



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Basha, 2019 ONCA 236

DATE: 20190325

DOCKET: C64594, C64966

Roberts, Trotter and Paciocco JJ.A.

BETWEEN

Her Majesty the Queen

Respondent
(Appellant on Crown Sentence Appeal)

and

Valdrin Basha
and Anton Dokaj


Appellant

(
Respondent
on Crown Sentence Appeal)

Michael Crystal, for the appellant

Christa Reccord and James Sutton, for the respondent

Heard: March 20, 2019

On appeal from the ruling of, and convictions entered by,
    Justice Paul B. Kane of the Superior Court of Justice on October 2, 2017, with
    reasons reported at 2017 ONSC 5897 and 2017 ONSC 4910, and from the sentence
    imposed on January 19, 2018.

REASONS FOR DECISION

[1]

Mr. Valdrin Basha was convicted by a Superior Court of Justice after a judge
    alone trial of: one count of possession of cocaine for the purpose of
    trafficking, one count of possession of crack cocaine for the purpose of
    trafficking, one count of possessing proceeds of crime, and another of breach
    of probation. These charges arose out of the execution of search warrants on
    July 15, 2014, related to an ongoing drug investigation. Mr. Basha also pleaded
    guilty to a count of simple possession of cocaine found on his person when he
    was subsequently arrested.

[2]

Mr. Basha appeals his convictions. He argues that the trial judge erred
    in denying his application for a stay pursuant to s. 11(b) of the
Charter
,
    and he contends that the trial judge committed errors in applying the law of
    reasonable doubt  essentially arguing that the convictions were unreasonable.
    He also urges that his conviction of possession of the drugs found within a
    residence is inconsistent with his acquittal of possession of firearm charges
    relating to a firearm also found within that residence.

[3]

The Crown resists the conviction appeal, and is appealing the sentence
    of two years less a day, plus three years of probation, that Mr. Basha
    received.

[4]

We would dismiss both Mr. Bashas conviction appeals and the Crowns sentence
    appeal.

THE CONVICTION APPEALS

[5]

The trial judge rejected Mr. Bashas s. 11(b) application, concluding
    that the
Jordan
ceiling was not exceeded. The trial judge further held
    that in this transitional case the Crown reasonably relied upon the pre-
Jordan
law and then made reasonable efforts to adapt to the
Jordan
standards
    after the
Jordan
decision was released.

[6]

The trial judges finding that the
Jordan
ceiling was not
    exceeded depends on his conclusion that this ceiling does not include time for judicial
    deliberation. There is no need to address this issue to resolve this appeal.

In our view, even if the
Jordan
ceiling was exceeded, the trial
    judge was entitled to consider the delay to be reasonable in this transitional
    case.

[7]

Prior to the release of the
Jordan
decision, the trial in this
    matter had already been scheduled. The trial was set to conclude approximately
    29 months after the charges were laid, with the first 22 months of that period
    falling within the
Morin
period.

[8]

The Crown has satisfied us that during the pre-
Jordan
period, it
    reasonably relied on the law as it previously existed. The Crowns belief that
    the case was progressing as required by s. 11(b) was vindicated when, on the
    eve of the trial, Mr. Bashas first s. 11(b) application failed.  The application
    judge found that the delay in the case to that point related to both the
    inherent time requirements of the case and institutional delays, and that
    prejudice to Mr. Basha was minimal. Mr. Basha does not appeal those findings,
    and has made clear that the basis of his current appeal is the extended length
    of the trial and the period of deliberation after final submissions.

[9]

The question in this transitional case is therefore whether the Crown
    discharged its obligation post-
Jordan
to ensure that
Jordan
standards
    were respected. In our view, the Crown has done so.

[10]

When
Jordan
was decided, the trial dates had already been set and the trial
    was expected to conclude within the presumptive 30-month ceiling. There was no
    need for the Crown to attempt to take steps to move the case forward. Nor do we
    accept Mr. Bashas submission that the Crown alone bore responsibility for
    underestimating the trial time. The parties underestimated the trial time,
    which naturally and inevitably will cause additional delay.

[11]

When
    it became apparent during the trial that the trial estimate was inadequate, the
    Crown undertook reasonable steps to attempt to expedite the matter. These steps
    included alerting the court, obtaining extended sitting hours, and securing prompt
    continuation dates, even though these dates were not available for the lead
    Crown.

[12]

In
    these circumstances, in this transitional case, the trial judge was entitled to
    find the delay was reasonable.

[13]

We
    therefore reject the s. 11(b) ground of appeal.

