ONTARIO
SUPERIOR COURT OF JUSTICE
CITATION: R. v. Grant and Campbell, 2015 ONSC 1647
COURT FILE NO.: CR-27/14
DATE: 20150313
B E T W E E N:
HER MAJESTY THE QUEEN
- and -
JAVANTAI GRANT and
RAEVON CAMPBELL
Sharna Reid, for the Crown
David North, for Javantai Grant
Gary Grill, for Raevon Campbell
HEARD: January 19-22, 27-28, and
February 3-5, 2015
K.L. Campbell J.:
I
Overview
[1] The two accused, Javantai Grant and Raevon Campbell, are charged with a total of nine offences flowing from their alleged unlawful possession of two loaded handguns in the early morning hours of July 30, 2013. These prohibited firearms were discovered by the police, when they conducted a search of the Honda Civic owned by Raevon Campbell.
[2] One of the firearms, a loaded .40 calibre Smith & Wesson handgun, was located under the dash of the vehicle, above the area of the driver’s footwell. This was where Raevon Campbell had been seated as the driver of the Honda immediately prior to the search. The other firearm, a loaded .32 calibre Star pistol, was located under the floor mat in the rear seat, immediately behind the driver’s seat. This was where Javantai Grant had been seated immediately prior to the search.
[3] The search of the Honda, which led to the discovery of the two firearms, was conducted incident to the arrest of the four occupants of the vehicle. While the accused challenged the admissibility of these firearms on a pre-trial motion, I ruled that the evidence of the discovery of the firearms was admissible under s. 24(2) of the Charter of Rights. See R. v. Grant and Campbell, 2015 ONSC 1646.
[4] The other two passengers of the vehicle, Rejean Campbell (the twin brother of the accused Raevon Campbell) and Travis Tash, are no longer before the court on these charges. Rejean Campbell, who had been seated in the front passenger seat next to his brother immediately prior to the search, was originally charged with these same offences, but he was discharged at the conclusion of the preliminary inquiry. Mr. Tash, who had a criminal record for the commission of firearms offences, was also originally charged with these same offences, but prior to trial he was killed by a firearm, after a number of previously unsuccessful attempts on his life.
[5] The Crown contends that she has established all of the elements of all of the alleged offences beyond a reasonable doubt. The two accused argue that the Crown has failed to establish any of the alleged offences with the requisite degree of certainty.
[6] After having carefully considered all of the evidence in this case, as well as the submissions of the parties, I have concluded that the Crown has established the guilt of Mr. Grant with respect to the alleged offences in connection with Smith & Wesson firearm, but has otherwise failed to establish the alleged guilt of either of the two accused in connection with any of the other alleged offences. In other words, I am not satisfied beyond a reasonable doubt that Mr. Grant is guilty of the alleged offences in connection with the Star firearm, and I am not satisfied beyond a reasonable doubt that Mr. Campbell is guilty of the alleged offences in connection with either of the two firearms. My reasons for reaching these conclusions are as follows.
II
The Case Against Mr. Grant
Regarding the Smith & Wesson Firearm
A. Introduction
[7] Mr. North argued that the Crown has failed to establish the guilt of Mr. Grant in relation to the offences alleged in connection with the Smith & Wesson firearm beyond a reasonable doubt. I disagree. In my view the Crown has clearly established, beyond any reasonable doubt, that Mr. Grant was in unlawful possession of the Smith & Wesson firearm. Mr. Grant personally carried the firearm in a concealed fashion to the Honda, and then secreted the firearm under the dash of the vehicle where it was ultimately found by the police. Mr. Grant is, accordingly, guilty of all of the alleged offences flowing from his possession of that prohibited firearm. Indeed, while the case against Mr. Grant in relation to his possession of the Smith & Wesson handgun was circumstantial, it was also overwhelming. In my view, the guilt of Mr. Grant in relation to all of the alleged offences regarding the Smith & Wesson firearm is simply the only rational inference that can be drawn from the evidence in this case. See R. v. Griffin, 2009 SCC 28, [2009] 2 S.C.R. 42, at paras. 33-34.
B. The Credibility and Reliability of the Police Officers
[8] As I indicated in the Pre-Trial Charter Ruling in this case, I accept the viva voce testimony of the police officers who testified in this matter. They all testified honestly and credibly and, with the one exception noted, reliably as to what took place. Most importantly for present purposes, I accept: (1) the evidence of Sgt. Prentice as to his observations of Mr. Grant going from the La Rumba Nightclub to the parked red Honda, and back again, shortly after 1:42 a.m. on July 30, 2013, when he secreted the Smith & Wesson firearm under the dash of the Honda; and (2) the evidence of Sgt. French as to how and where he found the Smith & Wesson firearm under the dash of the Honda.
