cst. Sukhram saw a male come from the general area of 30 Overskate. He approached the driver’s side of the car. Det. Cst. Sukhram rolled down his window and asked if the male was “Basra”. He replied “yes”. They had a brief conversation about how Basra knew “Pinda” and about the fact that “Pinda” was in India. They confirmed the price and the amount to be sold and Basra stated that he had to “get the product from his home”. Det. Cst. Sukhram then watched Basra walk back towards 30 Overskate and out of view. At 10:29 p.m., Det. Cst. Sukhram saw Basra walking back from the area of 30 Overskate. Basra got into the front passenger seat and stated that he had the “product”. He handed Det. Cst. Sukhram a small 2 inch by 2 inch plastic baggie and stated that it was “really good”. Det. Cst. Sukhram handed Basra the “buy money”. Basra counted it and confirmed that it was $275. Det. Cst. Sukhram told Basra to keep his contacts under the name “Guyanese Brian”. Basra said “okay”, got out of the car, and walked away.
[9] Det. Cst. Lim was part of the surveillance team at the time of this first undercover transaction on August 28, 2021. He testified that he had a clear view of the side of the house at 30 Overskate and of the driveway in front of the house. He saw Basra at the side of the undercover officer’s car at 10:27 p.m. and saw him walk back to the house and up the driveway. At 10:29 p.m., Det. Cst. Lim saw two unknown persons and Basra come out from the general area at the front of the house. They stood by the garage. Basra then walked down the driveway and got into the undercover officer’s car. At 10:32 p.m., Basra got out of the car and walked up the driveway and towards the front door area of 30 Overskate.
[10] Later that night at 11:17 p.m., when Det. Cst. Sukhram had returned to the Drug Squad offices, he received a text message from Basra’s phone number. The text stated, “If u gave other guy make money gave him $300 … If u need other stuff I have 2/3 guys”. Det. Cst. Sukhram thanked Basra and told him that “I will call whenever I need”. A screen image of this exchange of text messages was filed as Exhibit 4. Det Cst. Sukhram testified that he understood this text message from Basra to be suggesting that Sukhram could make a $25 profit if he resold the opium and that Basra had “other stuff”.
(iii) The circumstances relating to the second sale of opium
[11] As noted above, it is admitted that the second sale of opium took place two days later, on August 30, 2021, and that the amount was just under 5 grams. This second transaction was arranged by text messages. As a result, there is a reliable record of what was said. After some pleasantries, Det. Cst. Sukhram stated, “looking for same stuff as last time … I can drive to you again … I need today.” Basra replied, “Today I have only half if u wait till Wed then full”. Det. Cst. Sukhram replied, “Half is good”, meaning 5 grams. He asked, “How much for half ” and Basra replied “150”. Basra told Det. Cst. Sukhram to come at 8:00 p.m. and to park “2/3 house from my home … Before my house u stop where turn” (see Exhibit 4).
[12] Det. Cst. Sukhram arrived at 30 Overskate Court at 8:04 p.m. and parked in the same spot as before, directly opposite the house. He had a good view of the front door, the garage, and the driveway. He texted Basra and stated, “I’m here.” Basra replied and told Det. Cst. Sukhram again to “park ur car 3/4 house back my home” (see Exhibit 4). Det. Cst. Sukhram saw Basra come out of the front door of the house and walk south on the street. Det. Cst. Sukhram drove his car further south to the point where Basra apparently wanted to meet. This second transaction took place at the open driver’s side window of the undercover officer’s car (as depicted in Exhibit 2, photo 31). Basra leaned in the window and told Det. Cst. Sukhram that he only had a “half order” but that he would be receiving “more product” later in the week. He also explained that he had “nosey neighbours” and he wanted Det. Cst. Sukhram to park farther from his house. Finally, he told Det. Cst. Sukhram, “if you buy more, you can sell to friends”, that the “more you buy, the better the price”, and that “later on in week text me, I help you out”. Basra than opened his hand, gave Det. Cst. Sukhram the drugs, and confirmed that the money he received was $150. Basra then walked away and Det. Cst. Sukhram drove off. Det. Cst. Sukhram agreed that this second sale of opium took place in plain view. Basra was not trying to conceal himself.
