WARNING

The court hearing this matter directs that the following notice be attached to the file:

A non-publication and non-broadcast order in this proceeding has been issued under subsection 539(1) of the Criminal Code. This subsection and subsection 539(3) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection (1), read as follows:

539. ORDER RESTRICTING PUBLICATION OF EVIDENCE TAKEN AT PRELIMINARY INQUIRY

(1) Prior to the commencement of the taking of evidence at a preliminary inquiry, the justice holding the inquiry

(a) may, if application therefor is made by the prosecutor, and

(b) shall, if application therefor is made by any of the accused,

make an order directing that the evidence taken at the inquiry shall not be published in any document or broadcast or transmitted in any way before such time as, in respect of each of the accused,

(c) he or she is discharged, or

(d) if he or she is ordered to stand trial, the trial is ended.

(3) FAILURE TO COMPLY WITH ORDER

Every one who fails to comply with an order made pursuant to subsection (1) is guilty of an offence punishable on summary conviction.

Court Information

Ontario Court of Justice

Date: 2017-08-11

Court File No.: Brampton 3111 998 7586 and 7587

Between:

Her Majesty the Queen

— and —

Tanieve Dennis

Before: Justice G.P. Renwick

Heard on: August 8, 9, 10, 2017

Reasons for Committal to Stand Trial released on: August 11, 2017

Counsel

V. Fedorchuk — counsel for the Crown, The Public Prosecution Service of Canada

K. Morgan — counsel for the defendant, Tanieve Dennis

Decision

RENWICK J.:

INTRODUCTION

[1] The defendant was originally charged with eight Criminal Code ("Code") and four Controlled Drugs and Substances Act ("CDSA") offences on two Informations with two other individuals. One co-defendant has conceded her committal to stand trial, while the other was the beneficiary of the exercise of prosecutorial discretion during the preliminary hearing and for whom a stay of all charges was entered. The defendant's charges arise from the execution of two search warrants at different apartments on June 15 and 16, 2016.

[2] The defendant concedes his committal to stand trial on count 4 (possession of a Schedule I substance, oxycodone, for the purpose of trafficking) of the CDSA Information and count 7 (breach of recognizance) of the Code Information. During the hearing, the prosecutor sought a discharge of the defendant on count 3 (possession of a Schedule I substance, heroin, for the purpose of trafficking) of the CDSA Information and count 8 (possession of a prohibited weapon in contravention of a court order) of the Code Information. As well, at the conclusion of the preliminary hearing, the prosecution sought committal of the defendant upon an additional count (possession of a firearm with readily accessible ammunition), contrary to s. 95 of the Code.

[3] The prosecutor led evidence from seven police witnesses and filed several certificates of analysis of controlled substances. An agreed statement of facts was also admitted into evidence on consent. The defendant called no evidence and made no statement at the conclusion of his preliminary hearing.

THE EVIDENCE

[4] Given the concessions made and the issues raised during this hearing, I do not propose to reiterate all of the evidence heard during this inquiry. Suffice it to say that I have reviewed and considered all of the evidence received and I will only reference those parts of the evidence that are necessary to understand the route to my findings.

[5] It is essentially agreed by the parties that at 11:23 pm on June 15, 2016 Peel Regional Police officers executed a search warrant at apartment 2301 – 400 Webb Drive, Mississauga. Police arrested the defendant at the door of the apartment. In the defendant's possession was a satchel containing 46 oxycodone pills, two cellular telephones, $2000, a key, and a key fob. Also in his possession, police found $1110.

[6] Police officers took the key and fob and attended apartment 3103 – 2212 Lakeshore Boulevard West, Toronto and using the fob they were able to gain access to the building's entrance, and to take the elevator to the 31st floor. Police learned from the building's security that the fob was associated to apartment 3103, but due to safety concerns and the fact that they were not yet in possession of a search warrant for this residence, the police decided not to try to use the key to enter the apartment. Rather, the police awaited the arrival of any residents or guests to apartment 3103.

