Her Majesty the Queen v. Jahvar Marshall, 2013 ONSC 3315

Court File and Parties

COURT FILE NO.: 330/12

DATE: 2013-06-12

CORRECTED DECISION RELEASED: 2013-06-14

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

Jahvar Marshall

Natalie M. Boivin, for the Crown

Ted Conroy, for the accused

HEARD: May 21, 23 and 24, 2013

CORRECTED JUDGEMENT

Corrected decision: The following paragraphs replace the corresponding paragraphs

in the original judgement issued on June 12, 2013:

Paragraph [2] The last sentence of the paragraph which states “If there was any … body orifice.” is omitted as it was included in error. This is a paragraph I transposed

from an earlier charter motion ruling that I previously rendered. The evidence about

hooping the drug did not come out at trial and was inadvertently included in my decision.

No reliance was placed upon this statement in formulating my decision to convict Mr. Marshall.

Paragraph [6] The name Melissa Coughlin was omitted and corrected as Melissa Coughler.

Paragraph [52] The amount of $700 was replaced by $900.

cornell j.:

1The accused is charged with possession of a loaded prohibited firearm. For the reasons which follow, I find the accused guilty.

Background

2On October 6, 2011, Detective Constable Hall of the Greater Sudbury Police Service received information from a confidential informant that a black male named Kyle was travelling to Sudbury to sell crack cocaine. Kyle would be travelling with his crew which consisted of three other black males and a white female with blonde hair. They would be travelling in a black Toyota with a licence number of BJCD325 and a red Mazda. The drugs were to be taken to 241 Second Avenue, Unit 295 in the City of Greater Sudbury (“the residence”).

3On October 6, 2011 at 10:46 a.m., the black Toyota was observed and followed to the municipal address which had been provided. This vehicle contained two black males.

4Approximately two minutes later, a red vehicle containing two black males and a white female with blonde hair parked in a nearby parking lot. The occupants of these vehicles then proceeded towards the residence, but were not actually observed entering it.

5As the information provided by the confidential informant had been proven to be correct, arrangements were made by the drug squad to begin surveillance of the residential unit and the vehicles which were coming and going to and from it.

6At 2:53 p.m. that afternoon, police followed the red Mazda vehicle and arrested its two occupants, who were subsequently identified as Jahvar Marshall and Melissa Coughler.

7At 3:15 p.m., police observed a Hyundai car park near the residence. The occupants of this vehicle entered Unit 295 and came out five minutes later, which led the observing officer to suspect that a drug transaction had taken place. The vehicle was followed, pulled over and an arrest was made when the occupants of the vehicle were found to be in possession of crack cocaine.

8As a result of the information provided by the confidential informant, the police surveillance, and additional information received as a result of the arrest of the occupants of the Hyundai and Mazda vehicles, Constable Hall applied for and received a warrant pursuant to the Controlled Drugs and Substances Act. The warrant permitted the search of 241 Second Avenue, Unit 295 for cocaine.

9At approximately 6:25 p.m., the black Toyota, with two black male occupants, was observed to depart and instructions were given that surveillance be maintained on that vehicle.

10The vehicle was quickly spotted and was followed by Constable Hutton for approximately four kilometres before it was pulled over. The driver was Raymond Khan. After Mr. Khan had been arrested and grounded by the police, a Blackberry and a cell phone were found lying on the ground and were taken into the possession of Constable Hutton.

11A search of the residence pursuant to the warrant began at 8:05 p.m. During the course of the search, a black Lacoste bag with a black strap was located in a closet near the rear door. This bag was found to contain a Burberry receipt, a $25 Master Card gift card and a Taurus .38 calibre Special handgun, which contained five rounds. As a result of this discovery, Cathryn Gagan, Raymond Khan and the accused were jointly charged with possession of a loaded prohibited firearm. Shortly before the trial, the charges were severed and the two other co-accused testified against Mr. Marshall.

Testimony

(i) Detective Constable Hall

12Constable Hall was the lead investigating officer. He was part of the surveillance team observing the residence on October 6, 2011.

13At approximately 10:47 a.m. on that day, Constable Hall observed a black male exit the Mazda vehicle. This individual was subsequently identified as the accused. Constable Hall observed the accused to be wearing a hooded sweatshirt with a red symbol on the shoulder area. The accused was also observed to be carrying a black laptop bag with a black strap.

