R v. Campbell, 2019 ONSC 1938

COURT FILE NO.: 16-A10921 DATE: 20190327

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN – and – NEHEMIAH S. CAMPBELL

Counsel: Matthew Geigen-Miller, for the Crown Michael A. Smith, for the Accused

HEARD: January 15-18, 21, 22, 25, and 28, 2019

REASONS FOR JUDGMENT Justice C.T. Hackland

OVERVIEW

1The accused is charged on a 7 count indictment. These charges arise out of a shooting incident in which the accused was allegedly involved, which occurred in the early morning hours of May 23rd, 2016 near the intersection of Slater and O’Connor Streets in downtown Ottawa. The accused and an innocent bystander were both wounded in the incident.

2The evidence, substantially based on a video compilation (ex. 3) from surveillance cameras in the vicinity of the shooting, discloses that the shooting began when a white sedan, travelling east on Slater Street pulled over to the curb at the south west corner of Slater and O’Connor Streets. The passenger side door of the white sedan opened, shots were fired by an occupant of the vehicle using a handgun. At that point the accused and a number of other persons who were standing on the corner, ran away in different directions.

3The accused can be seen running about a half block south on the west side of O’Connor Street, at which point he is no longer in the site line of the video. The evidence establishes that there was another shooter in the vicinity of where the accused is seen running, who subsequently returned fire using a 9 mm handgun, in the direction of the white sedan which by then had rounded the corner and was accelerating away southbound on O’Connor Street.

4The Crown’s theory is that the person firing the 9 mm handgun at the escaping white sedan was the accused.

5The accused is charged with reckless discharge of a firearm (count 1); possessing a firearm while prohibited (count 4); possessing a loaded prohibited firearm without a license (count 5); possession of a prohibited firearm (count 6) and breach of recognizance (count 7).

6The accused was also charged with unlawfully causing bodily harm to D.K., the innocent bystander who was wounded (count 2), and using a firearm while committing the offence of unlawfully causing bodily harm (count 3). At the close of the Crown’s case, I allowed the defence motion for a directed acquittal on counts 2 and 3 for oral reasons read into the record. Essentially, I ruled that the evidence established that D.K. was wounded by the shooter in the white sedan and not by the accused. Moreover, this was not a case such as R. v. J.S.R., 2012 ONCA 568 in which a shooter can be said to have caused bodily harm by engaging in a mutual agreement to have a gunfight on a public street thereby jointly creating the risk to bystanders. The evidence on this record shows no advance agreement to engage in a gunfight, rather the facts suggest the accused, (if the accused was the shooter), returned fire after being attacked and wounded and after running some distance away from the scene of the initial shooting.

7The weapons charges (counts 1, 4, 5 and 6) require the Crown to prove beyond a reasonable doubt that the accused was the person firing the 9 mm caliber handgun in this incident. There is direct evidence placing the accused at the scene, at or where the shooter was firing a 9 mm handgun. In particular, there is the surveillance video compilation (ex. 3) and a defence witness Mr. Daoud, an acquaintance of the accused who was speaking to him on the street corner just before the white sedan pulled up and an occupant of the car began shooting. The evidence is also partly circumstantial as to whether the accused can be connected with the 9 mm handgun used by the shooter. This handgun was located the day following the shooting along with the accused’s wallet and a stash of cash, in the trunk of a car being driven by Ms. A.Y., the mother of the accused’s child. The child was also in the car. Ms. A.Y., along with the accused’s mother, tended to the accused in hospital immediately after the shooting.

THE EVIDENCE

8I deal first with the video compilation (ex. 3) assembled by the police from surveillance cameras on a large office building on the south east corner of Slater and O’Connor Streets. Some of the videos look west on Slater St. and show a group of men standing on the corner just before and as a white sedan pulls over to the curb and gun muzzle flashes can be seen as the car door opens and the persons on the sidewalk run for safety. This video shows the accused and the bystander, both likely wounded, running south on O’Connor Street to escape the gunfire.