[7] After three hours, Pamela Filochowski and Michael Bennett, the two other co-defendants referred to above, arrived and they were arrested as they were about to enter apartment 3103. Ms. Filochowski had her own set of keys for that residence. After confirming that there were no other occupants inside apartment 3103 and now having arrested Ms. Filochowski in possession of heroin and keys to the unit, police applied for and were granted a search warrant to enter that apartment.

[8] Inside apartment 3103 police located 145.95 g of heroin and 147 oxycodone pills hidden in the closet of the master bedroom. The bedroom contained women's clothing. It was not contested that Ms. Filochowski was the likely resident of the apartment and the suspected user of the master bedroom.[1] On the floor of the second bedroom of that apartment, police found an air mattress, a black semi-automatic firearm, a magazine containing 13 rounds of ammunition, and a bag containing another 19 live rounds. The firearm was not under the mattress, but due to their relative positions on the floor, the firearm was not initially visible when the police checked for occupants before seeking a search warrant.

[9] It was an agreed fact that on one of the 13 rounds of ammunition in the over-capacity magazine there was a fingerprint belonging to the left index finger of the defendant.

POSITION OF THE PARTIES

[10] The defendant resists his committal to stand trial on the firearm and related offences solely because there is a paucity of evidence to suggest the defendant had ever been to the Lakeshore apartment, much less had knowledge of or control over its contents. As well, even if the defendant may have been loosely associated with the apartment by virtue of his possession of a key for that unit, there was no evidence that the defendant had any knowledge of or control over the drugs found secreted in Ms. Filochowski's bedroom. With respect to the defendant's fingerprint found on a round of ammunition in the magazine located close to, but not inserted within the firearm, the defendant asks whether there is any proof that the ammunition could be used with that firearm and contests any possible negative inferences with respect to his possession of the firearm on the basis that there is no proof of when or how his fingerprint came to be on that round of ammunition.

[11] The prosecution seeks the defendant's committal on these offences based upon the defendant's possession of a fob for the Lakeshore building entrance and elevator, and the key to apartment 3103. The prosecutor submits that the defendant's possession of the key to the apartment in the hours before the discovery of the drugs and firearm, his relationship to Ms. Filochowski and the fingerprint evidence leads to the irresistible conclusion that he was in constructive and joint possession of the items found in 3103 – 2212 Lakeshore Boulevard West on June 16, 2016, and a jury acting reasonably and relying on this evidence could well convict him of these offences. The prosecution asks the Court to find that a jury could reasonably draw an inference that the loaded magazine could be used within the semi-automatic firearm based upon the evidence of the seizing officer, Constable Osborne.

THE LAW

[12] In this part, I will discuss my role as a preliminary hearing justice and the test for committal upon these offences.

[13] In R. v. Foster, Mr. Justice Hill reviewed the jurisprudence of the role of the preliminary hearing justice, in the context of an application for certiorari following the discharge of the respondent on robbery charges. With respect to circumstantial evidence and the limited weighing function of the preliminary hearing justice, His Honour enumerated many of the governing principles, including the following:

In circumstantial evidence cases, there may exist not one, but a range or field of reasonable inferences which may be drawn. The ultimate determination as to whether an available reasonable inference ought to be drawn is for the trier of fact - a judge is not to ask whether facts ought to be inferred and is not to make "determinate factual inferences": R. v. Cinous, at 157, 171, 173; R. v. Arp, at 353. In other words, a preliminary inquiry justice acts in excess of jurisdiction where he or she chooses from amongst competing or alternative reasonable inferences: R. v. Figueroa et al., 2008 ONCA 106, [2008] O.J. No. 517 (C.A.) at para. 34; R. v. D.M., [2008] O.J. No. 326 (C.A.) at para. 5. A preliminary hearing court is not to apply the rule in Hodge's Case to determine whether a reasonable inference is consistent with guilt and inconsistent with any other rational explanation: R. v. Charemski, (1998), 123 C.C.C. (3d) 225 (S.C.C.) at 230; R. v. Monteleone, at 198; R. v. Mezzo, (1986), 27 C.C.C. (3d) 97 (S.C.C.) at 107.