[13] Det. Cst. Lim made certain observations at the time of this second transaction on August 30, 2021. He was on the surveillance team and he saw Basra walk back up the driveway to 30 Overskate, after the transaction was completed. Basra walked through the open garage door. The garage door then closed about a minute after Basra had walked into the garage.
[14] Det. Cst. Nickerson was also part of the surveillance team on August 30, 2021. He was parked to the south of 30 Overskate, facing north, and he took photographs (see Exhibit 2). He could see the garage and the area at the front of the house, as depicted in photo 23, but he could not see the front door. The front door is at the north side of the house. Det. Cst. Nickerson observed Basra at the north side of the garage, in the area of the front door, and also saw him at the south side of the garage. These observations were made during the time period before the undercover officer arrived and parked at 8:04 p.m.
[15] At 8:11 p.m., Det. Cst. Nickerson saw Basra leave the area of the front door to the house at the north side of the garage, as depicted in photo 23. Basra waved to the undercover officer, who then moved his car two or three houses to the south. Det. Cst. Nickerson took photographs of Basra leaning in the driver’s side window of Det. Cst. Sukhram’s car (see photos 31 to 38). After the transaction was completed, Basra walked back to the north towards the house. Det. Cst. Nickerson ducked down in his car when Basra passed, so as not to be seen. As a result, Det. Cst. Nickerson did not make any observations of Basra’s return to the house. Det. Cst. Nickerson’s photos show other persons and other cars in the general vicinity, at the time of this second transaction.
(iv) The circumstances relating to the third sale of opium
[16] As noted above, the third transaction took place on September 9, 2021, ten days after the second transaction. The amount of this last sale was just under 20 grams, making it the largest of the three sales. By this point, the police had obtained a search warrant for 30 Overskate Court. This third transaction was arranged by text messages, as set out in Exhibit 4.
[17] After some initial pleasantries, Det. Cst. Sukhram stated, “I got some extra money saved. Can you do like two bags today and then my friends will give me more money tomorrow cause they want and will get more tomorrow.” Basra asked, “U need 2 full or half?” Det. Cst. Sukhram replied, “2 full”. Basra stated, “OK when u come”. He also stated that the price was “$275 each” but he offered to sell the 20 gram amount for $530. Det. Cst. Sukhram replied, “OK brother I appreciate that. Will grab more tomorrow cause my friends will have money by then.” Det. Cst. Sukhram asked Basra, “you will have enough?” Basra replied, “No problem u came from too far. OK no problem.”
[18] At 7:18 p.m., the undercover officer arrived and parked a little to the south of 30 Overskate Court. He sent a text message at 7:19 p.m. stating, “I parked up the street”. Basra replied, “coming”. Det. Cst. Sukhram saw Basra walk towards the car and get in the front passenger seat. After a short conversation, Basra pulled out two clear plastic ziplock bags from his pocket. They contained a brown substance. Det. Cst. Sukhram gave Basra $530 in police “buy money”. At this point, the undercover team arrived at the car and arrested Basra.
[19] Det. Cst. Lim handcuffed Basra and searched him incident to arrest. The officer seized a silver LG cell phone from Basra’s front pants pocket. The next day, September 10, 2021, Det. Cst. Sukhram did a phone test by calling the number he had been using to reach Basra. Det. Cst. Lim still had custody of the silver LG phone seized from Basra. It rang and displayed “Guyana guy”. Det. Cst. Lim answered the cell phone and spoke to Det. Cst. Sukhram.
