ONTARIO COURT OF JUSTICE DATE: 2023 11 17 COURT FILE No.: Halton Info # 21-939

BETWEEN:

HIS MAJESTY THE KING

— AND —

CRAIG GRANT

Before Justice Jennifer Campitelli

Heard on July 24, 25, 28 and October 3, 2023 Reasons for Judgment released on November 17, 2023

Mark Miller................................ counsel for the Public Prosecution Service of Canada Deepak Paradkar...................................................... counsel for the accused Craig Grant

CAMPITELLI J.:

[1] Mr. Grant faces six counts on the information, which is before the court. Each count is directly related to the execution of a Controlled Drugs and Substances Act Search Warrant on September 19, 2020, by the Halton Regional Police Service at 2102-5025 Four Springs Avenue, Mississauga, Ontario. Investigators seized a number of items; however, the counts Mr. Grant faces on the information specifically relate to the seizure of a Smith and Wesson Model SD40EV pistol, an extended round magazine with ammunition and readily accessible ammunition, which the parties agree was capable of being discharged in the firearm.

[2] The parties have jointly submitted that the sole issue, which requires my determination is possession with respect to the firearm, the detachable magazine and the ammunition. Simply put, if the crown is able to establish that Mr. Grant was in possession of these items beyond a reasonable doubt, the defence concedes all other elements of the offences charged have been made out.

The Evidence of the Halton Regional Police Service

[3] The evidence of the Halton Regional Police Service is largely uncontested. On September 19, 2020, investigators executed a Controlled Drugs and Substances Act Search Warrant at 2102-5025 Four Springs Avenue, Mississauga, Ontario. Detective St. Denis testified that, after he learned the warrant had been signed, he assembled a team of officers who attended the address on Four Springs Avenue. Cst. Anastasakis obtained a key for the unit from management, and investigators used the key to enter the unit in “stack” formation. The officers announced their presence, made it clear they were police officers and advised the occupants, on entry, that the purpose of entry was to execute a search warrant.

[4] 2102-5025 Four Springs Avenue, Mississauga, Ontario is a two-bedroom condominium unit. Entry and exit videos were filed as exhibits at trial [1], and serve to provide a visual with respect to the layout of that premise. Once inside the unit, investigators located six individuals in the main living area. In addition to Mr. Grant, Russmen Bhullar, Camilus Charles, Ahman Ottley, Khedive Morrison-Thomas, and Uzziah Jenkins were all present. The officers acknowledged that the lighting conditions were very poor on entry, particularly in the living room area, where they recall the occupants were situated.

[5] 2102-5025 Four Springs Avenue was described by investigators as being a small living space. Detective St. Denis characterized the premise as a “very small condo unit”. Cst. Bechard testified that the unit was a “smaller condo”. Ryan Christopher’s evidence was that the premise was a “very small, very small unit”. I find that the entry and exit videos are corroborative of the police evidence on this point.

[6] Once the residence was secure, investigators conducted a thorough search. Ryan Christopher, a former Halton Regional Police Officer, was assigned to search the secondary bedroom. He testified that, if you were looking directly at the bed, he was responsible for searching the dresser on the left side. On top of that dresser, he recalled locating an unzipped black satchel containing the Smith and Wesson handgun, the magazine, cash and identity documents in the name of Craig Grant. The documents included a driver’s license, health card, and a VISA debit card. [2] It was Mr. Christopher’s evidence that he also located, in one of the drawers of that same dresser, ammunition together with a SIN card in the name of Craig Grant. [3]

[7] Cst. Bokstein was responsible for searching the dresser on the right side of the bed in the secondary bedroom, as well as the closet. He testified that he located a backpack and a money counter on that dresser. [4] He also recalled locating numerous items of mail in the name of Craig Grant in the closet, as well as four cell phones. [5]

[8] Finally, Cst. Bechard, who was responsible for cataloguing the exhibits testified that he located a bible, which had the name Craig Grant written on the side of it in one of the drawers of the right-side dresser. [6]

[9] Ultimately, Mr. Grant was the only individual charged with any criminal offences as a result of the items located within 2102-5025 Four Springs Avenue. All other parties present within the residence upon police entry were released unconditionally.

