Court File and Parties
COURT FILE NO.: CR 6-17 DATE: 20170413 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: R. v. Anna THIESSEN and Johan THIESSEN
BEFORE: R. J. Harper
COUNSEL: Jamie Pereira, Counsel for the Federal Crown Aaron Prevost, Counsel for Anna Thiessen Geoff Snow, Counsel for Johan Thiessen
HEARD: March 8, 9 and 10, 2017
Endorsement
Issue
Anna Thiessen brings this Application for a directed verdict.
Background
[1] Anna Thiessen, is charged with two counts as follows:
- One count of possession of Cocaine for the purpose of trafficking contrary to section 5(2) of the Controlled Drugs and Substances Act (CDSA);
- One count of possession of Methamphetamine for the purpose of trafficking contrary to section 5(2) of the CDSA.
[2] It is an agreed fact that Anna Thiessen and Johan Thiessen are the owners of a property known as 1277 Lakeshore, in the County of Norfolk (1277 Lakeshore). It is alleged that Anna Thiessen and Johan Thiessen allowed their home to be a stash house of cocaine and methamphetamine drugs. These drugs were allegedly brought from Mexico, through the United States into Canada by Abraham Klassen (Abe Klassen) and sold to undercover police officers by Franz Klassen, Abe Klassen’s cousin.
[3] As a result of a search warrant executed on May 13, 2014, 6 kilos of cocaine and 1 kilo of Methamphetamine were found in a crawl space at 1277 Lakeshore.
[4] This Application is brought by Anna Thiessen at the close of the Crown’s case.
[5] Anna Thiessen submits that there is no evidence presented by the Crown that connects her to the cocaine and the methamphetamine found at 1277 Lakeshore.
The Law
[6] In the case of R. v. Brown, 2015 ONSC 2008, Spies J. considered the test to be considered with respect to the granting of a directed verdict. He stated commencing at paragraph 2:
The Test
[2] Counsel were in agreement with respect to the test that should be applied. In reaching my decision I adopted the following test which comes from R. v. Charemski [1] where Justice McLachlin, (as she then was), writing for herself and Major J., and dissenting on other grounds, stated:
[20] A properly instructed jury acting reasonably is a jury that will convict only if it finds that the evidence establishes guilt beyond a reasonable doubt. To determine whether this could occur, the judge on the motion for a directed verdict must ask whether some or all of the admissible evidence is legally sufficient to permit the jury to find guilt beyond a reasonable doubt. In doing so, the trial judge is determining the sufficiency of the evidence. The question is whether the evidence is capable of supporting a verdict of guilt beyond a reasonable doubt. …
[22] … Where the case is based on circumstantial evidence…[i]n order to determine whether a properly instructed jury could reasonably convict, the judge must determine whether, assuming the circumstantial facts are proved, it would be reasonable to make the inference necessary to establish the facts in issue.
[23] On any motion for a directed verdict, whether the evidence is direct, circumstantial, the judge, in assessing the sufficiency of the evidence must, by definition, weigh it. …But weighing the evidence for this purpose is a very limited exercise. …the judge assesses whether, hypothetically, a guilty verdict is possible; the jury determines whether guilt has actually been proved beyond a reasonable doubt. [Emphasis mine]
[3] In R. v. Arcuri [2], McLachlin C.J. wrote for a unanimous Court. It is significant that she stated that Charemski did not evidence disagreement in the Court as to the proper approach. She went on to clarify the approach regarding the weighing of evidence, making it clear that where the Crown’s case involves circumstantial evidence, the judge must engage in a “limited weighing” of the evidence. As McLachlin C.J. held at para. 23:
[23]…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….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. [Emphasis mine]
[4] Mr. MacDonald also drew my attention to R. v. Turner [3], where the Court of Appeal reviewed these decisions including para. 35 of Charemski where McLachlin J. stated:
[35]… “sufficient evidence” must mean sufficient evidence to sustain a verdict of guilt beyond a reasonable doubt; merely to refer to “sufficient evidence” is incomplete since “sufficient” always relates to the goal or threshold of proof beyond a reasonable doubt. This must constantly be borne in mind when evaluating whether the evidence is capable of supporting the inferences necessary to establish the essential elements of the case.