(v) The search and seizures made at 30 Overskate Court
[20] The police entered the house at 7:26 p.m. through a side door that leads into the main floor kitchen. This door does not lead to the garage. There were six persons in the house, three adults and three young persons. They were placed in the living room. There was no one in the basement. Det. Cst. Lim recorded an “entry video” at 7:44 p.m., showing the state of the house prior to the search. This is an important piece of evidence as it shows the layout of the house and the general appearance of the rooms (see Exhibit 5). It shows that there is a kitchen and living room on the ground floor, and bedrooms and a bathroom upstairs on the second floor. There are a number of rooms in the basement, including a bathroom and kitchen and two rooms that were apparently bedrooms with mattresses on the floor. Most importantly, the “entry video” shows that there were two ways of accessing the basement. There is a door on the main floor of the house that leads to a staircase that goes down to the basement. This door was unlocked when Det. Cst. Lim opened it and went down to the basement. He did not recall whether it could be locked. Once in the basement, there is another door leading to a separate staircase that goes up to the garage. The only access to the garage from the house is through these two staircases that go to and from the basement.
[21] The search of the various rooms in the basement was carried out by three different officers. At the bottom of the staircase that descends from the main floor of the house, there is a main basement room. It had a bar area, a large table and eight chairs, a mattress on the floor, and a large number of suitcases and boxes. This main room did not appear to be used or occupied, from what I could see, except for storage. Det. Cst. Lim searched briefly in one suitcase and found nothing. Det. Lapensée searched the suitcases and boxes more thoroughly and found nothing. The “exit video” taken by Det. Cst. Lim shows that a lot of clothing was removed from these suitcases during the search. Det. Cst. Lim also searched in the basement kitchen, pantry, and storage room and found nothing. There were items on the shelves in these rooms, indicating that they were used, including for storage. Finally, Det. Cst. Lim searched in “room #10” in the basement. There were two mattresses on the floor, with a laptop computer on one of the mattresses. There were suitcases on the floor with clothing in the suitcases. Det. Cst. Lim found nothing relevant in this “room #10”. In particular, he found no identification or identifying documents. He did not search the laptop and he did not note whether the clothing in the suitcases was male or female. Outside the door to this room, there was a closet where a number of items were stored, including a pair of women’s shoes.
[22] The most significant room in the basement was “room #11”. It had distinctive bright blue walls, a box spring and mattress with a blue floral cover on the mattress, a dresser with drawers and shelves, a closet with a shelf at the top, a night table beside the bed, and chairs. There were various items on the shelves and on the night table and there was clothing in the dresser drawers and in the closet. In other words, this bedroom appeared to be used or occupied, from what I could see. Det. Cst. Metzger searched this room and found the following relevant items (Exhibit 3 contains the photographs that she took):
• on a dresser shelf, she found a black box that contained a lot of small personal items and a plastic ziplock baggie that contained 7.98 grams of opium (see Exhibit 3, photo 25 and Exhibit 1, para. 6);
• on another dresser shelf, she found a Diablo digital scale that was in working order and had no drug residue. There were a number of empty plastic ziplock bags on the shelf beside this scale (see Exhibit 3, photo 23);
• in one of the dresser drawers, she found clothing and a small white plastic case that contained 17.05 grams of opium stored in a clear plastic baggie (see Exhibit 3, photos 28 and 29 and Exhibit 1, para. 6);
• in the closet next to the dresser, she found a large pink box on the shelf above the clothes rack. The pink box contained a large ziplock freezer bag with 18 small “dime” baggies inside. Each of these small baggies contained opium with a total weight of 175.41 grams (see Exhibit 3, photos 16, 30, 31, and 32 and Exhibit 1, para. 6);
• on this same shelf at the top of the closet, she found another digital scale in a box. It was in working order and had no drug residue (see Exhibit 3, photos 14 and 27);
• on a hanger in the closet, she found a black “Wirelesswave” shopping bag. Inside the shopping bag, there was a digital scale that was not operational and a number of small clear plastic baggies. There was no drug residue inside the baggies (see Exhibit 3, photos 1, 14 and 16);
