Court File and Parties

CITATION: R. v. Callejas, 2011 ONCA 393

DATE: 20110519

DOCKET: C52668

COURT OF APPEAL FOR ONTARIO

Weiler, Gillese and Blair JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Ronald Callejas

Appellant

Counsel: Terry P. Waltenbury, for the appellant Marie Comiskey, for the respondent

Heard and released orally: May 13, 2011

On appeal from the conviction entered on May 28, 2010 by Justice Robert Del Frate of the Superior Court of Justice, sitting without a jury.

ENDORSEMENT

[1] The appellant, Ronald Callejas, appeals his conviction for one count of possession of cocaine for the purpose of trafficking. The central argument on appeal was that the trial judge misapprehended the evidence respecting the appellant’s knowledge of the existence of drugs in the closet of the bedroom in which the appellant was staying and misapplied the doctrine of wilful blindness.

[2] At 10:28 p.m. on December 30, the police executed a search warrant on a house owned by the appellant and for which he paid all the bills. Constable Spec was stationed at the front door, while another officer guarded the back door and two officers entered through the garage entrance. Constable Spec observed an individual, later identified as the appellant’s son, David Callejas, run upstairs. Fearing that this person would try to run away or destroy evidence, Constable Spec kicked in the front door and entered the house. He observed a second individual, later identified as the appellant, exit the bedroom on the right.

[3] Constable Spec searched the bedroom from which he had observed the appellant exit. Inside, there was a mattress on the floor with bedding. There was a duffel bag on the dresser that contained some clothes, $3,100 in $20 bills and two bank books belonging to the appellant. On the dresser there was another $350 in cash, consisting mostly of $20 bills and a cell phone.

[4] The closet in the bedroom did not have a door. On a shelf in the closet, Constable Spec found $1,200 in $20 bills hidden under some clothes and a Tostitos glass jar. Inside the jar were 16 individually wrapped folds of glossy paper – 11 containing approximately one gram of cocaine and 5 containing approximately half a gram of cocaine, for a total of 13.5 grams of cocaine.

[5] Before leaving the residence for the police station, the appellant was permitted to change into street clothes. He entered the same bedroom on the right side of the hall and retrieved his jeans from the top of the mattress on the floor and his glasses from somewhere in the bedroom.

[6] On the issue of the appellant’s knowledge of the Tostitos jar and the cash, the trial judge concluded that the appellant was at least wilfully blind. He stated:

On the issue of knowledge itself, the case law is clear that knowledge can be made out by a finding of wilful blindness. The fact that these folds were individually packaged and were in a jar partially hidden in the closet, next to a sizeable amount of cash, was sufficient to have raised some suspicion in the accused. It is difficult to accept that having seen these items, no questions would have been asked of other people in the residence.

[7] The appellant submits that the trial judge’s reasoning is flawed and that the doctrine of wilful blindness does not apply because there was no evidence that the appellant ever saw the Tostitos jar in the closet or the cash under the clothes. He further submits that the trial judge was not entitled to draw the inference that the appellant had seen the Tostitos jar or the cash because the appropriate evidentiary foundation was lacking. Finally, he submits that even if the trial judge were entitled to draw this inference, this was not the only inference available because the evidence was consistent with the appellant simply staying with family members over the Christmas holidays, given his makeshift bed which was a mattress on the floor of the bedroom in which the appellant was staying. Thus, he says it is unclear that the trial judge would necessarily have convicted.

[8] We disagree. The appellant was the owner of the house, paid all the bills for the house, and on the evening in question occupied the room in which the closet containing the Tostitos jar and cash was located. The evidence of the police officer was that without inserting your head into the whole closet the Tostitos jar could be seen. In all the circumstances the trial judge was entitled to draw the inference that the accused had looked in the closet and had seen the Tostitos jar and, as well, the cash, having regard to the $20 bills found in the accused’s duffle bag and on the dresser. The doctrine of wilful blindness applies when suspicion in an accused’s mind is aroused but the accused purposely closes his mind in order to be able to deny knowledge. The only available inference in the circumstances was that the appellant knew what was in the Tostitos jar or was wilfully blind to it.

[9] Accordingly the appeal is dismissed.

“Karen M. Weiler J.A.”

“E.E. Gillese J.A.”

“R.A. Blair J.A.”