C. The Observations by Sgt. Prentice – Carrying and Secreting a Firearm
[9] At approximately 1:42 a.m. on July 30, 2013, Sgt. Prentice, who was conducting surveillance outside the La Rumba Nightclub, with the assistance of binoculars, noticed Mr. Grant in the lineup of approximately eight to ten people waiting to enter the nightclub. Mr. Grant was dressed brightly in a “turquoise hoodie” with a large white emblem on the front, and “bouncing around” and moving in and out of the lineup talking to his two friends, the Campbell brothers. This conduct by Mr. Grant seemed “significantly outside” what Sgt. Prentice would normally see in such circumstances and that was why Mr. Grant caught his attention.
[10] As one of the undercover police officers explained, in order to enter the club that night, each patron had to submit to a personal search in a vestibule area at the front of the club. There was a female security guard stationed at the main entrance of the club in this area, and she was accompanied by a large male. The female security guard would conduct a thorough physical pat-down search of each patron before they were allowed to enter. Patrons would have to empty the contents of their pockets into their hands, so that a visual inspection could be made of those contents, and the security guard would then run her hands over the clothing of the patrons, feeling their arms, outer body, and legs down to their shoes. All outside pockets were checked in this way. Once they were through this security check area, patrons would pay their cover charge and enter the club.
[11] Sgt. Prentice testified that when it was Mr. Grant’s turn to go inside this vestibule area of the nightclub where the security checks were being conducted, he disappeared from view for approximately five seconds. He then immediately came back outside again. Mr. Grant then walked in a northerly direction away from the club. As he walked away, Mr. Grant appeared to turn back, over his left shoulder, to engage in a brief verbal exchange with someone behind him – either the door security staff or his friends who were still in line.
[12] As Mr. Grant moved forward away from the club, Sgt. Prentice could see that he was holding the front of his hoodie with his open right hand in the general area of his waist in the centre of his body. Sgt. Prentice described this hold as “pronounced,” in that it was obvious to Sgt. Prentice that Mr. Grant’s hand was in that location and applying pressure. The left arm of Mr. Grant was swinging normally as he walked.
[13] Sgt. Prentice testified that as Mr. Grant proceeded in this northerly direction, he walked “quite quickly” and “with purpose.” Mr. Grant was not jogging, but he did initially take some “hop steps” to get moving quickly. Sgt. Prentice watched Mr. Grant as he made his way through the parking area, all the while with his right hand on his waist area. Even when Mr. Grant was walking with his back to the officer, Sgt. Prentice did not see his right arm drop down. Rather, Mr. Grant’s right arm remained bent, with his hand apparently still in the area of his waist.
[14] When Mr. Grant arrived at a parked red, four-door Honda Civic, he opened the driver’s door. Given the location of the Honda (and some other parked cars), Sgt. Prentice could only see the upper body of Mr. Grant. However, according to Sgt. Prentice, Mr. Grant did not get inside the Honda, but rather remained in the space between the open door and interior of the vehicle. Sgt. Prentice then watched Mr. Grant engage in a very pronounced movement with his back and shoulders. Mr. Grant stiffened and straightened up his body, and brought his shoulder blades closer together. His hands remained down in front of his body. He appeared to be taking something “substantial” out of the front of his pants. When he completed that movement, Mr. Grant crouched down and appeared to lean into the footwell area of the driver’s compartment of the Honda. In this position, Sgt. Prentice was only able to see the top of Mr. Grant’s head and his shoulder area, and could not see what he was doing with his hands. Mr. Grant remained in this crouched position for approximately 30 or 40 seconds. According to Sgt. Prentice, Mr. Grant appeared to be concealing something inside the vehicle.
[15] Sgt. Prentice testified that Mr. Grant then stood up and closed the driver’s door of the Honda. He then retraced his steps back to the La Rumba Nightclub. On this return trip, Mr. Grant periodically broke into a “light jog” and seemed to be in more of a rush to get back. He was definitely moving faster on his return trip than when he first walked out to the parked Honda. In returning to the club, Mr. Grant walked and jogged normally with both hands swinging at his sides. He was no longer holding his waistband with his right hand. Mr. Grant then rejoined the Campbell brothers, who were still in the line to get inside the club at this point.