The Evidence of Craig Grant

[10] Mr. Grant was not an impressive witness. He provided evidence that I find was intentionally vague, internally inconsistent and at times, unbelievable. Aspects of his evidence were confusing and inherently implausible. Moreover, I find that when Mr. Grant was confronted with the obvious internal inconsistencies in his evidence, he became evasive and offered illogical explanations. I did not find Mr. Grant to be a credible witness, nor did I find his evidence to be reliable.

[11] Mr. Grant testified that he had been living at 2102-5025 Four Springs Avenue, Mississauga for about two or three months before the police entered on September 19, 2020. He acknowledged that the secondary bedroom in that unit, where investigators located the firearm, magazine and ammunition was his bedroom. Mr. Grant also testified that the bag or satchel, which contained the firearm and the magazine when the police gained entry into his unit belonged to him. However, he was certain that the last time he carried the bag with him was September 18, 2020, when he took it to the mall to buy new sneakers. Mr. Grant was very clear in his evidence that on September 18, 2020, his satchel did not contain a firearm, nor did it contain a magazine. Moreover, when he left his satchel on the nightstand beside the bed, it was zipped closed.

[12] When he provided his evidence in-chief, Mr. Grant testified that in the early morning hours of September 19, 2020, he was with a female he had been seeing named “Riri”. Mr. Grant recalled that “Riri” left around 10:00 a.m. that morning. It was Mr. Grant’s evidence that he left the unit himself around 2:00 p.m. to get some “weed and liquor”. He described this as “pretty much around the same time she left” in reference to “Riri”. Mr. Grant testified that he didn’t take his satchel with him because he had money on his person. It was also his evidence in-chief that when he left the unit at 2:00 p.m. nobody else was present. Mr. Grant recalled that he had to come back to the unit by 4:00 p.m., as his friend “Uzzi” was coming over. Mr. Grant explained, that “Uzzi” is how he refers to Mr. Jenkins. Mr. Grant then clarified that he also met up with his friend “Ashley” to pick up a birthday gift between 2:00 p.m. and 4:00 p.m. He testified that she bought him “Kilani” earrings, which were contained in a white gift bag. It was his evidence that his friend “Albert” drove him to meet up with “Ashley” in his Audi. Mr. Grant testified that he returned to his unit to meet “Uzzi” and do a “full smoke” at 4:20 p.m. He recalled the other parties located upon police entry arrived at his address around 5:00 p.m.

[13] When pressed under cross examination, Mr. Grant’s evidence about the timeline between approximately 2:00 p.m. and 4:00 p.m. on September 19, 2020 changed. Mr. Grant testified that “Uzzi” arrived at his unit after he purchased his marihuana and alcohol, but before he met up with “Ashley”. His evidence on that point was as follows, “I came back because Uzzi was pulling up”. Realizing this version of his evidence was inconsistent with what he previously testified to, Mr. Grant abruptly stated, “Nah, I just realized he was in the crib the whole time I was there, but – ‘cause when I left for the jewelry, he was there, but…” Ultimately, it became Mr. Grant’s evidence that “Uzzi” was in his unit alone during the period of time he was out with “Albert” meeting up with “Ashley”. This version of his evidence was inconsistent with the evidence he provided in-chief.

[14] When asked to provide further detail under cross examination, Mr. Grant’s evidence also changed with respect to when he started smoking marihuana with “Uzzi” on the afternoon of September 19, 2020. Initially, it was Mr. Grant’s evidence that the pair participated in a “full smoke” at 4:20 p.m. However, his evidence then became that he smoked a “little bit” of marihuana with “Uzzi” before he left to pick up his earrings from “Ashley”. I find these internal inconsistencies in Mr. Grant’s evidence adversely impacted his credibility, and the reliability of his evidence overall.

[15] In addition, I find Mr. Grant’s evidence surrounding this purported trip to pick up earrings from “Ashley” at Hurontario St. and Dundas St. in Mississauga to be nonsensical. Mr. Grant testified that his friend “Albert” came to meet up with him that afternoon, as he wanted to discuss taking him to a Raptor’s game for his birthday. When asked why the pair couldn’t discuss this over the phone, I find Mr. Grant was not able to provide a reasonable explanation. I completely reject Mr. Grant’s evidence surrounding this point, that the pair were knocking off “two birds with one stone”. I also find it unbelievable that Mr. Grant would meet up with “Ashley” on the other side of Mississauga, so she could quickly hand him earrings, and give him a hug. These troubling aspects of Mr. Grant’s evidence also adversely impacted his credibility overall and the ultimate reliability of his evidence.

