ONTARIO SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 1150/11
DATE: 20120313

ONTARIO
SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN Respondent – and – GODWIN DEANE Applicant

S. Aujla, for the Crown
W. Glen Orr, for the Applicant

HEARD: March 13, 2012

Certiorari Application

MILLER, J.

[ 1 ] Godwin Deane is charged that he, on December 23, 2009, together with Harsharn Deol, had in their possession heroin, for the purposes of trafficking and further that he, between December 15 and December 23, 2009 conspired with Harsharn Deol and others to possess heroin for the purpose of trafficking.

[ 2 ] Mr. Deane brings a certiorari application asking that his committal for trial on both charges be quashed on the basis that the preliminary hearing judge exceeded her jurisdiction, there being no evidence upon which a reasonable jury properly instructed could find that Godwin Deane knew that what he had in his possession was heroin.

Facts

[ 3 ] In December 2009, an international shipment of water coolers arrived in Toronto from Pakistan. The water coolers in the shipment contained heroin. This shipment was addressed to Jaswinder Singh, Zoom Imports with a Toronto address. The R.C.M.P. substituted the heroin under a judicial authorization and arranged for a controlled delivery.

[ 4 ] A man using the name Jaswinder Singh arranged for the Customs clearance of this shipment through a Customs broker, Denise Jakeman, using a phone with the number 647-928-0127. This Customs broker had cleared prior shipments for Jaswinder Singh. At the preliminary hearing the Crown witness Harvinder Singh identified Jaswinder Singh's voice in the wiretap intercepts as voice of Harsharn Singh Deol whom Harvinder knew as Harry.

[ 5 ] A significant portion of the evidence relied on by the Crown in the case against Godwin Deane was the testimony of Harvinder Singh. Mr. Singh had turned himself in to the police with assistance of counsel. After his release he provided a warned statement under oath to the R.C.M.P. Mr. Singh, with assistance of his counsel, entered into an immunity agreement with the Crown and testified for the prosecution at the preliminary hearing of Godwin Deane and his co-accused.

[ 6 ] The R.C.M.P. obtained a judicial authorization for intercepting calls to and from phone 647-928-0127. On December 23, 2009 Mr. Deol used the 647-928-0127 phone in his dealings with the Customs broker. The Customs broker testified that she had call display on her business phone and she recognized one voice in the intercepted calls as the voice of Jaswinder Singh.

[ 7 ] Mr. Deol was also using another phone at the same time with the number 647-885-2656. Phone analysis of this phone shows that Deol used this phone regularly. Harvinder Singh knew the 2656 number to be Mr. Deol’s phone. Mr. Singh had made calls to and received calls from this phone.

[ 8 ] The intercepts reveal that on December 23, 2009 Mr. Deol was calling the Customs broker on the 647-928-0127 phone. The phone analysis shows that Mr. Deol was using his 2656 phone to call Godwin Deane between the calls to the broker. Mr. Deol also arranged for the delivery of the shipment to 1094 Westport Drive Unit # 2, Mississauga. This was a body shop where Mr. Deane was arrested later that day.

[ 9 ] A delivery truck attended at 1094 Westport drive in the afternoon. The intercept at 3:23 p.m. is a conversation between the delivery personnel and a male. This male identified himself as Jaswinder Singh of Zoom Imports and said that 1094 Westport Drive, Unit #2 was his address. The Customs broker identified this voice as Jaswinder Singh’s voice. Harvinder Singh identified the voice as that of Harry Deol.

[ 10 ] Mr. Deol ended the 3:23 intercepted call by saying, “yeah, okay, I’ll send the guy outside hold okay.” Within minutes of this intercepted call, R.C.M.P. surveillance officers saw Godwin Deane meeting with the delivery truck driver at 1094 Westport Drive, Unit #2. Mr. Deane was observed unloading the shipment on to the ground and then loading it into an unplated van. Mr. Deane’s van did not start and he had to jump-start the battery. Constable Sheedy observed Mr. Deane apparently speaking on a phone as Mr. Deane was jump-starting the battery.

