R. v. Basha
Newfoundland Provincial Court
Judgment: November 3, 1978
Docket: None given.
Counsel: David Day, for Crown
Raymond Halley, for Accused
1 Two counts of conspiracy. One - to conspire to traffic in marijuana (cannabis marijuana)
contrary to Section 423(1)(d) of the Criminal Code of Canada. Two - to conspire to traffic in
hashish (cannabis resin) contrary to Section 423(1)(d) of the Criminal Code of Canada.
2 The accused pleaded "Guilty" to both counts and has been in custody since June 25th/78.
From the large brief received from Mr. Day, the prosecutor, the Court has now a very clear idea
of this offence, and the part played by the defendant in it. Likewise, from the brief presented by
Mr. Halley, the defense counsel, the Court is aware of Mr. Basha's background and
circumstances. I thank both counsel for their very fine efforts in this regard.
3 This was by any standards, a sophisticated and organized ring of drug traffickers. The
defendant is recognized by this Court as the principal conspirator, being the organizer, adviser
and major profiteer in the conspiracy's illegal profits. The ratio decidendi of the Greenfield case
will be borne in mind therefore in this sentence. Paraphrased it means that different sentences
ought to be applied to match the differing roles in the conspiracy of each conspirator, and not
dependent upon what time a person joined the conspiracy but dependent upon what part he
played in furthering it.
4 The activities of the conspirators were discovered by the police by visual surveillance,
interception of private communications, and seizures, over a period of approximately ten months.
In round figures the profits to the organization was $300,000.00 for trafficking in 843 lbs. of
marijuana and 41 lbs. of hashish during this 10 month period. Mr. Basha who is the ringleader
was however at the back-end of the deal, receiving the major share of profits, and not dealing
directly with the "pushers" or "users" and very seldom touching the cannabis in any way.
5 In deciding upon a fit and proper sentence in such a case as this, one must have regard to the
sentences being handed down by the Courts of Appeal in this province and in other Canadian
provinces, so that where possible a uniformity of sentencing is applied. It should be the
expectation of every citizen of Canada to be treated the same as his fellow citizens whether he
lives in Whitehorse in the Yukon, or Toronto, Ontario, or St. John's, Newfoundland.
6 Disparity of sentences for similar offences and similar persons with similar backgrounds has
to be guarded against. Nothing appears so unjust as to have a person sentenced in one part of the
nation (with everything being equal) to a severe or lenient sentence while his counterpart in
another part of the country receives a totally different sentence. I state this because there is the
danger of the sentencing judge or magistrate being unduly influenced by his own zealousness
and hatred of the crime committed.
7 It is also worth remembering that sentences for trafficking in cannabis, or conspiracy to do
so, were more severe a decade and more ago in this country than they are today. I believe one
important reason for this change of view is that more information or education is available on
just what cannabis is, and what its effects are. The LeDain Commission Report of 1972, plus
many other scientific papers has contributed to this knowledge. For example, there was a useful
symposium in Toronto in 1973 in which papers were presented by eminent medical persons on
the effects of not only cannabis, but also of alcohol and the chemical drugs and barbiturates.
8 I believe it safe to say that cannabis is used today (illegally it is true) by a fairly large
proportion of society. Furthermore from the aforesaid commission and other scientific journals,
one can conclude that cannabis is not habit forming, or a cause of dangerous behaviour to the
user or to others whom he may come in contact with. It is nothing like heroin, P.C.P., L.S.D.,
speed and others. However, this is not to say that no danger exists from its use. It has been stated
by medical people (Dietrich Blumer, Harvard Medical School) for one that, "Violence seldom
appears associated with marijuana use. The term 'getting stoned' is idiomatic for the drug's
tendency to induce a degree of immobilization and lethargy. However, the pacifying effect of
marijuana has not been definitely demonstrated. It does not seem to suppress battle readiness.