Circumstantial inferences are ones which "can be reasonably and logically drawn from a fact or group of facts established by the evidence": R. v. Morrissey, (1995), 97 C.C.C. (3d) 193 (Ont. C.A.) at 209. A trier of fact "cannot be invited to draw speculative or unreasonable inferences": R. v. Figueroa et al., at paras. 35, 42. Most cases "will involve hiatuses in the evidence which can be filled only by inference": Lameman v. Canada (Attorney General), 2006 ABCA 392, [2006] A.J. No. 1603 (C.A.) at para. 87. "The process of drawing inferences from evidence is not, however, the same as speculating even where the circumstances permit an educated guess": U.S.A. v. Huynh, at 307.

Some inferences are strong and capable of creating practical certainty while others are weaker: Lameman v. Canada (Attorney General), at para. 94. A reasonable and logical inference to be drawn from circumstantial evidence need not be an easy one to draw (R. v. Katwaru, (2001), 153 C.C.C. (3d) 433 (Ont. C.A.) at 444) or indeed the most obvious or compelling inference: R. v. Munoz, [2006] O.J. No. 446 (S.C.J.) at paras. 21-31. The justice is obliged to consider the cumulative effect of the evidence said to point toward guilt on the part of the accused. Especially in a case premised wholly or in large measure upon circumstantial evidence, it is improper to isolate a particular piece of evidence and to then discuss any probative force flowing therefrom without regard to the context of the totality of the evidence: R. v. Coke, at para. 9.[2]

[14] It is trite to note that I need not actually draw factual inferences nor determine credibility or the inherent reliability of evidence in my limited role as a preliminary hearing justice: see R. v. Arcuri, 2001 SCC 54, [2001] S.C.J. No. 52, at paragraphs 23, 30, and 33, and R. v. Kamermans, 2016 ONCA 117, [2016] O.J. No. 685 (C.A.) at para. 15. As the trier of inference, I am entitled to perform a limited weighing of the circumstantial evidence to determine if the inferences sought by the prosecution are indeed capable of being drawn.[3]

[15] In order to commit the defendant to trial for these offences, I have to be satisfied that there is some evidence of each element of each charge, which if believed, would satisfy a properly instructed jury, acting reasonably, of the defendant's guilt beyond a reasonable doubt. Given the defence concessions and the sole issue raised during this preliminary hearing (could the prosecution satisfy a jury of the defendant's possession of the contraband found at apartment 3103 beyond a reasonable doubt) I need only consider the evidence in terms of whether or not knowledge of and control over the items could reasonably be found. Or put another way, is there some evidence which if believed could satisfy a jury beyond a reasonable doubt that the defendant possessed the drugs and firearm related items found by the police in apartment 3103 – 2212 Lakeshore Boulevard West.

ANALYSIS

[16] There is no direct evidence respecting the defendant's possession of the contraband found within apartment 3103. The prosecutor relies upon the reasonable inferences which may be drawn from the circumstantial evidence to establish the defendant's knowledge and control. The prosecutor urges me to conclude that a jury could infer the defendant was in possession of the drugs, the firearm, the magazine, and the ammunition from the circumstances of his arrest, his connection to Ms. Filochowski, his access to apartment 3103, and his fingerprint on one of the bullets found by the police.

[17] Counsel for the defendant submits that the only inference that can be drawn from the evidence is that the defendant may have had access to apartment 3103 at some time, without accepting that the defendant had actual or imputed knowledge of and control over the contents of the unit on June 16, 2016. Given the lack of evidence about the timing and context of the defendant's possession of the key and fob for unit 3103 – 2212 Lakeshore, the defendant submits that there are too many possible other inferences to accept the inferences sought by the prosecution.