[ 11 ] To that point all of Harsharn Deol’s calls to Godwin Deane had been on Mr. Deol’s 2656 phone but as Mr. Deane was trying to start the van, Mr. Deol called him on the 647-928-0127 phone and was thus intercepted at 3:44 p.m. This intercept is as follows, with Mr. Deol represented as JS and the person answering Mr. Deane’s phone as UM:

UM: Hello.
JS: Yo.
UM: Yeah.
JS: What’s good?
UM: I’m putting the vehicle inside.
JS: In where… where you putting it.
UM: Inside.
JS: Your place.
UM: Yeah.
JS: Or you putting in… in the van.
UM: Yeah everything is in the van.
JS: It’s in the van.
UM: Yeah it’s in the van.
JS: Okay just wait there okay.
UM: Yeah.
JS: Is it heavy?
(Call disconnected)

[ 12 ] The Customs broker identified the voice in the 3:44 p.m. intercept saying "Is it heavy?" as the person she knew as Jaswinder Singh. Harvinder Singh identified the voice saying “Is it heavy?” as the voice of Harry Deol and the other voice as the voice of Godwin Deane. Mr. Singh testified that he knew Mr. Deane as an employee at a paint and body shop co-owned by Mr. Deol. Mr. Singh was friends with the other co-owner and frequently visited that body shop.

[ 13 ] After the call, Mr. Deane was observed driving the van into the body shop. Harvinder Singh then arrived at the body shop with Harsharn Deol in Mr. Singh’s Nissan Sentra. Upon arriving, Harvinder Singh observed Godwin Deane inside the shop.

[ 14 ] At the body shop Harvinder Singh went to urinate and upon return saw Mr. Deol counting money. Mr. Singh also saw Mr. Deol and Godwin Deane loading the water coolers into his Sentra. He did not help with the unloading or loading due to a back injury. Mr. Singh testified that the packaging had been removed before the coolers were placed into his vehicle. Mr. Singh testified that the items looked like water coolers. Mr. Deol told Harvinder Singh to take all the coolers to Mr. Singh’s home and they would be distributed later. Mr. Deol did not accompany Harvinder Singh when he left.

[ 15 ] After the Sentra was driven away by Harvinder Singh, the R.C.M.P. entered the body shop. They saw Godwin Deane and another uninvolved individual. The officers arrested Mr. Deane, seized his phone and wallet, and seized the discarded packaging for the shipment which was on the floor of the body shop. Mr. Deane’s wallet had his identification and over $1,200 in cash. Counsel for Mr. Deane points out that Mr. Deane was apprehended at his place of business and could reasonably be expected to have a quantity of cash. He also points out that $1,200 is small amount of money to accept in the face of the jeopardy faced for agreeing to handle 12kg of heroin.

[ 16 ] The delivered shipment was in Mr. Deane’s custody between 3:28 PM to 4:10 PM. — approx. 40 minutes.

[ 17 ] Crown counsel points out that there was evidence that, according to the phone analysis, 16 calls were made between Mr. Deol and Mr. Deane between 13:30 and 15:44 on December 23, 2009. These were interspersed with the calls Mr. Deol was making to the Customs broker. While, with the exception of the intercepted call at 15:44, the contents of those calls were not captured, the Crown argues it could reasonably be inferred that Mr. Deol was making arrangements with Mr. Deane in accordance with the information about the shipment he was receiving from the Customs broker.

[ 18 ] Crown counsel also points out that Mr. Deane received and unloaded, then assisted in removing the packaging from items that were addressed to a different address and to Jaswinder Singh, not to Mr. Deol. Counsel for Mr. Deane points out that there is no evidence Mr. Deane actually read the address labels.

[ 19 ] Evidence with respect to Harvinder Singh’s contact with the other named individuals after he left Mr. Deane’s business premises supports the Crown’s case with respect to those other individuals named in the conspiracy count. As with the charge of Possession for the Purpose of Trafficking, the issue on committal was evidence or lack of evidence of Mr. Deane’s knowledge that there were drugs secreted in the water bottles.

Reasons for Committal

[ 20 ] Although Godwin Deane had been arraigned on charges of Importing Heroin, Possession of Heroin for the Purpose of Trafficking and Conspiracy to Import Heroin the Crown sought committal only on Possession for the Purpose and Conspiracy to Possess Heroin for the Purposes of Trafficking.

[ 21 ] There was no issue that Mr. Deane had control of the water coolers containing the heroin. Counsel at the preliminary hearing argued there was no evidence that Mr. Deane knew that there was heroin concealed in the water coolers.