THC (Tetrahydro Cannabinol) in high concentration may lead to unpredictable aberrant
behaviour, and if an individual suffers a 'bad trip' unpredictable behaviour may occur."
9 James G. Rankin of Toronto University, Dept. of Medicine, Addiction Research Foundation
in a paper to the Symposium already referred to concurs with Dr. Campbell of England that
Cerebral Atrophy occurs in chronic users of cannabis, resulting in loss of memory and higher
cerebral functions. Enough said then about the dangerousness of the substance.
10 The cases cited by counsel are noted, and I have taken it upon myself to canvass other
cases heard quite recently to see how the sentences range throughout Canada and England. It
seems fairly safe to say that for the offence of trafficking, or conspiracy to traffic in cannabis, a
prison term is usual. This is said to be for the purpose of emphasizing deterrence, both the
accused's deterrence and others who may be inclined to do likewise.
11 The deterrent aspect in sentencing for trafficking in cannabis is the paramount one, over-
riding the reformative and repudiation aspects, but all three being the means whereby the
protection of society is attained. The Protection of Society is the principal purpose of the
criminal process so we are told in cases such as Wilmott, Morrissette, Grady and many others.
12 What are the public being protected from in a cannabis trafficking case, or a conspiracy to
traffic case? The crime in the usual sense is victimless. Those who use cannabis are not
compelled to do so. It is a choice that users have to buy the illegal substance or not. However, I
would suggest the public, the great mass of law abiding, tax paying individuals who do an honest
day's work for what they earn have a right to be protected from these individuals who choose to
go outside the law, and deal in illegal substances for a very high profit. These law breakers thus
flaunt the laws of the nation, gaining high monetary profits, which are obviously not taxable, and
at least spread around their communities an illegal substance for users, and to tempt non-users as
well, so that we have it used right at the elementary school level. And as remarked before,
though not dangerous like P.C.P., L.S.D., and speed, nor habit-forming like heroin, it is
dangerous to the brain and maybe other tissues of the body when used too frequently.
13 Defense counsel remarked in his oral submission on sentence that the trafficking of
cannabis is not so different from the trafficking of alcoholic liquor during prohibition. There may
be a great deal of truth in that. It was only a little over a half century ago that it was illegal to
consume alcoholic beverages in the U.S.A.; Canada and Newfoundland had their share of partial
or total prohibition too. If I recall rightly those who were classed as "rum runners", and those
who bought from them on the grand scale were severely dealt with also.
14 I don't think there would be too much difficulty in obtaining statistics today to show that
the great majority of crimes of violence, and especially homicide are the result of alcohol abuse.
That it is more dangerous to the person who over indulges, than cannabis say was most
emphatically agreed upon by medical scientists at the Toronto Symposium of 1973. Nevertheless
alcohol is legal and cannabis is not; and while this may seem ridiculous, at first blush, on
reflection it may not be. Why offer another drug of dubious reputation to the public and thus add
more problems to the social fabric? In any event this is not my concern. I have to administer the
law as it now exists, but knowing very well that total social disapproval for this crime does not
exist - I refer to an important case on sentencing in this area, R. v. Fairn, noted at the outset in
which O'Hearn, Nova Scotia County Court Judge at Halifax, speaking about social disapproval
of a crime at page 427 of the report, says, (of a possession case),
How operative is social disapproval on the drug scene? My own reading is that the
celebrated generation gap is almost fully effective here to multify [sic] social
and further on the same page he says,
Can the courts bolster social disapproval by treating these offences very seriously? I think
they can, but again the fact that society is divided between generations on this topic
lessens the weight that legal penalties would usually have in such reinforcement... What
the young observe is middle aged or elderly judges who are inexperienced in the use and
abuse of drugs, imposing their opinions by force of law upon the young, who are in this
case the more experienced in the actual use and effects, or at least think they are.
Certainly most judges who have to deal with drug cases try to explore the medical and
social background of this trend much more thoroughly than the users. Despite this, the
appearances are such that social disapproval is not at present a very effective force in
countering the drug subculture.