• on the shelf at the top of the closet, next to the pink box, she found $1,475 in Canadian currency. This money was not compared to the police “buy money” used in the first two undercover sales (see Exhibit 3, photo 2, and Exhibit 1, TAB H);
• between the mattress and the box spring, she found a white plastic shopping bag. It contained three sandwich-sized plastic ziplock baggies which contained both brown opium and black opium weighing 288.77 grams and 320.4 grams. The white plastic shopping bag was hidden underneath a flap of cardboard that appeared to have been torn or pulled back from the top of the box spring. In other words, Det. Cst. Metzger had to pull the mattress off the box spring and had to pull back the cardboard flap in order to find the white plastic shopping bag inside the box spring (see Exhibit 3, photos 3 and 4 and Exhibit 1, para. 6);
• the “exit video” showed a hamper of clothing in the closet, as well as the clothing that Det. Cst. Metzger removed from the dresser drawer or closet and that she had left on the floor. She could not identify any of these articles of clothing. There were apparently male belts hanging in the closet, an apparently male tie hanging on the wall beside the closet, a t-shirt hanging from the back of the door, and a blue jacket hanging in the closet (see Exhibit 6 and Exhibit 3, photos 2 and 16);
• she found some personal items on the top of the night table beside the bed, in particular, a “male style” wallet with nothing in it. The name “Harry Basra” was written or stamped on the edge of this night table. A red letter “B” was affixed to the mirror on the closet door (see Exhibit 6 and Exhibit 3, photo 6).
[23] The search of two upstairs second floor bedrooms was carried out by two officers. Det. Cst. Lim searched “room #16” and Det. Cst. Metzger searched “room #13”. Identification, opium, and money was found in both of these bedrooms. In “room #13”, Det. Cst. Metzger found a small amount of opium (5.15 grams) and an amount of Canadian cash ($6,875). The opium was in a clear “dime” plastic baggie which was inside a watch box, which also contained a watch. The watch box was in a dresser drawer (see Exhibit 3, photos 9 and 11 and Exhibit 1, para. 7). The cash was found in three locations in the bedroom: in a purple tin on the top shelf of a closet; in a backpack hanging in a closet; and in a white box in another closet (see Exhibit 3, photos 12, 15, 18, and 19 and Exhibit 1, TAB H). Det. Cst. Metzger also found what she called “debt lists” in the purple tin where she found some of the money. Describing what she found more objectively, they were five folded pieces of paper with lists of names, number amounts beside the names, and some check marks beside some of these names and numbers (see Exhibit 3, photos 12, 13, and 17). The identification in this bedroom was in the names of Gurminder Singh Grewal and Karamjit Kaur Grewal. It included a health card, mail, and a passport. Separate pieces of mail were addressed to each of these two persons at the 30 Overskate address (see Exhibit 3, photos 7, 8, 21, 22 and 24).
[24] The second upstairs bedroom, “room #16”, was searched by Det. Cst. Lim. He found a larger amount of opium and significantly more money in this bedroom. The opium was in two locations. Det. Cst. Lim found the first amount of opium in a black leather “Coach” satchel hanging at the back of a large walk-in closet. Inside the satchel, there was a folded clear plastic bag containing 18.58 grams of opium (see Exhibit 3, photos 45 and 56 and Exhibit 1, para. 8). There were a lot of clothes hanging in the closet and the satchel was behind the clothes. There was identification in this “Coach” satchel in the name of Bhupinder Singh Grewal (an Ontario driver’s license with the Overskate address and a cheque book with the same 416-904-9979 phone number for “Pinda” that Det. Cst. Sukhram had tried to call). There was also a cheque book in the name of Prabhjot Kaur Grewal in this same “Coach” satchel (see Exhibit 3, photo 63).
[25] Det. Cst. Lim found another black leather shoulder bag in the same walk-in closet. This bag was marketed under the name “Calvin Klein”. In this second shoulder bag or satchel, there was a brown leather wallet with an Indian driver’s license in the name of Bhupinder Singh Grewal and a letter apparently sent to him at an address in India (see Exhibit 3, photos 46, 47, 48 and 49). There was also a key in this second satchel. The key was to a safe that Det. Cst. Lim found in the same walk-in closet. In the safe was $28,150 in Canadian currency and $260 in U.S. currency. It was in bundles, held with elastic bands, and in small bills (see Exhibit 3, photo 44 and Exhibit 1, TAB H). There were also three passports in the safe, as well as jewelry. The three passports were in the names of Prabhjot Kaur Grewal and her two children (see Exhibit 3, photos 38, 39, 54 and 55).