[16] Mr. Grant testified that Mr. Morrison-Thomas, who he refers to as “Biggs” was one of the individuals who arrived at his unit around 5:00 p.m. on September 19, 2020. However, whereas the other visitors were in the main area of the condo “chilling, smoking” and watching TV, Mr. Grant recalled that “Biggs” was in his bedroom on the phone. Mr. Grant remembered that he observed “Biggs” seated in the middle of his bed, closet to the nightstand table, which contained his satchel. It was Mr. Grant’s evidence that, prior to police entry, “Biggs” had been in and out of his bedroom for approximately twenty to thirty minutes. When the police entered, Mr. Grant testified that “Biggs” came out of his room. He recalled, “he just ran out of the room. He didn’t – not run, but like, you know, it’s like a quick movement out of the room.” This corroborates the evidence provided by investigators that when they entered the unit all occupants, including “Biggs”, were in the main living area.

[17] Mr. Grant was unequivocal in his evidence with respect to the firearm, magazine and ammunition. Those items did not belong to him, and he had no knowledge of their presence in his unit on September 19, 2020. Simply put, he did not place the firearm and the magazine in his satchel, and he did not place the loose rounds of ammunition in his nightside table.

Grounding Legal Principles

[18] The crown relies on circumstantial evidence to prove possession of the firearm, the magazine and the ammunition. As such, the principles as outlined in R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000 are applicable, and provide helpful guidance.

[19] When assessing circumstantial evidence, the trier of fact should consider other plausible theories and other reasonable possibilities, which are inconsistent with guilt. The crown thus, might need to negative these reasonable possibilities; however, the crown certainly need not negative “every possible conjecture, not matter how irrational or fanciful, which might be consistent with the innocence of the accused”. Other “plausible theories” and other “reasonable possibilities” must be based on logic and experience applied to the evidence or lack of evidence, and not speculation. However, an alternative theory to guilt is not rendered speculative by the mere fact that it arises from the lack of evidence. A certain gap in the evidence may result in inferences other than guilt. But, those inferences must be reasonable given the evidence and absence of evidence, “assessed logically, and in light of human experience”: R. v. Villaroman supra at paras. 36 and 37.

[20] I have also reminded myself that in assessing circumstantial evidence, inferences consistent with innocence do not have to arise from proven facts. Requiring proven facts to supports explanations of other than guilt wrongly puts an obligation on an accused to prove facts. It also runs contrary to the rule that whether there is a reasonable doubt is assessed by considering all of the evidence. In essence, 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: R. v. Villaroman supra at para. 35.

[21] Given that Mr. Grant, the defendant, has provided evidence, the framework set out in R. v. W.(D.), [1991] S.C.J. No. 26 applies. Specifically, the test outlined at paragraph 28:

(1) If I believe the evidence of Mr. Grant, obviously, I must find him not guilty;

(2) Second, even if I do not believe the testimony of Mr. Grant, but I am left in reasonable doubt by it, I must find him not guilty;

(3) Finally, even if I am not left in doubt by the evidence of Mr. Grant, I must ask myself whether on the basis of the evidence which I do accept, if I am convinced beyond a reasonable doubt by that evidence of the guilt of Mr. Grant.

[22] In turning my mind to the analysis I must engage in, I have also reviewed the article written by Paciocco J.A. entitled, “Doubt about Doubt: Coping with W.(D.) And Credibility Assessment” found at 2017 22 Canadian Criminal Law Review 31. In that article, Justice Paciocco helpfully breaks down the W.(D.) principles into five analytical points:

(1) Criminal trial cannot properly be resolved by deciding which conflicting version of events is preferred;

(2) A criminal fact-finder that believes evidence that is inconsistent with the guilt of the accused cannot convict the accused;

(3) Even if a criminal fact-finder does not entirely believe evidence inconsistent with guilt, if the fact-finder is left unsure whether that evidence is true there is a reasonable doubt and an acquittal must follow;

(4) Even where the fact-finder entirely disbelieves evidence inconsistent with guilt, the mere rejection of that evidence does not prove guilt; and

(5) Even where the fact-finder entirely disbelieves evidence inconsistent with guilt, the accused should not be convicted unless the evidence that is given credit proves the accused guilty beyond a reasonable doubt.