(ii) Raymond Kahn

14Mr. Kahn testified that he met the accused at school and had known him for approximately three or four years. He indicated that the accused was also known as Kyle.

15According to Mr. Khan, the accused approached him about coming to Sudbury to make some money by selling cocaine. Khan had previously attended in Sudbury with the accused for this purpose. They had arrived a few days earlier with Donald Hibbert and Melissa Coughler, the accused’s girlfriend. During their stay, Khan indicated that they went to “many different areas in Sudbury”.

16On October 6, 2011, they went to Cathryn Gagan’s residence. They arrived shortly before 11:00 a.m. In addition to the accused and Mr. Khan, Donald Hibbert, Melissa Coughler, Cathryn Gagan and Richard Ladouceur were present. There was one additional male person present who Kahn described as “an acquaintance”.

17After arriving at the residence, Kahn proceeded to take a nap. When he awoke, the accused and his girlfriend had left the premises.

18At trial, the black bag which was found in the closet and contained the gun was shown to Kahn. Kahn said that it was the Lacoste bag that the accused had brought with him on the trip to Sudbury. Kahn went on to say that he had seen the bag on the accused “a lot of times”. He testified that he never had possession of the bag and was not aware of its contents.

19On the morning in question, Kahn indicated that the accused and his girlfriend got into an argument. The accused was angry that other people were at the residence and he was concerned about their safety.

20At the time of his arrest, Kahn’s Blackberry was seized and searched. The search revealed photographs of Mr. Kahn holding the gun in question. Kahn testified that a few months earlier, he saw the accused with the gun and thought that it would be cool to take pictures of him holding it. After the pictures were taken, Kahn said that he returned the gun to the accused and that he never saw the gun after that.

21Mr. Kahn has a criminal record including convictions for possession of a weapon and assault with a weapon in 2009. In 2008, a prohibition order was made under Section 110 of the Criminal Code for a five year period.

22On May 21, 2013, Mr. Kahn pleaded guilty to possession of a prohibited weapon while he was subject to the order which had been made under Section 110 of the Criminal Code. Before entering that plea, Kahn received legal advice and indicated that it was his understanding that he would receive a ninety day sentence in connection with the guilty plea if he cooperated with the Crown.

(iii) Cathryn Gagan

23Ms. Gagan was arrested at the time that the search warrant was executed on October 6, 2011. She indicated that her residence is located within a townhouse complex in Sudbury.

24She knows the accused, who resides in Toronto. She indicated that he also uses the name Kyle.

25Kyle had attended at her residence on twenty or more occasions for the purpose of selling cocaine. She had provided him with a key to her residence so that he would always have access.

26Ms. Gagan admitted to being a drug user, although she denied selling cocaine. She received cocaine from the accused in return for the use of her residence.

27She testified that the accused had a shoulder strap bag and that “he always carried that thing.” She never saw anyone else carry the accused’s shoulder bag.

28About one month prior to her arrest, the accused told her that a drug deal had gone bad and that he had been robbed. He said he needed protection. She told him that under no circumstances was he to bring a gun to her residence.

29Ms. Gagan admitted to having a criminal record for driving while impaired. She acknowledged that she was facing a charge as a result of this incident, but stated that there had been no offers made by the Crown in exchange for her testimony.

(iv) Jahvar Marshall

30Mr. Marshall acknowledged that he is also known as Kyle. He has no criminal record.

31He acknowledged that the black Lacoste bag which was seized from the residence during the course of the search was his bag. When he left the residence with his girlfriend, he did not take the bag with him as it was empty. He denied having any knowledge of the contents of the bag, including the gun, at the time that it was seized.

32He admitted that he had been to Sudbury on many occasions to sell drugs as it was possible to “make really good money” selling drugs in Sudbury. He said the street value of cocaine in Sudbury is $100 a gram. He would sell anywhere from $200 to $1500 worth of drugs on each trip. He would come to Sudbury in the company of friends or acquaintances such as Raymond Kahn, so that these individuals could sell their own drugs and make money.

33The drugs were “fronted” to him. He indicated that it would not be a problem for him if he were to lose the drugs or be robbed as his supplier was a friend. He denied having a key to Cathryn Gagan`s residence and denied being robbed in Sudbury.