[26] Finally, Det. Cst. Lim found a white plastic shopping bag in a small storage space in the same walk-in closet. There was a door inside the walk-in closet that led to this small storage space. Inside the white plastic shopping bag, there was a large clear ziplock plastic bag that contained a number of small “dime” baggies. Inside some of the “dime” baggies there was opium and others were empty. The total weight of this second amount of opium found in “room #16” was 49.79 grams (see Exhibit 3, photos 51, 52, and 53 and Exhibit 1, para. 8).
[27] There was a third bedroom on the second floor, referred to as “room #14”. Nothing of relevance was found in this bedroom, which was searched by Det. Cst. Metzger. The only identification that was found in the house was in the two second floor bedrooms (“room #13” and “room #16”). No identification was found in the basement.
(vi) The testimony of Prabhjot Kaur Grewal
[28] After the discovery of the opium and the Canadian currency in the two upstairs bedrooms, the police arrested and charged Gurminder Singh Grewal, Karamjit Kaur Grewal, and Prabhjot Kaur Grewal. Gurminder and Karamjit, who appeared to reside in “room #13”, were present in the house when the police first entered. Prabhjot, who appeared to reside in “room #16” with Bhupinder Singh Grewal, arrived at the house during the search. Bhupinder was not present at any point. The Crown advised me that the charges against the Grewals were all stayed, shortly before the preliminary inquiry, when the three accused provided statutory declarations explaining the opium and money that was found in their bedrooms.
[29] The Crown called Prabhjot Kaur Grewal as their last witness. I will refer to her as Prabhjot, given that there are four adults named Grewal who are involved in this case. Prabhjot came to Canada in 2002 and she married Bhupinder in 2004, after they had met in India at an arranged marriage. She is now a Canadian citizen. She and Bhupinder had two children and the family moved into the home at 30 Overskate in 2016. In September 2021, when the search warrant was executed, Prabhjot’s brother-in-law Gurminder and his wife Karamjit also lived at 30 Overskate. They all lived upstairs, occupying the kitchen, family room, and living room on the main floor and the bedrooms on the second floor. They did not occupy the basement.
[30] Prabhjot testified that they rented the house at 30 Overskate. Her husband Bhupinder paid the rent. He worked at two jobs, owning and operating a pizza business in Bradford and also sending news reports to an Indian media company. Prabhjot worked in the home, raising the children, cleaning the house, and cooking the meals. Her husband Bhupinder had rented the basement to “Harminder Singh” (who she identified in court as the accused Basra). A friend of Bhupinder had asked him to rent to Harminder Singh. This rental of the basement began about a month before Bhupinder left for India. Prabhjot testified that Bhupinder had been away in India for about a year, by the time the police executed the search warrant in September 2021. He left for India because of the pandemic and did not return until a few days after Prabhjot was arrested in September 2021.
[31] According to Prabhjot, the basement was empty and unoccupied when they first leased the house in 2016. They stored a spare mattress and a dining room table and chairs in the basement, but it was otherwise unused. Harminder Singh was the first and only tenant who occupied the basement. He must have moved the other furniture and belongings that were found into the basement. Prabhjot did not see what Harminder Singh brought because he would enter the basement through the garage. There were two exterior entrances to the garage – a side door and the garage door – and Harminder Singh used these two entrances in order to access the basement. There was also access to the basement from the house and Harminder Singh would occasionally come up the stairs leading to the main floor and exit the house through the front door. But he never used this entrance through the house in order to get to the basement. None of the main floor and upstairs occupants went downstairs to the basement. Prabhjot stayed with the children on the main floor and upstairs.