9A video facing O’Connor Street picks up the accused running south on O’Connor Street and attempting to shelter between parked cars. It also shows the wounded bystander cutting left across the street and diving under a parked vehicle. From the same video one sees the accused running south on O’Connor Street gripping his right lower arm with his left hand and holding it against his body. Just before the video loses sight of the accused, he can be seen to be pivoting around to his right to face the white sedan which at this point has rounded the corner and is accelerating south on O’Connor Street, apparently to escape the scene.

10Because these events occurred at approximately 2:50 a.m. and in full darkness, the lighting comes from streetlights and some signage on adjacent buildings. The videos are reasonably clear, however not sufficiently so as to allow for facial identifications. Also, as noted, just as the accused pivots around toward the fleeing vehicle, the video loses sight of him so that it is not possible to see whether he is holding or firing a handgun.

11There is another significant video taken from a municipal traffic surveillance camera located one block south (corner of Laurier and O’Connor) of the location where someone was firing a 9 mm handgun. This video shows, albeit from a considerable distance, a man in a white tee shirt running south on O’Connor Street, in between parked cars and then, significantly, stepping onto the sidewalk and appearing to fire a handgun in the direction of the fleeing southbound white sedan. One sees what looks like a muzzle flash. This person is in the approximate location on the east sidewalk of O’Connor Street where fourteen 9 mm spent bullet cartridges were found by police following the shooting. The defence suggests the flash visible in the video from the traffic surveillance camera could be from a cellphone rather than a muzzle flash from a handgun.

12I am satisfied beyond a reasonable doubt that the very distinctive individual in the white t-shirt, seen with good clarity in the video compilation, is in fact the accused. This identification was vigorously challenged in cross-examination but was ultimately confirmed when Mr. Daoud, a defence witness who knew the accused for many years and who was present and visible in the videos, confirmed that the man in the white t-shirt is the accused. Having said that, the only surveillance video actually showing someone in a white tee shirt shooting a handgun on O’Connor Street at the material time and place on the O’Connor Street sidewalk, was the traffic video surveillance images taken from a block away. In my opinion this video cannot, standing on its own, prove that the individual apparently shooting a handgun, is the accused, given the distance and poor quality of the image. However this video, particularly when viewed in conjunction with the other videos, provides significant evidence that the white tee shirted man firing a handgun is the accused.

13I will summarize the forensic evidence. The shooter in the white sedan was firing bullets from a .45 caliber handgun. The police located 6 spent casings, all on Slater Street in and around the corner of O’Connor Street where the white sedan pulled up and an occupant of the vehicle started shooting at bystanders on the corner. The other shooter, subsequently returned fire using a 9 mm handgun. Thirteen spent 9 mm cartridges and a bullet were retrieved on O’Connor Street about half way south on O’Connor Street from the corner where the initial shots were fired. These casings are in the location where the accused can be seen darting between parked cars as he ran away from the attackers in the white sedan. There was a blood spatter at the scene which begins in the area where the accused is seen in the video running south on O’Connor Street beside parked cars and more spatter on the sidewalk on the west side of O’Connor Street where the traffic video shows a man in a white shirt apparently firing a handgun. The blood spatter crosses the street onto the opposite sidewalk in the vicinity where the video shows the accused with a large apparent blood stain on his white t-shirt.

14Forensic testing matched a swab from the blood spatter trail to a known sample of the accused’s blood with a random match possibility of one in greater than one trillion. The blood spatter trail is that of the accused and is very likely that of the shooter given its proximity to the 9 mm caliber spent cartridges located where the blood trail begins on the west side of O’Connor Street (see ex. 2, photo 4). The blood trail and the spent cartridges are in the locations where the video shows the accused running south on O’Connor Street as he fled the shooters in the white sedan.