34He testified that he used the black bag to carry personal items such as his phone, smokes, chargers, drinks and receipts.

35He indicated that although his companions were able to use his bag, the bag was not used to carry drugs. On this particular trip to Sudbury, he brought fourteen ounces of cocaine contained in one baggie, which he kept in his pocket.

36Mr. Marshall initially denied being concerned about his safety. He eventually acknowledged that from newspaper reports, he was aware of drug dealers sometimes being engaged in violent confrontations. During the course of a thorough cross-examination, he eventually acknowledged that he knew he might be robbed or involved in a violent conflict during the course of dealing drugs and that safety was a concern.

37On this particular trip, he arrived on October 5, 2011 and sold fifteen grams of cocaine. On the morning of October 6, 2011, his supplier drove to Sudbury and was paid the sum of $900.

38He indicated that he and his girlfriend left the residence shortly before noon in order to get lunch. After lunch, they were going to go to his girlfriend’s house. He was not sure whether he would return to Ms. Gagan’s residence. If he did not, then one of his friends would take his bag for him.

39He denied having any conversation with Cathryn Gagan about needing a gun for safety. He denied providing the gun to Raymond Kahn to permit him to take photographs with it. He denied that he got in an argument with his girlfriend about the presence of unknown people at the residence and being concerned about his safety.

Analysis

40The Crown`s case is entirely circumstantial. There is no DNA or fingerprint evidence which would tie the accused to the gun.

41In assessing the totality of the evidence which was offered, I am mindful of certain general principles. In R. v. Williams, 2010 ONSC 184 at paras. 56 – 58, Hill J. had this to say:

A determination of guilt or innocence in a criminal trial does not devolve into a credibility contest between witnesses. Such an approach would erode the presumption of innocence and the assigned burden of persuasion of proof beyond a reasonable doubt.

Where credibility is a central issue in a trial, the court must be alert to the relationship between the assessment of credibility and the prosecution’s ultimate burden to prove guilt beyond a reasonable doubt. Mere disbelief of an accused’s evidence does not satisfy the burden of persuasion upon the Crown. The trier of fact must be satisfied on the whole of the evidence that there exists no reasonable doubt as to the guilt of the accused.

A trier of fact, in assessing credibility, considers a variety of factors including the plausibility of evidence having regard to experience and common sense and inherent probabilities/improbabilities, inconsistencies within a witness’ evidence, how a witness’ version of events fits with other evidence in the case, the weight of testimony pointing in a particular direction, motive to fabricate, witness demeanour, etc.

42This is also a case which requires the application of the principles enunciated in R. v. W. (D.) 1991 CanLII 93 (SCC), [1991] S.C.J. No. 26.

43Possession of the gun by the accused, if it is to be established beyond a reasonable doubt, rests largely upon the evidence that was offered by Kahn and Gagan. Both of them have criminal records. In fairness to Ms. Gagan, her single conviction for over .80 is not the type of offence which is generally considered to reflect adversely upon her credibility. The same cannot be said for Mr. Kahn, who has a lengthy criminal record and who has significant incentive to assist the Crown in return for a substantially reduced sentence. When considering the evidence of Kahn and Gagan, I am mindful of the concerns which were expressed in R. v. Vetrovec (1982), 67 C.C.C. (2(d)).

44I find Ms. Gagan to be a credible and reliable witness. She answered questions without hesitation or embellishment. There was no hint of guile during the course of her testimony. To the contrary, she appeared to do her best to answer questions honestly as evidenced by the fact that she admitted that from time to time she has problems with her memory. She admitted to being a drug user. She admitted that she had allowed the accused to use her residence on more than twenty occasions to sell drugs.

45Ms. Gagan testified that the Lacoste bag in question belongs to the accused. She said that he “carried that thing” with him all the time. She never saw anyone else make use of the accused’s black bag and went on to say that the “other guys had similar bags”.

46She recounted the discussion with the accused about one month prior to the events in question. At that time, he told her that he got robbed after a deal went bad and that he needed protection. She specifically told him not to bring a gun to her residence.

47Mr. Kahn said that the accused showed him the gun a few months before his arrest. He said that he took the pictures of him holding the gun in various poses as he thought it would be “cool” to do so. After the pictures were taken, he returned the gun to the accused and never saw it again.