[14]

We
    also reject Mr. Bashas challenge to the reasonableness of the trial judges
    findings of guilt. The evidence linked Mr. Basha solidly to the two locations
    where the narcotics were found  a residence that was clearly a stash house, as
    well as a motor vehicle belonging to Mr. Basha.

[15]

Surveillance
    evidence showed that Mr. Basha frequented and slept occasionally at the stash
    house, and engaged in acts near the stash house consistent with the sale of
    narcotics. Keys to the stash house, and to a safe in the stash house that
    contained narcotics, were found in his possession. His personal documentation
    was also found in one of the bedrooms. On this record, even though others were
    connected to the stash house and Mr. Basha was securing drugs at the residence
    for his own use, the trial judge was entitled to find that he was in joint
    possession for the purpose of trafficking of all of the narcotics found in the
    residence.

[16]

With
    respect to the motor vehicle, Mr. Basha was not only the owner of that vehicle,
    but also the driver and its sole occupant when it was last operated prior to
    the search. The cocaine found in the vehicle was in quantities and packaging
    more consistent with trafficking than personal use. In the context of all of
    the evidence, the trial judge was entitled to find that he possessed these
    narcotics for the purpose of trafficking.

[17]

Given
    Mr. Bashas role in selling drugs, his ongoing control over the vehicle, and
    the joint nature of the drug enterprise, evidence that on an earlier occasion
    another unknown person accessed the area of the vehicle where the drugs were
    ultimately found is not of such importance that the trial judge was beholden to
    address it.

[18]

Nor
    has Mr. Basha persuaded us that the finding of his possession relating to the
    narcotics in the stash house produced a verdict inconsistent with his acquittal
    of possession charges relating to a sawed-off shotgun recovered from one of the
    bedrooms in the stash house. In context, Mr. Bashas conduct easily demonstrated
    his knowledge and control over the narcotics in the stash house. The trial
    judge was entitled to find that, by contrast, there was insufficient evidence connecting
    him to the firearm in a bedroom in the stash house that he was not linked to directly.

THE CROWN SENTENCE APPEAL

[19]

The
    sentence imposed was very lenient given the quantity of drugs and Mr. Bashas
    prior related record.  The maximum reformatory sentence the trial judge imposed
    of two years less a day, followed by three years of probation, is outside the usual
    sentencing range for trafficking in cocaine and crack cocaine. However, as
R.
    v. Lacasse
, 2015 SCC 64, [2015] 3 SCR 1089, makes clear, imposing a
    sentence outside of the usual range is not a self-standing sentencing error.

[20]

The
    material questions are whether the sentence was demonstrably unfit, or the
    trial judge committed any errors of principle that affected that sentence.

[21]

In
    the unusual circumstances of this case, we do not find the sentence to be
    demonstrably unfit. The trial judge, having had the benefit of the full
    evidence in the case, including many hours of surveillance tapes, concluded
    that Mr. Basha was not a principal in the drug trafficking enterprise. He was
    an addict who, despite his work in carrying, distributing and selling drugs
    belonging to others, remained of modest financial means. A refugee traumatized
    by the horrors of a war-torn Kosovo, he began his life in Canada as a young
    teenager, isolated and troubled. He turned to drugs, and his addiction led him
    to become involved in drug trafficking.

[22]

As
    he was entitled to do, the trial judge accepted evidence that during the three
    years Mr. Basha awaited trial, he made significant rehabilitative gains,
    supported by family and health care professionals. At the time of sentencing,
    his addiction was under control, he was gainfully employed, he was leading a
    pro-social life, and his common-law partner was expecting a child.

[23]

In
    an effort to craft a deterrent and denunciatory sentence that could capitalize
    on Mr. Bashas rehabilitative efforts, the trial judge imposed the sentence he
    did. Given the trial judges findings relating to the secondary role Mr. Basha
    played in the drug trafficking operation and Mr. Bashas personal circumstances,
    and the admonition that we show deference to a trial judges sentencing
    decision, we cannot say that the exceptional sentence the trial judge imposed in
    this case was manifestly unfit.

[24]

Nor
    has the Crown persuaded us that the trial judge committed any errors of
    principle that affected the sentence. He understood the importance that
    denunciation and deterrence must play in Mr. Bashas sentencing, describing how
    he was bound to apply these principles. He was mindful of the aggravating
    factors and was entitled to accept mitigating evidence.

[25]

The
    sentence appeal is therefore dismissed.

CONCLUSION

[26]

We
    dismiss Mr. Bashas conviction appeals, and give leave to the Crown to appeal
    his sentence, but deny that sentence appeal.  We affirm Mr. Bashas convictions
    and the sentence imposed.

L.B. Roberts J.A.
G.T. Trotter J.A.
David M. Paciocco J.A.