15In summary, taking together the video images of the accused running a particular southerly path along the parked cars on the west side of O’Connor Street following the initial shooting, the location of the accused’s blood spatter trail starting on the sidewalk near the spent 9 mm cartridges and the traffic video showing a man wearing a white tee shirt, apparently firing a handgun, amounts to very strong evidence of the accused being the shooter.

16What became of the handgun from which the spent 9 mm cartridges were ejected at the scene of the shooting? This gun was indeed recovered and matched, through ballistic test firing, to the casings at the scene. It was recovered by police the day after the shooting in the trunk of a car being driven by Ms. A.Y. with the accused’s three year old daughter also in the vehicle. In the trunk with the 9 mm handgun was the accused’s wallet containing his identification. There was blood on the wallet which was forensically matched to the accused. There were no fingerprints or blood on the handgun. The Crown suggests the gun was wiped clean to avoid identification.

17About 17 hours before Ms. A.Y. was stopped by the police, she was with the accused and his mother at the hospital where he was being treated for a bullet wound in his right arm incurred in this shooting. The Crown suggests this was when the accused gave Ms. A.Y. his blood smeared wallet.

18Cst. Terlow testified he was dispatched to the hospital where the accused was being treated for a gunshot wound. Upon arrival he observed the accused had a circular wound in his right bicep which was dripping blood. He did not attempt to question the accused however he checked the accused’s belongings to make sure there was no gun. There were two females with the accused. One was the accused’s mother and a younger woman in the 18-25 age group he later identified as Ms. A.Y. Cst. Terlow described Ms. A.Y. as rubbing the accused’s leg and comforting him leaving the officer with the impression that she and the accused had an intimate relationship. The accused’s wallet was inside the accused’s blue jeans and he was able to identify the wallet as the one retrieved from the trunk of Ms. A.Y.’s car the next day. Cst. Terlow testified that at one point, the accused’s mother came out of the room and began to speak to Cst. Terlow but the accused intervened and told her not to speak to him.

19The Crown called as a witness the bystander who was shot in the hand in this incident. He testified he had been partying with friends in a nearby night club and when it closed around 2:30 a.m. he found himself standing near the corner of Slater and O’Connor Streets. Quite suddenly he heard shots ring out and realized he had been shot in the hand. He ran in a panic south on O’Connor Street and then pivoted across the street and under a parked vehicle to escape whoever was shooting. This can be clearly seen on the videos. He acknowledged being impaired from an evening’s drinking and was in a panic from being suddenly shot. Shortly after being discharged from hospital he gave a statement to police which he was no longer able to remember even after reading it and attempting to refresh his memory. In the circumstance, I allowed the Crown’s motion to have this statement entered into evidence under the past recollection recorded exception to the hearsay rule.

20In his statement to the police the bystander related that as he was running for his life, he observed a man wearing a white shirt firing back towards the car. The man wearing the white shirt was black and lighter-skinned. I would put some weight on the bystander’s evidence because his references fit the description of the accused and the videos show the bystander running south on O’Connor Street initially right behind the accused. The bystander’s essential recollection is that the man in the white shirt had a gun and was shooting back at the white car. Irrespective of how exhausted the bystander was when he gave this statement I accept that this observation as provided in his police statement was likely accurate and it is supported by the balance of the evidence.

21The defence called two witnesses, a neurologist who assessed the accused’s nerve damage from his bullet wound after the shooting and Mr. Daoud, a friend of the accused who had unexpectedly met the accused in a nightclub near the scene of the shooting and was present on the street corner when the shooting started.

22The neurologist, Dr. Klein, examined the accused on one occasion 6 months after the shooting to assess his recovery. He testified that the accused, who is right hand dominant, suffered a bullet wound to the upper right arm which resulted in an immediate loss of radial nerve function. The left arm was not injured. The right median and ulnar nerves were not injured. The injury was to the right radial nerve.