48He also testified that the accused made frequent use of his shoulder bag. Support for this can be found in a photograph taken by Mr. Kahn on the Blackberry which was seized when he was arrested. This photograph shows the accused wearing a black shoulder bag and holding a Burberry shopping bag while shopping at Yorkdale Mall in Toronto.

49The evidence of Kahn and Gagan with respect to collateral issues such as the presence of other individuals and the chronology of events was largely consistent. In all important aspects, the evidence offered by Gagan and Kahn tended to confirm and support the evidence offered by the other.

50The accused testified on his own behalf. He acknowledged that the black Lacoste bag belonged to him. He denied knowledge and ownership of the gun. He denied the conversation with Gagan about the drug deal gone bad and the need for protection. He denied having a key to the residence.

51The accused did not testify in a forthright manner. He would often hesitate before answering. There are many examples of him changing his answer after he was pressed during the course of cross-examination.

52He originally testified that if he were to lose the drugs or the proceeds of sale, it would be of no consequence as the drugs were being “fronted” to him by a friend who would understand the situation. However, this is at odds with the evidence he later gave to the court that the friend was so concerned about getting the proceeds of sale that he drove from Toronto to Sudbury on the morning of October 6, 2011 to collect $900 rather than waiting for the accused to return to Toronto and pay him.

53The accused testified that his bag was empty when he left the residence shortly before noon as he recalled emptying it out of battery chargers and juice boxes. When found by police that evening, the bag contained a Burberry receipt bearing the accused’s name, a gift card and the gun. If the accused’s evidence is true, then whoever placed the gun in the bag after the accused left the residence must also have put the receipt and gift card in the bag. This begs the question of how such person would have been in possession of a Burberry retail receipt in the accused’s name.

54The accused attempted to minimize the quantity of drugs that he would bring to Sudbury to sell. He initially tried to leave the court with the impression that the amount involved was quite small. When pressed on this issue, he eventually acknowledged that he had brought up fourteen grams of cocaine to Sudbury to sell. When he was later questioned about the proceeds of the drug sales from the October 5th and 6th transactions, the amount totalled $1500. He was forced to acknowledge that he had, in fact, sold fifteen grams of cocaine on the trip in question. Based on his other answers that he was required to supply Gagan with cocaine in return for the use of her residence, it is clear that his final answer about the amount of cocaine that he brought to Sudbury was not true either.

55The accused was questioned about the name of the “acquaintance” at the residence. He initially denied knowing this man’s name. When pressed on the subject, he mumbled that he thought the guy’s name was “Ralph”. However, at other points in time during the course of his testimony, the accused acknowledged that it was necessary for him to trust those individuals who he brought to Sudbury for the purpose of selling drugs. It strained the accused’s credibility to believe that he did not know the name of this individual.

56The Crown’s theory that the accused needed the gun for protection was put to him on a number of occasions. Initially, he continually denied that he was concerned about his safety or the persons who were present at the residence. He eventually conceded that the drug trade often involves danger and that he did have safety concerns.

57Ms. Gagan testified that she had provided the accused with a key to her residence. The accused denied this. Ms. Gagan would have no obvious reason to fabricate this relatively innocuous piece of evidence. On this and the balance of the evidence offered by Ms. Gagan, I prefer her evidence to that of the accused.

58As part of a very able argument, counsel for the accused pointed out that Khan had pleaded guilty to possession of a prohibited weapon while being subject to a prohibition order. The date of the offence in that indictment is October 6, 2011. The offence involved possession of the same gun found in the accused’s bag. The submission continued that having pleaded guilty to such charge, it was clear that Khan was in possession of the gun on that day and not the accused. The difficulty with this argument lies in the fact that Khan testified that the only time he was in possession of the gun was when the photographs were taken a few months earlier. In view of the fact that I have accepted Khan’s evidence on this point, the error made with respect to the date of the offence at the time of Khan’s guilty plea does not operate so as to provide the accused with a defence to the charge before the court.

Conclusion

59I reject the evidence of the accused. I accept the evidence which has been put forward by the Crown which I find to be both credible and reliable. I am satisfied that the Crown has proven beyond a reasonable doubt that the accused did possess a loaded prohibited firearm on October 6, 2011. Accordingly, I find him guilty of that charge.