15 I should now like to refer to some of the cases on sentencing as to the quantum of sentence
imposed. In Johnston & Tremayne the conspirators received seven and ten years in the Ontario
Court of Appeal, which cut down the trial court's sentence of fourteen (14) years. It was
remarked by then Chief Justice Gale that it was at that time the largest amount of cannabis ever
involved in a drug case in Canada - It was by today's cases a mere 150 150 lbs. packed in bongo
drums. I think this case is important to show what a sentence could be for a so called exemplary
sentence imposed on people conspiring to traffic, and in one case importing cannabis into
Canada. That case was decided in 1970, and was at that time a large amount of cannabis. Even
then, Chief Justice Gale rightly distinguished between a sentence for trafficking in heroin as
compared to cannabis. In that case he more or less put a fourteen (14) year ceiling on cannabis
16 What are today's sentences? In Crevier which was a conspiracy to traffic in marijuana,
sentences of twelve (12) months to eighteen (18) months were imposed on four (4) accused
where the amount was fifty (50) lbs.
17 In Puffer, where there was the beginning of a substantial operation sentences of twelve
months definite and twelve months indefinite were imposed.
18 In Kowlyk, a possession for the purpose of trafficking case, a sentence of eighteen months.
19 In Carrier, a conspiracy to traffic in cannabis case, four years.
20 In O'Neill, a possession for the purpose of trafficking in hashish, (twelve pounds) a
sentence of eighteen months.
21 In Spraguetal the defendants received two years less a day who were found with six bricks
of marijuana, and there was a commercial enterprise.
22 There is also a great deal of sentence canvassing in Mr. Ruby's book on sentencing,
particularly from pages 463 to 471.
23 Finally one English case, D.P.P. v. Dootetal, a case of conspiracy to traffic in cannabis,
both marijuana and resin, a substantial enterprise which really amounted to importation from
Morocco and Belgium into England by several United States citizens. Sentences were not
appealed against in the House of Lords, only the convictions. The convictions were upheld, but
sentences ranged from thirty-three months down to eighteen months. These lightish sentences
were remarked upon by the law lords as being lenient.
24 Bearing in mind the principles of sentencing already referred to what are the mitigating and
exacerbating factors in this case?
25 First, as to the latter, this was an offence with a great degree of, (a) premeditation; (b) great
financial rewards; (c) it was highly organized; (d) added a great deal of an illegal substance to
society's use, thus creating more crime.
26 The mitigating factors to be considered are, (a) Plea of Guilty, thus a saving of public
expense for a long trial. However the evidence here was so strong that it would seem to be the
only thing to do. Nevertheless it should be considered; (b) a good work record, and almost a
crime free past, except for a possession of cannabis charge in 1970. There were two other
criminal convictions for a driving offence, possession of a firearm in 1967 and 1971 but these
will not be considered adversely to the accused in this sentence; (c) Custody in prison awaiting
disposition. In custody since June 25, 1978, thus being in custody with no time allowed for
remission, and apart from those serving sentences. Some four and a half months (4-1/2).
According to the R. v. Gravino case and Arlenna & Sankey case this time doubled should be
credited to the accused.
27 Mr. Basha is thirty-five (35) years old and from his background presentation it can be seen
that he is well educated, having received a teaching licence for this province. He has served with
the United States Army for three years, and was decorated for service in Vietnam. He is at
present married and they have a child of five months. He has had a varied career from army,
teaching, to deep sea diving and operating a salvage company in this province. More recently he
is owner-manager of a boutique in Avalon Mall called "Puff N Stuff", and also was President of
Key Investments Limited, renting to tenants. He also owns property in Florida, U.S.A., being a
residence there, in addition to a parcel of land valued at $100,000.00. He has also a valuable coin
collection and is said by the prosecutor to have a net worth of some $180,000.00. It is also noted
that he has not filed an income tax return in Canada since 1971.