23Dr. Klein explained that the accused complained of a loss of extension to his right wrist and fingers and numbness to the back of his hand “consistent with an acute injury to the ulnar nerve”. He testified that as soon as his ulnar nerve was damaged the accused would have suffered a wrist drop effect and an inability to extend his right arm straight out. On the other hand, the median nerve was not damaged. The median nerve controls the flex of the fingers and in particular the thumb, index finger and the middle digit. The trigger finger would be the index finger. Dr. Klein explained by way of example, the radial nerve injury suffered by the accused would make it difficult, although not impossible, to reach out and rotate a door knob.

24In cross-examination Dr. Klein acknowledged that his discussion of the accused’s limitations was based on the history he took from the accused. Dr. Klein did not carry out any functional testing. He confirmed that a person with the accused’s injury would likely be able to shoot adequately if he were to support his injured arm and hand with his uninjured hand.

25In my opinion, Dr. Klein’s evidence does not support the proposition that the accused was unlikely to have been shooting a handgun in this incident. Clearly he would have needed to support his injured right arm and hand with his uninjured arm and hand, which in any event is a normal way of firing a handgun according to one of the police witnesses (Det. Meehan). If the accused was the shooter in this case, he was engaged in a dynamic shooting situation, either in a defensive or retaliatory mode, and would have had little time to contemplate his level of impairment. The evidence indicates that bullet fragments were sprayed all along the walls and windows of the building on the east side of O’Connor Street in the general direction the shooter was aiming. The issue in this case is whether the accused fired the handgun, not whether he could do so easily or accurately.

26The defence witness Mr. Daoud testified that he had grown up with the accused in the same neighborhood and they were friendly. Mr. Daoud acknowledged that he had a significant criminal record but currently has a child and a good job. He sees the accused a couple of times a year socially. He knows Ms. A.Y. as well. He described her as the accused’s “baby momma”. He said that Ms. A.Y. held parties at her residence in his old neighborhood which he would attend in the company of the accused and several of the other people who were hanging out with the accused just before this shooting occurred. He pointed out several of these individuals in the videos.

27Mr. Daoud testified that he and his friend Ajax whom he described as “a tall lanky 6’11” black guy…he was shot dead a few years back”…ran into the accused in a nightclub at about 1:00 a.m. and they had a couple of drinks. The accused was with “a lot of guys”. When the club was closed down around 2:30 a.m. a group of people hung around outside on the nearby corner of Slater and O’Connor Street. He said that all of a sudden gun shots rang out – he could not see from where. He was grazed by a bullet. He heard the accused say “shit I got shot”. He (Daoud) then ran toward some parked cars seeking cover. He said the accused was in agony with bleeding down his right arm. He said after the shooting ended people regrouped briefly and for his part he panicked and got into a cab and left the scene.

28Mr. Daoud said that he did not see the accused with a gun that evening. He was not directly asked if he saw or heard the accused or anyone else shooting back at the white sedan. Mr. Daoud did point out that his eyes were not on the accused during this incident and indeed the videos show Mr. Daoud walking back and forth on the west side of O’Connor Street with his back to the area where the 9 mm shell casings were found. After the incident Mr. Daoud got into a cab and fled the scene. He said the accused was also about to get into the cab, but the cab driver would not allow him to get in because he was bleeding. Mr. Daoud did not call the police and did not seek medical attention for himself. He did speak to the accused by phone after the incident and does not recall the conversation.

29I do not believe Mr. Daoud’s testimony that he did not see the accused with a gun or about his lack of awareness that someone was firing back at the white sedan. Mr. Daoud was careful to say he was not watching the accused throughout the incident – he was attempting to run to safety. Mr. Daoud acknowledged his serious criminal record including weapons charges and he confirmed that one woman and several men seen on the video are associates of the accused and were persons who he had seen at Ms. A.Y.’s residence associating with the accused. I was left with the strong impression that Mr. Daoud was an associate of the accused attempting to help him by falsely asserting that he did not see the accused possessing or using a gun during this incident.