Position of the Parties

Crown

[23] The crown relies on the definition of possession as outlined in s. 4(3)(ii) of the Criminal Code of Canada. Specifically, it argues that Mr. Grant had the firearm, the magazine and the ammunition in a place, whether that place belonged to him, or was occupied by him, for the use or benefit of himself or another person. The Crown argues the only reasonable inference, which arises from the evidence is that Mr. Grant was in possession of the items seized. Simply put, there are no other reasonable alternatives available for me to consider. It was Mr. Grant’s residence, his bedroom, his satchel, his money and identification, his nightside table; therefore, his firearm, his magazine and his ammunition. The Crown strongly urges me to find the defence theory to be speculative, and not based on logic or human experience. Instead, it takes the position that the only reasonable inference, which I can draw from the circumstantial evidence on this record is that Mr. Grant is guilty.

Defence

[24] In contrast, the defence argues that it is reasonable to infer that, after hearing the police enter 2102-5025 Four Springs Avenue on September 19, 2020, Mr. Morrison-Thomas or “Biggs” quickly placed both the firearm and the magazine in Mr. Grant’s satchel and disposed of ammunition in his nightside table. The defence stresses that “Biggs” had the opportunity and would have been motivated by wanting to distance himself from those items as soon as he became aware of the police presence. The defence argues its theory is plausible and based on logic and experience when applied to the evidence on this record. Given the defence takes the position there is a reasonable inference other than guilt, it argues I should find Mr. Grant not guilty as charged.

Analysis

[25] I have considered Mr. Grant’s evidence within the context of the complete evidentiary record, which has been placed before me. I do not believe Mr. Grant. I find he provided evidence that was internally inconsistent, farfetched, and illogical. These aspects of his evidence adversely impacted his credibility and the reliability of his evidence overall. Moreover, when confronted with inconsistencies in his evidence, I find Mr. Grant became evasive. To be clear, I do not accept Mr. Grant’s evidence, nor am I left in a reasonable doubt by it.

[26] However, my analysis is far from over. Even though I do not accept Mr. Grant’s evidence, nor am I left in a reasonable doubt by it, I still must ask myself whether, on the basis of the evidence which I do accept, if I am convinced beyond a reasonable doubt of Mr. Grant’s guilt.

[27] In assessing the circumstantial evidence on this particular record, I have considered the defence theory, as I must. In the result, I find it to be inherently implausible.

[28] I have made the following findings of fact:

(1) 2102-5025 Four Springs Avenue, Mississauga was a small condominium unit;

(2) Once investigators used a key to gain entry into the premise, they immediately made their way to the main living area;

(3) When investigators entered the premise on September 19, 2020, all occupants, including “Biggs”, were in the main living area.

[29] Given the police used a key, entered in “stack” formation, immediately announced their presence, and made their way to the main living area of the unit, I do not find it is reasonable to infer that “Biggs” would have been able to facilitate what is being suggested by the defence. There simply wasn’t sufficient time.

[30] It is difficult to determine exactly how much time would have elapsed between police entry and their arrival in the main living area. However, based on my findings of fact above, I have concluded the window of time was very short. As such, it is illogical to infer that “Biggs” had time to unzip Mr. Grant’s satchel, discard the firearm and the magazine and discard the ammunition, while still making his way to the main living area of the unit, where he was observed by the police upon entry. I find this theory is not reasonably possible, nor is it plausible. To be clear, I do not find it is a reasonable inference, which can be drawn from the circumstantial evidence on this record.

[31] Carrying my analysis forward, I do find it is reasonable to infer that Mr. Grant was in possession of the firearm, the magazine and the ammunition located in his bedroom. I have concluded that the only reasonable inference, which can be drawn from the circumstantial evidence on this record is that Mr. Grant was in possession of those items. The firearm and the magazine were located in Mr. Grant’s satchel, together with his identification and his currency. Further, the ammunition was located in a drawer, together with Mr. Grant’s SIN card. In the result, the crown has proven beyond a reasonable doubt that Mr. Grant was in possession of each of these items.

Conclusion

[32] In the result, I find Mr. Grant guilty on all counts.

Released: November 17, 2023 Justice Jennifer Campitelli

[1] Entry Video Exhibit #2, Exit Video Exhibit #4 [2] Contents of satchel depicted in Exhibit #3I [3] Contents of left dresser drawer depicted in Exhibit #3K [4] Items located on right dresser depicted in Exhibit #3M [5] Items located in the secondary bedroom closet depicted in Exhibit #3D [6] Photograph of bible located in right dresser drawer depicted in Exhibit 3A