[16] Sgt. Prentice testified that, in light his experience as a police officer, he believed that Mr. Grant had been “exhibiting the characteristics of an armed individual,” and that Mr. Grant “had secreted a firearm” in the Honda. Sgt. Prentice also explained why he did not believe that Mr. Grant had secreted drugs or a bottle of alcohol in the Honda.
D. The Discovery of the Smith & Wesson Firearm Under the Dash of the Honda
[17] Subsequently, as the nightclub began to close, four men walked to the same parked Honda and drove out of the parking lot. The police had earlier determined that they would allow the vehicle to leave the area but that, when it was safe to do so, they would have the Honda pulled over, and the occupants of the vehicle would be arrested for possession of a firearm. Two uniformed police officers in a marked police scout car had been standing by for this purpose. At approximately 3:51 a.m. Sgt. French, one of the leaders of the investigative project, advised the uniformed officers that the Honda was moving, and he arranged for them to follow the Honda. The uniformed officers met up with the red Honda as it proceeded southbound on Jane Street, and they proceeded to follow it in their scout car.
[18] As the red Honda travelled onto the ramp to northbound Black Creek Drive, leading to Highway 400, the uniformed officers activated the roof lights of the scout car and pulled the red Honda to a stop on the paved shoulder. The Honda was brought to a stop in this location at approximately 3:53 a.m. At this point, the uniformed officers determined that the owner of the Honda was Raevon Campbell, and he was operating the vehicle in the driver’s seat. His brother, Rejean Campbell, was seated in the front passenger seat. Javantai Grant was in the rear seat, immediately behind the driver’s seat. Travis Tash was in the rear seat, immediately behind the front passenger’s seat.
[19] After the occupants of the vehicle were identified, they were removed from the Honda by the police, detained at the roadside back by the scout car and given a pat-down search. No firearms or other weapons were found on any of the four occupants of the Honda.
[20] At approximately 4:01 a.m., Sgt. French walked to the driver’s door of the Honda, to the general area where Sgt. Prentice had seen Mr. Grant secret something, and began to search that area, with the assistance of his flashlight. According to Sgt. French, he began by feeling the driver’s seat, but did not feel or see anything there. He then looked underneath the seat, but saw nothing there. Sgt. French then looked under the dash board, where he observed the black handle of a pistol sticking out. The pistol appeared to be resting on a little shelf under the dash, parallel to the floor, immediately above the clutch pedal, and pointing towards the front of the car. Sgt. French then carefully pulled the firearm out from under the dash. This firearm was a .40 calibre Smith & Wesson handgun that contained a magazine with nine rounds of ammunition. Sgt. French testified that he found the firearm within a minute from when he started his search, and the video recording of this event confirms his evidence as to the brevity of the search.
E. Analysis and Conclusions
[21] Based upon this evidence, I am satisfied beyond any reasonable doubt that Mr. Grant was in unlawful possession of the .40 calibre Smith & Wesson firearm. More particularly, based upon this evidence, I find as a fact that, prior to passing through the security check in the vestibule at the main entrance of the La Rumba Nightclub, Mr. Grant secretly carried this very firearm, concealed in the waistband of his pants, from the nightclub entrance to the parked red Honda. Once he opened the driver’s door of the parked Honda, Mr. Grant removed the Smith & Wesson handgun from the waistband of his pants, crouched down, leaned into the driver’s footwell of the vehicle, and secreted the firearm under the dashboard above the clutch pedal. This was the activity in which Mr. Grant was engaged when he was under surveillance by Sgt. Prentice. The firearm remained in this hidden location under the dashboard of the Honda until it was discovered by Sgt. French when he searched that same area of the vehicle.
[22] According to s. 4(3)>(a) of the Criminal Code, R.S.C. 1985, chap. C-46, a person has anything in his “possession” when he has it “in his personal possession,” or when he “knowingly has it in any place, whether or not that place belongs to or is occupied by him, for the benefit of himself or of another person.” In my view, both aspects of this statutory definition of the term “possession” apply in the factual circumstances of the present case, and place Mr. Grant in possession of the hidden Smith & Wesson firearm. First, in secretly transporting the firearm from the nightclub entrance to the parked Honda in the waistband of his pants, Mr. Grant had “personal possession” of the firearm. Second, in secreting the firearm under the dash of the Honda, where it was ultimately found by Sgt. French, Mr. Grant knowingly had the firearm in a place, albeit a place not owned or occupied by him, for the benefit of himself or some other person. If Mr. Grant owned the Smith & Wesson firearm himself, and was storing it temporarily in the Honda while he was inside the nightclub, then he was knowingly storing the firearm in that location for his own benefit. If, however, the firearm was owned by another person (e.g. Travis Trash), and he was storing it in the Honda on his behalf, then he was knowingly storing it in that location for the benefit of another. Either way, Mr. Grant was in possession of that firearm while it was secreted in the Honda.