28 His part in this conspiracy has already been commented upon. In every sense he was the
brain of the outfit, and it was only due to the constant efforts of the police, and the interception
of private communication that this conspiracy ring was broken.
29 Sentence in this case will have to emphasize deterrence as the chief factor in maintaining
the protection of the public. Hopefully reformation will ensue as well. Even allowing for the
months spent in custody the period of imprisonment will have to reflect that here was a person
with every opportunity to live and work in a lawful capacity. Instead, he chose to take his
chances in evading the law by means of a lawful business and gain considerable property as a
result. His great motivation seems to be greed.
30 Bearing in mind the sentence in Carrier and the ceiling put on sentence by the Johnston
and Tremayne case, I have decided upon the sentence in this case, but wish to say a little more
now since only yesterday other co-conspirators were sentenced. These others played a lesser role
and therefore the ratio of the Greenfield case will be observed.
31 In this case, two counts of conspiracy to traffic are dealt with - to traffic in Marijuana and
in Hashish. The substantive offences of trafficking could have been charged, and each of these
by law, has a maximum penalty of life imprisonment, but by the Johnston and Tremayne
reasoning, a ceiling of fourteen years has been stated for at least Ontario in these Cannabis
conspiracy and trafficking cases. It is the policy of courts where a maximum penalty is set by law
to reserve only those cases for the maximum penalty that are the most serious, or where the
accused himself has shown a propensity over the years to keep committing the sort of crime the
court is dealing with and is, in other words, incorrigible.
32 In this case, it is the crime of conspiracy itself which is serious. Possibly one of the most
serious any court will meet in the cannabis conspiracy cases. The sentence is therefore higher
than what is usual, and in view of the sentence given to the co-conspirators, it is higher than
33 Accused will be sentenced to 9 years for count number one and count number two, 9 years.
34 And for count number two to run concurrently.
Appendix -- I
Cases noted and referred to in sentencing as well as articles and reports:
(1) R. v. Greenfield,  3 All E.R. 1050;
(2) The LeDain Commission Report on Cannabis (1972 Ottawa);
(3) Proceedings of the National Symposium on Medical Science and The Criminal Law
(University of Toronto 1973);
(4) R. v. Wilmott,  1 C.C.C. 171;
(5) R. v. Morrissette,  1 C.C.C. (2d) 307;
(6) R. v. Grady (1971), 5 N.S.R. (2d) 264 (N.S.C.A.);
(7) R. v. Fairn (1973), 12 C.C.C. (2d) 423 (N.S.C.C.);
(8) R. v. Johnston and Tremayne,  4 C.C.C. 64 (O.C.A.);
(9) R. v. Crevier (1978), 2 C.R., (3d) 38 (Que. C.A.);
(10) R. v. Puffer (1978), 2 C.R. (3d) S-1 (O.C.A.);
(11) R. v. Kowlyk (1978), 2 C.R. (2d) S-1 (O.C.A.);
(12) R. v. Carrier (1977), 12 Nfld. & P.E.I.R. 189, 25 A.P.R. 189 (Nfld. C.A.);
(13) R. v. O'Neill (1973), 4 Nfld. & P.E.I.R. 473, 13 C.C.C. (2d) 276 (Nfld. C.A.);
(14) R. v. Spragueetal (1974), 19 C.C.C. (2d) 513 (Alta. C.A.);
(15) Ruby, Sentencing (Butterworth & Co. (Can.) Limited - 1976);
(16) D.P.P. v. Dootetal,  1 All E.R. 940 (H.L.);
(17) R. v. Gravino (1970-71), 13 Crim. L.Q. 434 (Que. C.A.);
(18) R. v. Arlenna & Sankey (1975), 30 C.R.N.S. 367;
(19) R. v. Wooff (1973), 14 C.C.C. (2d) 396 (O.C.A.);
(20) R. v. Doyle et al. (1970), 2 C.C.C. (2d) 82 (Alta. C.A.).
END OF DOCUMENT