[7] In this case, it is agreed that the issue is whether or not Anna Thiessen had constructive or attributed possession of the cocaine and methamphetamine found at 1277 Lakeshore. Is there sufficient circumstantial evidence that could reasonably support an inference that she had knowledge, she consented and she had control of the drugs?
[8] It is an agreed fact that the drugs were found at 1277 Lakeshore and that home is owned by Anna and Johan Thiessen.
[9] Ownership and or occupancy alone of a home that the drugs were found in is insufficient to constitute knowledge. (R. v. Grey p4-6)
[10] See also R. v. Pham 2005 CarswellOnt 6940 at para 15:
[15] In order to constitute constructive possession, which is sometimes referred to as attributed possession, there must be knowledge which extends beyond mere quiescent knowledge and discloses some measure of control over the item to be possessed.
[11] In order to determine if there is “sufficient evidence” that if believed could reasonably support a verdict of guilty beyond a reasonable doubt where there is no direct evidence I must consider whether there is sufficient evidence that could support an inference of guilt.
[12] What are the surrounding circumstances that would allow an inference to be drawn that Anna Thiessen knew or consented to the drugs being at 1277 Lakeshore.
- It is an agreed fact that the cocaine and methamphetamine were found at 1277 Lakeshore.
- The drugs were in a place that is not easily accessible. Officer Dunn testified that he was the second team of officers to come in and search the property on May 13, 2014. The first search of the basement turned up nothing. He went further into the crawl space as he was familiar with crawl spaces from his own personal experience. The space was extremely small. He went in and located the drugs approximately 20 feet in.
- Other persons had access to 1277 Lakeshore. On the day that the search warrants were executed the door to the residence was open.
- There was a red metal door at the entrance to the furnace room that had the entrance to the crawl space.
- The only other room downstairs where the crawl space was located was a small room that had a desk and little else.
[13] The issue is whether there is circumstantial evidence upon which a reasonable inference could be drawn that she had knowledge, gave consent and had control of the drugs.
[14] Justice Kane made the following observations with respect to inference drawing in R. v Masilamany, 2017 ONSC 947, commencing at para 36:
[36] The court in Munzo stated that the drawing of a reasonable inference is not deductive reasoning where if the premise is accepted, results in a valid conclusion, as the conclusion is inherent in the premise. Inference drawing involves inductive reasoning. Inference drawing derives a conclusion based on human experience. The inferred conclusion is not inherent in the premise in evidence. The inferred conclusion flows from an interpretation of that premise evidence derived from experience. Therefore if the primary facts or premise are accepted, the inductive conclusion follows with some degree of probability but not of necessity. Unlike deductive reasoning, inductive reasoning provides more information than is contained in the premise: Munzo, para 23.
[37] The court in Munzo stated: The process of inference drawing was described by Doherty J.A. in R. v. Morrissey, (1995), 22 O.R. (3d) 514, [1995] O.J. No. 639, 97 C.C.C. (3d) 193 (C.A.), at p. 530 O.R., p. 209 C.C.C. as follows: A trier of fact may draw factual inferences from the evidence. The inferences must, however, be ones which can be reasonably and logically drawn from a fact or group of facts established by the evidence. An inference which does not flow logically and reasonably from established facts cannot be made and is condemned as conjecture and speculation: Munzo, para 25.
[38] Permissible inferences are rational conclusions drawn from the whole of the evidence and are not impermissible conjecture and speculation: R. v. White, (1994), 1994 NSCA 77, 89 C.C.C. (3d) 336 at p. 351 (N.S.C.A.) and Munzo, para 29.
[15] The Crown submits that the fact of ownership taken together with the fact that it would be too risky for Abe Klassen to leave the drugs in that home without both Thiessen’s knowing about it is sufficient evidence. I do not agree.
[16] In this case, there is no reasonable inference that can be drawn that Anna Thiessen had knowledge that the drugs in question were in the crawl space at 1277 Lakeshore.
[17] I find that the Crown has not established that there is “sufficient evidence” capable of supporting the inferences necessary to establish the essential elements of the offences against Anna Thiessen.
[18] There will be a directed verdict of Anna Thiessen’s acquittal of both counts in the indictment.
The Honourable Mr. Justice R.J. Harper Released: 13 April 2017
ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: Regina v. Anna THIESSEN and Johan THIESSEN REASONS FOR JUDGMENT R.J. Harper Released: 13 April 2017