[32] Prabhjot testified that Harminder Singh would initially just “come and go” from the basement, when he first rented it. However, by the time of the arrests and search in September 2021, Harminder Singh had been living in the basement full time for about three or four months. He would sometimes come upstairs to get bread or food but he would take it back downstairs and would not eat meals with the Grewal family. Prabhjot would see Harminder Singh outside on a few occasions, and she once saw him outside with another male when she was taking out the garbage. Prabhjot testified that no one else was living in the basement, except for Harminder Singh.
[33] Prabhjot gave extensive testimony about the opium found in two locations in her bedroom (“room #16”) and about the money found in a safe in her bedroom. She was also cross-examined extensively on the account she gave “under solemn affirmation” in a statutory declaration, after she was charged, explaining the opium and the money. She testified that the money in the safe was hers and that it was given to her by her husband Bhupinder in weekly amounts of $100 or $200 over a number of years. Her husband told her that it came from tips received at the pizza business. The money was in small denominations and once it accumulated, Prabhjot would bundle it with an elastic band. She kept it in the safe with her own jewelry and her sister-in-law’s jewelry (see Exhibit 3, photos 35, 36, 41 and 44). She would use the money, as needed, for household expenses and she would otherwise save it. She testified that this is a common practice in India, which was followed by her parents, because nobody keeps money in banks. Since the arrest and search, Prabhjot now keeps her money in the bank. There was considerable uncertainty, and some inconsistency, as to when Bhupinder sold the pizza business and when this practice of Prabhjot receiving tips from the business came to an end.
[34] Prabhjot’s account of the opium found by the police in her walk-in closet, during examination-in-chief, was that she had no knowledge of it, she had never seen it, and she did not know that it was there. In cross-examination, she began by testifying that people “back home” use opium, that she did not know whether anyone in the family uses opium, and that it would be a “complete surprise” to her if anyone in the family did use opium. She was then confronted with her statutory declaration in which she affirmed that opium use is “very common” in India, that such use was “normal” in Bhupinder’s family, that Bhupinder himself “has used opium while in Canada”, but that she never saw opium in their “current residence”. She agreed that these prior statements were true. She went on to testify that the clothes in the closet were mainly her husband’s but that she kept some of her clothes and her children’s clothes in the closet. She insisted that she never saw the opium in the closet. She suggested that her husband must have left the opium in the closet when he went to India, a year before the arrests and the search. She then testified that she never used the closet after her husband left and went to India, and that she would only go upstairs to the bedroom in order to sleep. She agreed that her two children also slept in this same bedroom, where there were two mattresses. She testified that she did not want opium in the bedroom. She also agreed, in cross-examination, that the women’s shoes that the police found in the basement were hers. She explained that she had stored them in that location before the basement was rented to Harminder Singh and that she had never gone down to see if they were still there. Some of this testimony during cross-examination was inconsistent, improbable, and defensive.
C. ANALYSIS
[35] The law of possession that applies to Count 4 in the Indictment is straightforward. Basra was clearly not found in personal possession of the opium that the police seized in “room #11” at 30 Overskate on September 9, 2021. Therefore, the Crown must prove that he was either in constructive possession or in joint possession of the drugs. Both of these forms of possession require proof of knowledge and a measure of control. See: R. v. Morelli (2010), 2010 SCC 8, 252 C.C.C. (3d) 273 at paras. 15-17 (S.C.C.); R. v. Pham (2005), 2005 CanLII 44671 (ON CA), 203 C.C.C. (3d) 326 at paras. 12-18 (Ont. C.A.), aff’d (2006), 2006 SCC 26, 209 C.C.C. (3d) 351 (S.C.C.); R. v. Terrence (1983), 1983 CanLII 51 (SCC), 4 C.C.C. (3d) 193 (S.C.C.); R. v. Beaver (1957), 1957 CanLII 14 (SCC), 118 C.C.C. 129 at pp. 140-141 (S.C.C.).