[23] While the term “knowingly” is absent from the definition of “personal possession,” the law is clear that, in order for a person to be properly found to be in “possession” of anything, their possession of the object must be done knowingly. In other words, the accused’s “possession” of any object cannot be established in the absence of proof beyond a reasonable doubt that the accused was aware that he or she had physical custody of the object while knowing its nature or character. In addition, this state of knowledge on the part of the accused must coincide with proof of an element of control by the accused over the object alleged to be in his or her possession, and an intention on the part of the accused to control the object. See R. v. Beaver, 1957 CanLII 14 (SCC), [1957] S.C.R. 531, at pp. 538, 541-542; R. v. Terrence, 1983 CanLII 51 (SCC), [1983] 1 S.C.R. 357, at pp. 362-364; R. v. Pham (2005), 2005 CanLII 44671 (ON CA), 77 O.R. (3d) 401 (C.A.), at para. 15, affirmed, 2006 SCC 26, [2006] 1 S.C.R. 940; R. v. Chalk, 2007 ONCA 815, 227 C.C.C. (3d) 141, at paras. 18-20; R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253, at paras. 16-17; R. v. Provost, 2011 ONCA 437, at para. 10; R. v. Bui, 2014 ONCA 614, 14 C.R. (7th) 149, at para. 34; R. v. MacDonald, 2014 SCC 3, [2014] 1 S.C.R. 37, at paras. 53-55; R. v. Tyrell, 2014 ONCA 617, 123 O.R. (3d) 617, at paras. 29-30, 36; R. v. Midwinter, 2015 ONCA 150, at paras. 12-14.
[24] Based upon all of the evidence in this case, I am satisfied beyond any reasonable doubt that when Mr. Grant carried the concealed Smith & Wesson firearm from the nightclub to the Honda and secreted it under the dash of the Honda above the driver’s foot well, he knew that he had a loaded firearm in his possession. He intentionally concealed the firearm in the waistband of his pants as he carried it to the Honda, and he intentionally exercised the necessary element of control over that firearm. Accordingly, he was clearly in unlawful possession of that firearm.
[25] Further, the Crown has similarly established the other elements of the alleged offences in relation to the Smith & Wesson firearm beyond a reasonable doubt. More particularly, the Crown has clearly established that Mr. Grant was not entitled to lawfully possess this loaded prohibited firearm or carry it in a concealed manner, as the evidence proves that Mr. Grant did not possess the necessary authorization, license, registration or permit for this firearm. This was not an issue between the parties, as defence counsel for Mr. Grant did not contend otherwise.
III
The Charges Against Mr. Grant
Regarding the Star Firearm
[26] The Crown argues that it has also established beyond a reasonable doubt that Mr. Grant was also in unlawful possession of the loaded .32 calibre Star pistol. I disagree. After considering all of the evidence, I have a reasonable doubt as to whether Mr. Grant was in unlawful possession of this firearm. Accordingly, Mr. Grant must be acquitted in relation to these alleged offences.
[27] The evidence establishes that when the marked police scout car began to follow the red Honda southbound on Jane Street, shortly after the Honda left the nightclub parking lot at approximately 3:51 a.m., the uniformed officers could see that the two passengers in the back seat of the red Honda (i.e. Mr. Grant and Mr. Tash) were “bobbing” up and down and moving back and forth across the back seat. The uniformed officers also noticed that neither of these two rear seat passengers were wearing their seatbelts. The evidence also establishes that after the uniformed officers stopped the Honda, just a few minutes later, on the northbound Black Creek Drive ramp leading to Highway 400, Sgt. French discovered the loaded .32 calibre Star pistol under the floor mat in the rear seat, immediately behind the driver’s seat, where Mr. Grant had been sitting. Those are, essentially, the main aspects of the evidence that the Crown relies upon in support of its position that Mr. Grant was also in unlawful possession of the loaded Star pistol.
[28] While this evidence certainly makes it possible – perhaps even probable – that Mr. Grant had noticed the marked police car that had begun following the Honda, and that he was moving around in the back seat in order to remove the Star pistol from somewhere on his person and hide it under the floor mat in front of him, I am simply not satisfied beyond a reasonable doubt that Mr. Grant was in unlawful possession of this firearm. I have reached this conclusion for a number of reasons.