[ 22 ] In her Reasons for Committal, the preliminary hearing judge summarized the evidence against Mr. Deane. She identified the issue as Mr. Deane’s knowledge. She found that on the direct evidence of Mr. Deane’s involvement in the double transfer and the unpacking of the goods, together with Mr. Deane’s words “It’s in the van”, an inference could be drawn that he was talking about the heroin. The preliminary hearing judge held that “in my view there is ample evidence upon the test, as expounded in Shephard , as clarified in Arcuri, upon which the Court must draw inferences in the favour of the Crown”.

[ 23 ] The preliminary hearing justice committed Mr. Deane to trial on both charges.

The Law

[ 24 ] Section 548 (previously s. 475) of the Criminal Code governs the duty on the presiding judge at a preliminary hearing:

(1) When all the evidence has been taken by the justice, he shall

(a) if in his opinion there is sufficient evidence to put the accused on trial for the offence charged or any other indictable offence in respect of the same transaction, order the accused to stand trial; or

(b) discharge the accused, if in his opinion on the whole of the evidence no sufficient case is made out to put the accused on trial for the offence charged or any other indictable offence in respect of the same transaction.

[ 25 ] As cited in R. v. Dubois 1986 (SCC) , [1986] S.C.J. No. 21 at paragraph 2 :

The test to be employed under this section is to be found in the judgment of this Court in United States of America v. Shephard, 1976 (SCC) , [1977] 2 S.C.R. 1067 , per Ritchie J. at p. 1080:

I agree that the duty imposed upon a "justice" under s. 475(1) is the same as that which governs a trial judge sitting with a jury in deciding whether the evidence is "sufficient" to justify him in withdrawing the case from the jury and this is to be determined according to whether or not there is any evidence upon which a reasonable jury properly instructed could return a verdict of guilty. The "justice" ... is, in my opinion, required to commit an accused person for trial in any case in which there is admissible evidence which could, if it were believed, result in a conviction.

[ 26 ] The Ontario Court of Appeal in R. v. Martin, Simard and Desjardins (1977), 41 C.C.C.(3d) 308 (affirmed 1978 (SCC) , [1978] 2 S.C.R. 511) at paragraphs 14 and 15 indicated as follows:

The Code asserts this principle. Where there is any evidence at all upon a charge or issue arising thereunder, the Provincial Court judge is called upon by s. 475 of the Code to hear it and determine "if in his opinion the evidence is sufficient to put the accused on trial ...;" and his decision is not subject to review.

… we conclude that the learned Provincial Court judge here acted within his jurisdiction, unless it can be said that he committed these respondents on the counts specified without any evidence at all, in the sense of an entire absence of proper material as a basis for the formation of a judicial opinion that the evidence was sufficient to put the accused on trial. That is quite a different question from the question "whether in the opinion of the reviewing tribunal there was evidence upon which a properly instructed jury acting judicially could convict". It remained therefore to examine the excerpts of evidence, as placed before this Court from the lengthy transcript taken at the preliminary hearing, in order to determine whether there was any evidence at all on which the committing tribunal was able to base its opinion to commit, as required by the terms of the Code already cited.…Having properly directed his mind to the evidence and to the question of whether there was "sufficient evidence" to commit, his decision is not subject to review.

[ 27 ] This passage was quoted with approval by the Supreme Court of Canada in R. v. Skogman 1984 (SCC) , [1984] 2 S.C.R. 93. In Dubois at paragraph 23 , the Court re-asserted “In applying the wrong test for sufficiency, the preliminary inquiry judge does not commit jurisdictional error.”

[ 28 ] The test for the reviewing court therefore remains whether there is any evidence to provide a basis for the opinion of the preliminary hearing judge that the evidence was sufficient to put the accused on trial.

[ 29 ] As noted in R. v. Russell 2001 SCC 53 at paragraphs 19 and 48 :

…review on certiorari does not permit a reviewing court to overturn a decision of the statutory tribunal merely because that tribunal committed an error of law or reached a conclusion different from that which the reviewing court would have reached…

As we discussed in Skogman , supra, a preliminary inquiry judge's determination of sufficiency is entitled to the greatest deference; only if there is no evidence on an element of the offence…can a reviewing court vacate the committal: see Skogman , supra, at pp. 100 and 106.

