





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



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
    appellants 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
    appellants 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 appellants 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 judges 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
accuseds
duffle bag
    and on the dresser.  The doctrine of
    wilful blindness applies when suspicion in an
accuseds
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.