[36] The element of knowledge of the character of the drugs is relatively easy to resolve, if the Crown can prove that Basra had a measure of control. Basra was admittedly an opium trafficker who had been carrying out acts of trafficking from the house at 30 Overskate during the days leading up to and including September 9, 2021. If he had a measure of control over the drugs in “room #11”, it can be inferred from his recent and ongoing sales of opium to the undercover officer that he must have known the character of these particular drugs. See: R. v. Lepage (1995), 1995 CanLII 123 (SCC), 95 C.C.C. (3d) 385 at paras. 33-38 (S.C.C.).
[37] There is also no issue, if possession of the drugs in “room #11” can be proved, that they were possessed for the purpose of trafficking. This element of the offence is admitted (see Exhibit 1, para. 6).
[38] Accordingly, the real issue in dispute in relation to Count 4 is whether Basra had a measure of control over the opium found in “room #11”. The defence submits that the Crown has not proved that Basra occupied “room #11”, as opposed to occupying some other bedroom in the house. Even if Basra did occupy some other bedroom in the house, but had access to “room #11”, the defence further submits that there were other potential opium traffickers residing at 30 Overskate and they might reasonably have had possession of the drugs in “room #11”. In all these circumstances, the defence position is that Basra’s possession of the drugs in “room #11” is not the only reasonable inference from the totality of the circumstantial evidence. See: R. v. Villaroman (2016), 2016 SCC 33, 338 C.C.C. (3d) 1 at paras. 18 and 30-43 (S.C.C.).
[39] In my view, the most important items of direct and circumstantial evidence relating to whether Basra resided in “room #11”, and whether he had a measure of control over the opium found in that bedroom, are as follows:
• first, Basra undoubtedly resided in the house at 30 Overskate Court on September 9, 2021. He repeatedly referred to it as “my home” and “my house” in his text messages with the undercover officer. In addition, he was repeatedly observed coming from the house and returning to the house during the relevant time period. Finally, Prabhjot Grewal testified that he had resided at the house for the three or four month period prior to the search. Although her evidence was lacking in credibility on some points, she was corroborated on this particular point by the above summarized body of reliable evidence;
• second, Basra undoubtedly had access to a supply of opium that was being stored at 30 Overskate Court and that he used for the purpose of trafficking. At the time of all three undercover sales of opium, he emerged from the house. Indeed, at the time of the initial August 28, 2021 sale, he first met with the undercover officer in order to confirm their agreement. He then returned to the house after saying that he had to “get product from his home”. Thereafter, he asked the undercover officer not to park near his home. In addition, at the time of the second sale he texted the undercover officer and stated, “Today I only have half if u wait till Wed then full”. When they met at the undercover officer’s car, Basra explained that he would be getting “more product” later in the week. When the undercover officer contacted Basra ten days later, on September 9, 2021, he asked for “2 full” orders (20 grams), which Basra now had available. The undercover officer also asked if he could “grab more tomorrow … then you will have enough?” Basra replied, “Ok no problem”. In all these circumstances, it is apparent that Basra had access to a reasonable amount of opium that was stored at the Overskate house and that he used for the purpose of trafficking, by the time of the September 9, 2021 search;
• third, there were two potential sources of opium being stored in two upstairs bedrooms at 30 Overskate Court (“room #13” and “room #16”). However, there is compelling evidence that these two rooms were under the control of the two Grewal brothers and their wives. There is no realistic evidence inferring that Basra had access to either of these rooms. In addition, the amount of opium in “room #13” was too small (5.15 grams) to be a realistic source of supply for the transactions that Basra was completing and planning with the undercover officer. Finally, I am satisfied from all the evidence that Bhupinder Singh Grewal controlled the 68.37 grams of opium in “room #16” and that he was away in the relevant time period, and had been away in India for a year. In all these circumstances, I am satisfied that the two potential sources of opium being stored in “room #13” and “room #16” was not Basra’s source of supply during the relevant time period;