[29] First, in my view it borders on speculation to infer, simply from the evidence of the uniformed police officers that Mr. Grant and Mr. Tash were “bobbing” up and down and moving back and forth across the back seat of the Honda, that Mr. Grant was hiding the firearm under the floor mat. After all, it could just as easily have been Mr. Tash that was hiding his firearm under the floor mat. Mr. Tash was observed engaging in the same physical movements in the back seat of the Honda as Mr. Grant. Moreover, if Mr. Tash had noticed that the Honda was being followed by the marked police car, and expected that the Honda was about to be stopped, it might make more sense for him to hide the Star pistol under the floor mat where Mr. Grant was seated. In the event that the Honda was stopped and searched, at least the police would not find the firearm under the floor mat where he was sitting. They would find it under the floor mat where Mr. Grant had been sitting. In other words, by hiding the firearm under the floor mat where Mr. Grant was sitting, Mr. Tash might be able to deflect police attention away from himself and towards Mr. Grant in relation to the Star pistol. Further, given the lack of any detailed evidence as to the nature of the relationship/friendship between Mr. Tash and Mr. Grant, it cannot safely be concluded that Mr. Grant would necessarily prevent Mr. Tash from hiding his firearm under the floor mat where Mr. Grant was sitting.
[30] Second, it is difficult to understand why, if Mr. Grant was in unlawful possession of two loaded firearms that night when he attended at the La Rumba Nightclub, he decided to only secret one of those firearms (i.e. the Smith & Wesson) in the Honda, but maintain the other loaded firearm (i.e. the Star pistol) somewhere on his person. Of course, when Mr. Grant was observed by Sgt. Prentice, crouched down and leaning into the driver’s footwell area of the Honda, he was not seen storing something in the back seat area of the Honda. Moreover, when Mr. Grant returned to the nightclub after hiding the Smith & Wesson firearm under the dash of the Honda, he gained access to the nightclub notwithstanding having to pass through the security check at the entrance. His successful entrance to the club suggests that, at least at that point in the evening, Mr. Grant was not in possession of the Star pistol.
[31] Third, in my view it would also be speculative to infer, based upon the evidence in this case, that Mr. Grant knew that Mr. Tash was, in fact, in possession of the Star firearm, consented to his possession of that firearm, and exercised some measure of control over that firearm, so as to place Mr. Grant in “constructive possession” of the Star pistol pursuant to s. 4(3)>(b) of the Criminal Code. It is equally plausible, based upon the evidence, that Mr. Tash was in personal possession of the firearm, and that Mr. Grant had no knowledge of his possession of the firearm, did not consent to his possession of the firearm, and had no measure of control over the firearm. In any event, even if Mr. Grant knew that Mr. Tash was in personal possession of the Star pistol, I am not satisfied that the Crown has established that Mr. Grant: (1) consented to his possession of that firearm; or (2) exercised any measure of control over that firearm in the personal possession of Mr. Tash. Accordingly, Mr. Grant cannot properly be found guilty of the alleged offences regarding the Star firearm based upon his alleged “constructive possession” of that firearm.
[32] Fourth, and in any event, based upon the presumption of innocence and the heavy burden of proof upon the Crown, I am just not satisfied, based upon all of the evidence (and the lack of evidence) in this case, that Mr. Grant was in unlawful possession of the loaded .32 calibre Star pistol. See R. v. Bui, at paras. 33-35; R. v. Dubois, 1985 CanLII 10 (SCC), [1985] 2 S.C.R. 350, at p. 357; R. v. Pearson, 1992 CanLII 52 (SCC), [1992] 3 S.C.R. 665, at pp. 682-683, 687; R. v. Schuldt, 1985 CanLII 20 (SCC), [1985] 2 S.C.R. 592, at pp. 610-611; R. v. J.M.H., 2011 SCC 45, [2011] 3 S.C.R. 197, at paras. 25-27; R. v. David, 2014 ONSC 5049, at paras. 16-18. Accordingly, Mr. Grant will be found not guilty of all of the alleged offences charged in relation to that particular firearm.
IV
The Charges Against Mr. Campbell
The Police Discover Two Firearms in His Vehicle
A. Introduction
[33] The Crown contends that the evidence establishes the alleged guilt of Raevon Campbell regarding the charges against him in relation to both of the firearms found in his vehicle. I disagree. In my view, the evidence falls far short of establishing that Mr. Campbell was in unlawful possession of either the Smith & Wesson handgun or the Star pistol.