[18] However, the fact that there are other possible inferences that may be drawn by the trier of fact is moot. The law is clear that I need not consider competing inferences, and I am entitled to consider only those inferences favourable to the prosecution.[4]

[19] I conclude that a jury would be entitled to infer that the defendant was in possession of the firearm and related items in the second bedroom of apartment 3103, based upon the following evidence and reasonable inferences that may be drawn therefrom:

i. The defendant is a drug dealer;

ii. Ms. Filochowski is a drug dealer;

iii. The defendant knew Ms. Filochowski and had some association with her for at least several months;[5]

iv. Drug dealing is illegal and drugs are a valuable commodity; drug dealers would not be likely to give their rivals or others access to premises where they store their assets or offence-related property;

v. The defendant possessed a fob to enter the controlled access building at 2212 Lakeshore West, Toronto;

vi. The defendant possessed a key to enter Ms. Filochowski's apartment, unit 3103;

vii. Given the above, it is reasonable to infer that the defendant and Ms. Filochowski were associates and/or partners in the illicit drug trade;

viii. The Lakeshore apartment was the defendant's stash house for the drugs he sold at the Webb Drive apartment;

ix. Drug dealers conduct an illegal and sometimes dangerous business; a firearm and ammunition may be possessed to protect one's assets from predators;

x. The defendant's fingerprint was on one of the rounds in the over-capacity magazine; and

xi. The magazine and ammunition could be used with that firearm.[6]

[20] The more difficult question is whether a jury could find the defendant guilty of the possession of the drugs found hidden in Ms. Filochowski's bedroom closet. There is no forensic linkage between the defendant and this contraband, however, a circumstantial nexus would satisfy the test for committal.

[21] It would not be unreasonable for a jury to conclude that the defendant was closely linked to the Webb Drive apartment for the following reasons:

i. The defendant was arrested in close proximity, if not within apartment 2301; in fact, when he was arrested, apartment 2301 was the only open apartment door on that floor;

ii. The defendant had drugs, two cell phones, and a significant quantity of money in his possession;

iii. Apartment 2301 contained the following drug paraphernalia: a suspected cutting agent; syringes, and spoons with suspected heroin residue; and

iv. The defendant had been observed by the police inside the building at 400 Webb Drive about 2 months prior to his arrest there.

[22] Given the likely association between the defendant and Ms. Filochowski, their occupation as drug dealers, the defendant's possession of oxycodone, which was also found in Ms. Filochowski's bedroom closet at apartment 3103, his connection to apartment 2301 – 400 Webb Drive, and specifically the heroin-related drug paraphernalia found therein, the fact that no drugs were stored at the Webb Drive apartment, and the fact that Ms. Filochowski was likely a heroin trafficker, it is not unreasonable for a jury to conclude that the defendant and Ms. Filochowski were involved in the drug trade as partners or close associates, and accordingly, he knew about the heroin and oxycodone in her bedroom closet at 2212 Lakeshore where he had access to that apartment and all of its contents, and where he stored his drugs, and they jointly possessed all of the illegal items found by the police in apartment 3103 on June 16, 2016.

[23] Again, these inferences are all the more reasonable because these drugs in issue are extremely valuable to drug dealers and their customers, the illicit drug trade is illegal, drug dealers would not lightly share a key to their stash house with someone with whom they did not have a relationship of trust, nor would they be likely to provide a key or access to their assets to their rivals or customers.

CONCLUSION

[24] In light of the above findings, the defendant is committed to stand trial on all remaining counts as well as the additional count of possession of a firearm with readily accessible ammunition, contrary to s. 95 of the Code.

Released: August 11, 2017

Justice G. Paul Renwick

Footnotes

[1] Police believed that Ms. Filochowski was the named occupier of the apartment, and throughout oral argument counsel did not contest this opinion, although this was not specifically conceded by the defendant.

[2] R. v. Foster, [2008] O.J. No. 827 (S.C.J.) at para. 31.

[3] Arcuri, supra, at paras. 1 and 23-30.

[4] See R. v. Pinnock, [2007] O.J. No. 1599 (S.C.J.) at para. 42 (5).

[5] The evidence established that the police had investigated an incident involving both co-defendants about two months prior.

[6] Two police officers, Turner and Osborne, concluded that the magazine was from the firearm. Although there are competing inferences, and a lack of proof that the magazine and ammunition could be used within this firearm, it is not unreasonable to infer their utility to load the weapon given their proximity and the fact that the firearm had no magazine or ammunition contained within it.