COURT FILE NO.: CRIM J (F) 1115/18 DATE: 20181218 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Her Majesty the Queen, Respondent AND: Caitlin Johannes, Applicant
BEFORE: Barnes J.
COUNSEL: Brian G. Puddington, Counsel, for the Public Prosecution Service of Canada, Respondent Paul Cooper and Lisa Jorgensen, Counsel, for the Applicant
HEARD: November 26, 2018
REASONS FOR RULING
INTRODUCTION
[1] Caitlin Johannes brings a certiorari application to quash the order of Renwick J. of the Ontario Court of Justice. The Order, dated June 19, 2018, committed her to stand trial on four counts: possession of cocaine for the purpose of trafficking, contrary to section 5(2) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19 (“CDSA”); possession of marihuana for the purpose of trafficking contrary to section 5(2) of the CDSA; possession of proceeds of crime contrary to section 354(1)(a) of the Criminal Code; and possession of property unlawfully obtained by crime, contrary to section 354(1)(a) of the Criminal Code.
[2] After considering the record and the submissions of counsel, I dismiss the application. These are my reasons.
FACTUAL BACKGROUND
[3] Peel Regional Police conducted a large scale drug investigation dubbed “Project Cartella”. As a result Ms. Johannes’ husband and co-accused, Farzad Amirhoushmand, and other individuals, were identified as high-level drug traffickers in the GTA. Caitlin Johannes was never a target. On July 19, 2018, police executed a CDSA search warrant at 1536 Ifield Road. This is the home of Ms. Johannes and Mr. Amirhoushmand. Simultaneously, the police searched Mr. Amirhoushmand’s vehicle.
[4] The police located these items from the vehicle and from two locked rooms (cold cellar and bedroom) in the basement of the residence:
- 967 grams of cocaine;
- 8098 grams of marihuana;
- 1006 grams of hashish;
- $239,330.00 in Canadian Currency;
- $2,150.00 in U.S. Currency; and
- A Peel Regional Police Officer’s badge and warrant card.
[5] The rooms were locked at the time of the search. The rooms were opened by a key found on Mr. Amirhoushmand’s key chain. There is no evidence that Ms. Johannes had keys to the rooms or that there were any spare keys in the residence.
[6] The preliminary inquiry judge correctly articulated the elements of possession as knowledge and control, as well as the different forms of possession: actual, constructive and joint possession: Reasons for Decision, page 5. He instructed himself on the law applicable to the role of a preliminary inquiry judge as succinctly summarized by Hill J. in R. v. Pinnock, [2007] O.J. No. 1599 (Ont. S.C.), at para. 42: Reasons for Decision, pages 6 to 10.
[7] There is no direct evidence against Ms. Johannes. The preliminary inquiry judge made these inferences from the evidence:
- The basement is finished and there is a children’s play area in the open space area of the basement. To get to that area, Ms. Johannes would pass by the two rooms in question.
- The door locks on these rooms is obvious.
- Ms. Johannes is a regular, if not the primary, caretaker of her children; and
- On the basis of the intercepted communication adduced, Ms. Johannes has a loving relationship with her spouse, Mr. Amirhoushmand.
[8] Several reasonable inferences may readily be drawn on the evidence:
- Ms. Johannes is aware of the two locked rooms in her home;
- Ms. Johannes has permitted these rooms to be locked;
- Ms. Johannes is aware that Mr. Amirhoushmand has a key to these rooms;
- The Johannes/Amirhoushmand family stores common seasonal home items, such as a Christmas tree, in the cold cellar;
- A money counter is in plain view in the cold cellar;
- A vacuum sealer is in plain view on the desk in the basement bedroom; and
- Ms. Johannes has opened the mail addressed to her at that address, as well as the mail to the “home owner” found in the basement bedroom on the bed: Reasons for Decision, pages 12-13.
[9] From the evidence, the preliminary inquiry judge concluded it was also reasonable to infer that Ms. Johannes had been in both rooms regularly because the items, though not in plain view, were not well hidden or secreted and a Christmas tree, regular household items, and bags containing merchandise for her and her children were stored in the cellar: Reasons for Decision, pages 13 to 14.
[10] The preliminary inquiry judge concluded that it was a reasonable inference that the failure of Ms. Johannes to inquire of her spouse why the two cold cellar doors were locked is an indication of her decision to remain in a state of wilful blindness or deliberate ignorance of his criminal activities. The preliminary inquiry judge referred to intercepted communications which revealed the following:
- The couple had a loving and trusting relationship;
- Ms. Johannes did not question Mr. Amirhoushmand when he told her that he was in the middle of something and needed privacy;
- She did not question him when he told her to stay away from the home, nor did she question that she text him when she was coming home; and,
- They ended the conversation in a loving and trusting way.
[11] From this evidence, the preliminary inquiry judge concluded that it was reasonable to infer that Ms. Johannes had the requisite elements of possession, namely, knowledge and control: Reasons for Decision, pages 14 to 15.
[12] The preliminary inquiry judge took judicial notice of the fact that drug dealing is illegal and drugs are a valuable commodity. He concluded it was reasonable to make the following inferences:
- Drug dealers will not share access to their product or offence-related property with anyone who is unaware of their illicit property; and
- Given the value of the drugs, the fact that they were not hidden was a further indication of Ms. Johannes’ possession of the drugs, the police badge and the warrant card found in the room: Reasons for Decision, pages 15 to 16.
LAW
[13] Under s. 548 of the Criminal Code, the question a preliminary inquiry judge must answer is whether “there is any evidence upon which a reasonable jury properly instructed could return a verdict of guilty.” R. v. Arcuri, 2001 SCC 54, [2001] 2 SCR 828, at para. 21. In this analysis “only the inferences that favour the Crown are to be considered”: Pinnock, at para. 42.
[14] When the prosecution’s case is circumstantial, the preliminary inquiry judge must assess the evidence to determine whether it is reasonably capable of supporting the inferences that the prosecution asked the jury draw. The judge does not draw factual inferences, assess credibility or ask whether she would find the accused guilty: Arcuri, at para. 23.
[15] The power of a judge reviewing an order for committal is limited. The scope of review of certiorari is confined to a determination of whether “there is any evidence before the committing justice upon which acting judicially he could form an opinion that the evidence is sufficient to put the accused on trial”: R. v. Manickavasagar, [2004] O.J. No. 600 (Ont. C.A.), at para. 4. It is not to determine whether there is any evidence upon which a reasonable jury, properly instructed, would convict: R. v. Manickavasagar, at para. 3.
[16] Ms. Johannes describes the preliminary inquiry judge’s inferences as speculative and not based on a reasonable assessment of the evidence. The Crown contends that the inferences were reasonable and open to the preliminary inquiry judge to make.
CONCLUSION
[17] I conclude that there was no evidence before the preliminary inquiry judge from which he could infer that Ms. Johannes did not make inquiries of her spouse on why the doors to the cellar and basement were locked. To make that assumption simply on the basis of the fact that they are spouses is speculative. There was no basis to support a finding of wilful blindness as an avenue of fixing Ms. Johannes with liability.
[18] However, the other inference drawn by the preliminary inquiry judge was “reasonably and logically drawn from … facts established by the evidence”: R. v. Pinnock, at para. 42. Therefore, there is sufficient evidence upon which the preliminary inquiry judge acting judicially could form the opinion that there is sufficient evidence to attribute the elements of possession of the items to Ms. Johannes and to commit her to trial. Ms. Johannes’ application for Certiorari is dismissed.