[34] There is no question that Mr. Campbell owned the Honda, was driving this vehicle when it was stopped by the police, and that the two firearms were discovered inside. Further, the police surveillance evidence also establishes that, after Mr. Grant secreted the firearm inside the Honda, but before the Honda left the parking lot around closing time, Raevon Campbell went out to the Honda and sat in the driver’s seat for a few minutes. This took place at approximately 3:08 a.m. The two firearms were also found by the police in close proximity to Raevon Campbell, in that: (1) the Smith & Wesson firearm was located under the dash board above the driver’s footwell; and (2) the Star pistol was located under the floor mat in the back seat area, immediately behind the driver’s seat.
[35] Nevertheless, the evidence in this case, viewed in its entirety, simply does not satisfy me beyond a reasonable doubt that Mr. Campbell knew that these two firearms were inside his vehicle and that he intentionally exercised control over those firearms. Moreover, the exculpatory testimony of Mr. Campbell, expressly denying any knowledge of the presence of the firearms in his Honda, itself leaves me with a reasonable doubt as to his alleged guilt.
B. The Testimony of Raevon Campbell
[36] At the time of the alleged offences, Raevon Campbell was 20 years old and working two jobs. He was living with his mother, his twin brother and his sister. He had just purchased the red Honda Civic about a month earlier. It was his first car, and he kept the interior immaculate. He is now 22 years of age. He has no criminal record. He testified that he had no knowledge of the two firearms that were found in his vehicle by the police in the early morning hours of July 30, 2013. The firearms had not previously been in his vehicle, nor did Mr. Campbell know how they came to be in his vehicle. According to the testimony of Raevon Campbell, neither of the two firearms belonged to him, and he was never knowingly in possession of either of those handguns.
[37] Raevon Campbell explained how he eventually went to the La Rumba Nightclub that night in an effort to make his brother feel better. Rejean Campbell had lost his job earlier in the day, and he had been drinking and smoking marihuana since receiving the bad news. Before going to the nightclub, however, they made two stops. First, they visited their step-father at his house. While the Campbell brothers were socializing with their step-father, they each borrowed some cigarettes from his girlfriend. When they left their step-father’s residence, at around 10:00 p.m., they made their second stop, at the Firgrove Community Center, to visit Rejean’s girlfriend, who was attending a memorial service being held at that location. While they were there, Raevon Campbell spoke with an old high school friend, Travis Tash. It was only during their visit to the Firgrove Community Center that the Campbell brothers decided to go to the La Rumba Nightclub. Mr. Tash also expressed his interest in attending the nightclub.
[38] Raevon Campbell testified that, after leaving the memorial service, he and his brother went to the La Rumba Nightclub. The accused parked his red Honda in the parking lot. They paid their admission cover charge and went inside, but as there was nothing happening inside the club at that time of the night, they both went back outside to hang around. Raevon Campbell smoked one of his cigarettes, while his brother smoked some marihuana.
[39] According to Raevon Campbell, approximately 20 minutes later, he saw Mr. Tash outside the nightclub. He was socializing with some of the others who were also outside the club. Mr. Grant arrived another 10-15 minutes later. Mr. Campbell knew Mr. Grant through Mr. Tash, and greeted him upon his arrival at the club. As they waited around outside the club, Raevon Campbell saw Mr. Tash talking to someone in a silver Chrysler motor vehicle, and when Mr. Tash came back to them, he indicated that the individual inside the Chrysler had “blessed [them] with a bottle” of Cognac. People then started drinking from this bottle. Raevon Campbell took a few sips from the bottle when it was his turn.
[40] Raevon Campbell testified that, at one point while they were outside, his brother asked him for the keys to the Honda so that he could put the bottle in the car. In response, Raevon Campbell gave his brother the keys to the Honda, and he assumed that he tossed the bottle in his Honda. Later, Rejean Campbell returned to the lineup with the others. Later, when the police stopped the Honda and searched its contents, a bottle of Cognac was indeed found inside the vehicle.
[41] Subsequently, according to Raevon Campbell, as the four men (i.e. the two Campbell brothers and Mr. Tash and Mr. Grant) were in the lineup waiting to go back inside the nightclub, his brother Rejean told him that Mr. Tash wanted the car keys to put a bottle in his Honda, and he (Rejean) had given him the Honda keys so that he could do that. Raevon Campbell had not seen Mr. Tash with another bottle, but he knew that Mr. Tash knew many people and he assumed that there must have been a second bottle of alcohol. Raevon Campbell did not make an issue out of it, but admitted to being confused when he saw Mr. Grant walking in the direction of his parked Honda. Mr. Grant did not appear to have a bottle. Raevon Campbell assumed that his brother had actually given the car keys to Mr. Grant. However, when he asked his brother about his car keys, Rejean told him that he had given the keys to Mr. Tash, but that it was “all good.” Raevon Campbell did not see Mr. Grant go directly to the Honda, as it was parked around a corner and was not visible from his vantage point, but he did watch Mr. Grant walk in that direction and go around the corner where the Honda was parked.