30Returning to the video, I would note that prior to the arrival of the white sedan the accused is seen walking with an unidentified woman (Mr. Daoud said it was an associate of the accused, but not Ms. A.Y.) to the trunk of a parked vehicle. The woman is seen opening the trunk and reaching for a concealed object and handing it to the accused and the two of them then sit in the car for a few minutes. The accused then gets out of the car and tucks an object under his white t-shirt and then crosses O’Connor Street and walks north to the corner of Slater Street, where the white sedan car arrives soon after and the shooting begins. I agree with the Crown that this appears to be the accused arming himself with and then concealing a handgun. Mr. Daoud explained that there was security at the night club entrance so that might explain why the accused had stashed a gun in this vehicle while he was in the nightclub.

31Returning again to the video, just after the exchange of gunfire, the accused is seen crossing O’Connor Street back to the parked vehicle and handing off an object to an unidentified man who then runs down an alleyway (also captured on video) and apparently hides or stashes the object. This object appears to be a handgun, as the Crown alleges, particularly upon repeated views of this video. The defence says conceivably it could be the accused’s cell phone.

32As noted the identification of the accused as the shooter of a 9 mm handgun in this incident is partly circumstantial. The appropriate treatment of circumstantial evidence was discussed by the Supreme Court of Canada in R. v. Villaroman 2016 SCC 33 at paras. 37 and 38:

37When assessing circumstantial evidence, the trier of fact should consider “other plausible theor[ies]” and “other reasonable possibilities” which are inconsistent with guilt: R. v. Comba, [1938] O.R. 200 (C.A.), at pp. 205 and 211, per Middleton J.A., aff’d, [1938] S.C.R. 396; R. v. Baigent, 2013 BCCA 28, 335 B.C.A.C. 11, at para. 20; R. v. Mitchell, [2008] QCA 394 (AustLII), at para. 35. I agree with the appellant that the Crown thus may need to negative these reasonable possibilities, but certainly does not need to “negative every possible conjecture, no matter how irrational or fanciful, which might be consistent with the innocence of the accused”: R. v. Bagshaw, [1972] S.C.R. 2, at p. 8. “Other plausible theories” or “other reasonable possibilities” must be based on logic and experience applied to the evidence or the absence of evidence, not on speculation.

38Of course, the line between a “plausible theory” and “speculation” is not always easy to draw. But the basic question is whether the circumstantial evidence, viewed logically and in light of human experience, is reasonably capable of supporting an inference other than that the accused is guilty.

33Cromwell J.A. also explained in Villaroman, at paras. 35 to 36:

35At one time, it was said that in circumstantial cases, “conclusions alternative to the guilt of the accused must be rational conclusions based on inferences drawn from proven facts”: see R. v. McIver, [1965] 2 O.R. 475 (C.A.), at p. 479, aff’d without discussion of this point, [1966] S.C.R. 254. However, that view is no longer accepted. In assessing circumstantial evidence, inferences consistent with innocence do not have to arise from proven facts: R. v. Khela, 2009 SCC 4, [2009] 1 S.C.R. 104, at para. 58; see also R. v. Defaveri, 2014 BCCA 370, 361 B.C.A.C. 301, at para. 10; R. v. Bui, 2014 ONCA 614, 14 C.R. (7th) 149, at para. 28. Requiring proven facts to support explanations other than guilt wrongly puts an obligation on an accused to prove facts and is contrary to the rule that whether there is a reasonable doubt is assessed by considering all of the evidence. The issue with respect to circumstantial evidence is the range of reasonable inferences that can be drawn from it. If there are reasonable inferences other than guilt, the Crown’s evidence does not meet the standard of proof beyond a reasonable doubt.