[ 30 ] It is not disputed that the Crown need not prove Mr. Deane’s knowledge that the secreted drug was heroin as long as there was knowledge that the secreted substance wasa controlled substance. R. v Williams 2009 ONCA 342 at paragraph 19 :

In trafficking, importing or possession cases, it is not necessary for the Crown to demonstrate that the accused knew he or she possessed (or was importing or trafficking in) the very prescribed drug identified in the indictment provided the accused knew the drug was a narcotic

[ 31 ] Mr. Deane relies heavily on the pronouncement by McLachlin, C.J.C. in R. v. Arcuri 2001 SCC 54 at paragraph 24 :

We reaffirmed the traditional common law rule in Shephard , supra. As I noted in Charemski, supra, the same rule applies in England, in Australia, and in the United States: see Cross and Tapper on Evidence (8th ed. 1995), at pp. 190-92; P. Gillies, Law of Evidence in Australia (2nd ed. 1991), at pp. 206-8; Curley v. United States, 160 F.2d 229 (D.C. Cir. 1947), at p. 232 (the judge "must determine whether upon the evidence . . . a reasonable mind might fairly conclude guilt beyond a reasonable doubt").

[ 32 ] Counsel for Mr. Deane urges this interpretation on this Court: the test is whether a reasonable mind acting fairly could be sure – in this case whether a reasonable mind acting fairly could be sure Mr. Deane knew that there was a controlled substance in the water coolers he dealt with on December 23, 2009.

[ 33 ] Arcuri was a clarification of the Shephard test in circumstances where the Crown has not presented direct evidence as to every element of the offence. The Court held, at paragraph 23 that:

The question then becomes whether the remaining elements of the offence -- that is, those elements as to which the Crown has not advanced direct evidence – may reasonably be inferred from the circumstantial evidence. Answering this question inevitably requires the judge to engage in a limited weighing of the evidence because, with circumstantial evidence, there is, by definition, an inferential gap between the evidence and the matter to be established -- that is, an inferential gap beyond the question of whether the evidence should be believed…The judge must therefore weigh the evidence, in the sense of assessing whether it is reasonably capable of supporting the inferences that the Crown asks the jury to draw. This weighing, however, is limited. The judge does not ask whether she herself would conclude that the accused is guilty. Nor does the judge draw factual inferences or assess credibility. The judge asks only whether the evidence, if believed , could reasonably support an inference of guilt.

[ 34 ] As the Court pointed out at paragraph 30:

In performing the task of limited weighing, the preliminary inquiry judge does not draw inferences from facts. Nor does she assess credibility. Rather, the judge's task is to determine whether, if the Crown's evidence is believed, it would be reasonable for a properly instructed jury to infer guilt. Thus, this task of "limited weighing" never requires consideration of the inherent reliability of the evidence itself. It should be regarded, instead, as an assessment of the reasonableness of the inferences to be drawn from the circumstantial evidence.

[ 35 ] As the Ontario Court of Appeal indicated in R. v. Plaha 2008 ONCA 96 at paragraph 9 :

We agree with the trial judge that inferences other than knowledge could be drawn from the undisputed facts. However, that was for the trier of fact at the conclusion of all the evidence. As McLachlin C.J.C. said in R. v. Arcuri (2001), 2001 SCC 54 , 157 C.C.C. (3d) 21 (S.C.C.) at para. 23 :

The judge must therefore weigh the evidence, in the sense of assessing whether it is reasonably capable of supporting the inferences that the Crown asks the jury to draw. This weighing, however, is limited. The judge does not ask whether she herself would conclude that the accused is guilty. Nor does the judge draw factual inferences or assess credibility. The judge asks only whether the evidence, if believed, could reasonably support an inference of guilt. [Italics in original, underline added.]

Conclusion

[ 36 ] Having considered the relevant authorities and all of the evidence before the preliminary hearing judge I am satisfied that she committed no error in jurisdiction. I find that there was evidence before her that was reasonably capable of supporting the inferences that the Crown would ask a jury to draw in respect of Mr. Deane’s knowledge that there was a controlled substance in the water coolers he dealt with on December 23, 2009.

[ 37 ] Mr. Deane’s application is dismissed.

MILLER, J.

Released: March 13, 2012

R. v. Deane, 2012 ONSC 1698
COURT FILE NO.: 1150/11
DATE: 20120313

ONTARIO SUPERIOR COURT OF JUSTICE HER MAJESTY THE QUEEN – and – GODWIN DEANE CERTIORARI Application MILLER, J.

Released: March 13, 2012