[42] Raevon Campbell explained that, later, when Mr. Grant returned to the lineup, but before they all went inside the nightclub, Mr. Grant returned the Honda keys to his brother, who in turn passed the Honda keys back to him.
[43] According to Raevon Campbell, Mr. Grant’s trip back to his parked Honda only took a minute or two, and he never suspected that Mr. Grant (or anyone else) had actually put a firearm in his vehicle.
[44] Raevon Campbell testified that, as Sgt. Prentice described, he exited the nightclub again at approximately at 3:08 a.m., and briefly went back to his car. Mr. Campbell explained that he had decided that it was time to leave. It was late and he had to get up for work early the next morning. Raevon Campbell told his brother that he was ready to go home before he went outside, but he was clear that he would not have left the nightclub that night without his brother. He explained that he went back to his parked Honda to get another cigarette. He had left the single cigarettes that he had received from his step-father’s girlfriend in a compartment in the console of the Honda between the two front seats. According to Mr. Campbell, he unlocked his car, got into the driver’s seat of his car, and closed the door. He then retrieved a cigarette from the center console compartment, dropped it briefly on the passenger side of the vehicle, looked for it on the floor, and then found it notwithstanding the darkness in the vehicle. Mr. Campbell testified that he then made a call on his cell phone, and spoke briefly to a young female friend from work. Mr. Campbell then exited the Honda, walked back to the entrance of the nightclub, where he smoked his cigarette and placed some further cell phone calls to some other young women of his acquaintance.
[45] Raevon Campbell testified that he remained outside the nightclub for approximately 30 minutes. When Rejean finally came out of the nightclub, together with Mr. Tash, he told his brother that Mr. Tash wanted a ride home with them. Subsequently, Mr. Tash told Raevon Campbell that Mr. Grant was also coming with them. This was how the four young men ended up in the Honda at the end of the evening. According to Raevon Campbell, Mr. Tash and Mr. Grant were both going to Mr. Tash’s residence. Raevon Campbell knew the general area where Mr. Tash lived, which was approximately 25-30 minutes away, but he was going to be getting the specific directions as to how to get to that location from his brother. Raevon Campbell just accepted that he would be driving these people home.
[46] Raevon Campbell testified that, at that point in time, as the four of them left the nightclub parking lot in the Honda, he did not think, or even suspect, that there may have been any firearms in the car, or that any of the individuals in the Honda had personal possession of any firearms. At no point did he ever look under the dashboard area of the vehicle, nor did he ever have any indication that there was a firearm secreted in that location.
[47] According to the testimony of Raevon Campbell, as he was driving his Honda southbound on Jane Street, he noticed the uniformed police officers in the marked scout car following him. He noticed that they were driving quite aggressively in following him. At that moment he did not say anything to any of the others in the Honda, but when he pulled the Honda onto the ramp to the highway he knew that the police were going to pull him over, and he told the others that they were about to be stopped by the police. Mr. Campbell testified that, at that point, he could see, in his rear view mirror, Mr. Grant and Mr. Tash moving around in the back seat area. He thought that they may have been trying to hide their marihuana, or may just have been nervous. He also noticed a bottle of liquor on the passenger side of the vehicle. But Mr. Campbell did not think, or even suspect, that either of them had any firearms in their possession. No one ever mentioned anything about any firearms being in the car. Raevon Campbell denied ever owning or possessing any firearm.
C. Analysis of the Evidence of Raevon Campbell – Reasonable Doubt
[48] As I have already indicated, the testimony of Raevon Campbell, viewed against the background of all of the rest of the evidence in this case, leaves me with at least a reasonable doubt as to whether he was in unlawful possession of the two firearms the police found in his vehicle. More particularly, his exculpatory testimony leaves me with at least a reasonable doubt: (1) as to whether he knew that those firearms were inside his Honda; and (2) as to whether he intentionally exercised any control over those two firearms. There are a number of reasons that have individually and cumulatively led me to this conclusion.