36I agree with the respondent’s position that a reasonable doubt, or theory alternative to guilt, is not rendered “speculative” by the mere fact that it arises from a lack of evidence. As stated by this Court in Lifchus, a reasonable doubt “is a doubt based on reason and common sense which must be logically based upon the evidence or lack of evidence”: para. 30 (emphasis added). A certain gap in the evidence may result in inferences other than guilt. But those inferences must be reasonable given the evidence and the absence of evidence, assessed logically, and in light of human experience and common sense.

34The essential question then is, has the Crown proven beyond a reasonable doubt that the accused was the shooter in this incident ie. the person firing a 9 mm handgun at the white sedan as it sped by him in a southerly direction on O’Connor Street? For the reasons summarized below I am satisfied beyond a reasonable doubt that the accused was the shooter in this incident.

35The accused is prominently observable in the videos. He appears to arm himself with a handgun, secreted under his white shirt and walks to the street corner where he is shot in the arm by assailants pulling up in a white sedan. He is seen to flee south on the west side of O’Connor Street running by parked cars and using his left arm to hold his wounded right arm against his waist. He is seen to pivot around to face the white sedan then speeding away beside him. Spent 9 mm cartridges are gathered from the path along O’Connor Street where the accused was seen to be running.

36There is blood spatter in the area of the 9 mm cartridges (part of a blood trail crossing O’Connor Street and onto the east sidewalk). This was the accused’s blood. The shooter was likely bleeding given the proximity of the beginning of the blood trail and the location of the 9 mm cartridges ejected from the shooter’s gun. This 9 mm handgun was recovered and matched to spent cartridges at the scene. This handgun was recovered the day after the shooting in the trunk of Ms. A.Y.’s car – Ms. A.Y. being the mother of the accused’s child and the person tending to him in hospital following the shooting. The weapon was in her trunk along with the accused’s blood stained wallet and identification.

37I acknowledge that the defence has no burden of proof and that a reasonable doubt can be founded on an absence of evidence, as explained in Villaroman. In the present case the defence submits that the evidence leaves open the possibility that someone other than the accused was shooting this 9 mm handgun at 2:50 a.m. at this particular location on O’Connor Street. The suggestion is that the shooter could have been one of the men who ran south on O’Conner Street after the occupants of the white sedan began shooting. A shooter unseen in the videos could have stood in the street side recesses of the building near where the spent 9 mm cartridges were found. The accused’s blood spatter could have been near the cartridges because he was running by that location. Possibly this shooter knew Ms. A.Y. and convinced her to allow him or her to stash the gun in her trunk. Some of the people on the street were associated with the accused and Ms. A.Y. based on Mr. Daoud’s testimony that he had seen them before at Ms. A.Y.’s home.

38I would place the defence theory squarely in the realm of speculation. The direct evidence of the accused’s involvement in this shooting as seen in the videos and the circumstantial evidence I have summarized above goes well beyond suspicion and confirms beyond a reasonable doubt that the accused was shooting this 9 mm handgun in this incident. This view flows logically from the evidence proven and defies explanation on the basis of coincidence or happenstance. Of particular importance, given my finding that the large man in the white t-shirt is the accused, is the city traffic video which upon repeated viewing shows the accused stepping onto the sidewalk from in between parked cars and firing a handgun in the direction of the escaping white sedan.

39For the foregoing reasons, I find the accused guilty on the weapon’s charges being counts 1, 4, 5 and 6.

40Count 7 alleges the accused violated a recognizance to which he was subject at the time of this incident. A condition of the recognizance required that he “stay out of Ontario EXCEPT in company of your surety at all times and only for court purposes. May visit his kids in Ontario for court purposes and to meet with lawyer”. The previously described videos clearly show the accused in Ontario, not with his surety (his mother) and walking along O’Connor Street at 2:50 a.m. This could not have been a court or lawyer related visit. Mr. Daoud places the accused drinking in a bar prior to the shooting incident. I am satisfied beyond a reasonable doubt the accused was in breach of the terms of his recognizance. The accused is found guilty on count 7.