• fourth, the only other source of supply being stored at 30 Overskate Court, that Basra could have accessed at the time of his three completed transactions and his planned further transactions with the undercover officer in August and September 2021, was the opium found in “room #11”;
• fifth, there is evidence inferring that it was Basra who occupied “room #11”. The room appeared to be occupied by someone because it contained clothing and personal items. The name “Harry Basra” was written or stamped on the night table beside the bed. The letter “B” was attached to the mirror on the closet door. The clothing appeared to be male. The occupant appeared to be an opium trafficker because he kept operable digital scales, plastic baggies, and a trafficking amount of opium in the room (which were all the kinds of items that Basra had recently used). After completing the second sale of opium on August 30, 2021, Basra returned to 30 Overskate by walking through the open garage door, which then closed behind him. This point of entry leads directly to the basement and not to the main floor or upstairs of the house. Finally, Prabhjot Grewal testified that Basra occupied the basement and that he would enter through the garage. Once again, I have concerns about her credibility but this aspect of her testimony was corroborated by the above summarized body of reliable evidence. The totality of all this evidence infers that Basra occupied “room #11”;
• sixth, even if others such as the Grewal brothers had some degree of control over the opium being stored in “room #11”, I am satisfied that they would only have stored such a large and valuable amount of opium in Basra’s bedroom with his knowledge and consent. See: R. v. Bains and Pannu (2015), 2015 ONCA 677, 328 C.C.C. (3d) 149 at para. 157 (Ont. C.A.). In addition, by knowingly allowing others to store opium in his bedroom Basra was exercising a degree of control himself, or he was aiding and abetting the possession of others. See: Re Chambers and the Queen (1985), 1985 CanLII 169 (ON CA), 20 C.C.C. (3d) 440 at pp. 446-449 (Ont. C.A.); R. v. Lights, 2020 ONCA 128 at para. 98. Finally, by accessing and selling opium that others may have had some degree of control over, Basra was either personally or jointly in possession of the opium. See: R. v. Pham, supra at para. 26 (Ont. C.A.), aff’d supra (S.C.C.); R. v. Glasner, 2022 ONCA 65 at para. 18.
[40] For all the above reasons, I am satisfied that Basra occupied “room #11” and that he exercised a measure of control over the 809.61 grams of opium found in that room. This is the only reasonable inference to be drawn from the totality of the evidence. Accordingly, Basra is guilty on Count 4. The fact that Basra was sometimes seen entering or emerging from the area of the front door to the house at the time of the opium sales to the undercover officer, together with all the other evidence concerning the Grewal brothers, raises a reasonable possibility that others may have been involved in Basra’s opium trafficking from the residence at 30 Overskate Court. As a result, I cannot find that Basra was exclusively or solely in constructive possession of all the opium in “room #11”. As in Pham and in Glasner, it may well have been joint possession. This may have some impact at the time of sentencing.
[41] Finally, Count 6 alleges possession of proceeds of crime in relation to $1,475 that was also found in “room #11”. I am satisfied that Basra was in possession of this money found in his bedroom. However, it is not an inordinately large amount of cash, it was not stored in a manner or place indicative of trafficking, there is evidence that storing cash at home and not in a bank is a common practice in the accused’s community, and the police did not compare the serial numbers of the seized money to the police “buy money” used in the two earlier opium transactions. In all these circumstances, there is reasonable doubt as to whether the money was proceeds of crime. Accordingly, Basra is not guilty on Count 6.
D. CONCLUSION
[42] For all the above reasons, Basra is found guilty on Counts 1, 2, 3, 4 and 5, but not guilty on Count 6. There will be convictions entered on the first five counts.
[43] I would like to thank all counsel for the efficient and effective way in which they conducted this trial and for their helpful submissions.
M.A. Code J.
Released: November 30, 2023
COURT FILE NO.: CR-23-90000013-0000
DATE: 20231130
ONTARIO
SUPERIOR COURT OF JUSTICE
HIS MAJESTY THE KING
– and –
HARMINDER SINGH BASRA
Accused
REASONS FOR JUDGeMENT
M.A. Code J.
Released: November 30, 2023