[49] First, there is nothing incredible or unreliable about the substance of the testimony provided by Raevon Campbell. Indeed, his testimony provides a reasonable explanation as to how the two firearms could have come to be in his Honda at the time the police discovered them without him knowing of their presence in his vehicle, and without him intentionally exercising any control over either of those firearms. More particularly, based on his testimony, it would appear: (1) by virtue of the ruse of temporarily storing a bottle of alcohol in the Honda, Mr. Grant was able to secret the Smith & Wesson firearm under the dashboard of the vehicle; and (2) either Mr. Grant or Mr. Tash tried to hide their Star pistol under a floor mat in the back seat area of the Honda when it appeared likely that the police were about to stop the vehicle.
[50] Second, there was nothing incredible or unreliable about Raevon Campbell personally as a witness. He is a young man with no criminal record. At the time of his arrest on these charges he was working industriously at two jobs, was living at home with his mother and his siblings, and had recently purchased a new car over which he had demonstrated a pride of ownership. Moreover, I watched him carefully as he gave his evidence, and there was nothing about his demeanour in the witness box, or the manner in which he responded to questions from counsel, in examination-in-chief or cross-examination, that led me to seriously question the substance of his evidence.
[51] Third, while there are some inconsistencies between the evidence of Raevon Campbell and that of his brother, in my view those inconsistencies are not the result of any frailty in the testimony of Raevon Campbell, but rather are due to frailties in the testimony of Rejean Campbell. In this regard it is important to recall that, on the night of July 29-30, 2013, Rejean Campbell was hardly someone apt to be an accurate and reliable witness. He was distraught over having lost his job earlier that day, and he had been consuming alcohol and marihuana throughout the afternoon and evening. In all of the circumstances, I have no hesitation concluding that, where the testimony of Raevon Campbell differs from that of his brother, I prefer the testimony of Raevon Campbell.
[52] Fourth, notwithstanding the inconsistencies in the testimony of the Campbell brothers, it is also fair to observe that the testimony of Rejean Campbell was largely supportive of the testimony of his brother as to the sequence of events on the evening of July 29-30, 2013. Indeed, the testimony of Rejean Campbell confirmed some important aspects of the testimony of Raevon Campbell. At the same time, their testimony was not such as to cause me to suspect or believe that they had concocted their exculpatory evidence together.
[53] Of course, as the Supreme Court of Canada judgment in R. v. W.(D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742, at pp. 757-758, makes clear, the application of the presumption of innocence and the heavy burden of proof upon the Crown in the context of a case where the accused has provided exculpatory testimony, means that the accused must be acquitted in any case where his or her evidence is either accepted by the trier or fact, or where it raises a reasonable doubt as to his or her alleged guilt. As I have indicated, in the present case, the exculpatory testimony of Raevon Campbell causes me to have at least a reasonable doubt as to his alleged guilt. Accordingly, he must be acquitted on all of the charges against him.
D. The Crown’s Case Did Not Establish Guilt In Any Event
[54] While it is perhaps not necessary to elaborate any further as to why Raevon Campbell must be acquitted, I note that, even if his exculpatory testimony did not itself raise a reasonable doubt in my mind as to his alleged guilt, I would nevertheless have reached the same conclusion regarding his potential liability on the basis that the evidence that comprised the Crown’s case against him did not satisfy me beyond a reasonable doubt that Raevon Campbell was guilty of any of the alleged offences.
V
Verdicts
[55] In the result, Javantai Grant is found guilty of all of the charges against him in relation to the Smith & Wesson firearm. More particularly, Mr. Grant is found guilty of the three possession-based criminal offences alleged in counts one, three, five of the indictment, contrary to ss. 95(1), 92(1) and 91(1) of the Criminal Code respectively. Mr. Grant is also found guilty of the offence alleged in count seven of the indictment, namely, being an occupant of a motor vehicle in which he knew there was a firearm, contrary to s. 94(1) of the Criminal Code. Finally, Mr. Grant is also found guilty of the offence alleged in count nine of the indictment, namely, carrying a concealed weapon without being the holder of a permit, contrary to s. 90(1) of the Criminal Code. These are all of the offences alleged against Mr. Grant in connection with the Smith & Wesson firearm.
[56] With respect to all of the alleged offences in connection with the Star firearm, however, which are outlined in counts two, four, six and eight of the indictment, Mr. Grant is found not guilty.
[57] With respect to Raevon Campbell, in the result, he is found not guilty of all of the charges against him. More specifically, he is acquitted on counts one through eight of the indictment.
Kenneth L. Campbell J.
Released: March 13, 2015
CITATION: R. v. Grant and Campbell, 2015 ONSC 1647
COURT FILE NO.: CR-12-40000186
DATE: 20150313
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and -
JAVANTAI GRANT and
RAEVON CAMPBELL
REASONS FOR JUDGMENT
K.L. Campbell J.
Released: March 13, 2015