2011 ONSC 1218, 2011 ONSC 1218

CITATION : Her Majesty the Queen v. Bell, 2011 ONSC 1218 COURT FILE NO.: 09-R2122 ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: ) ) HER MAJESTY THE QUEEN ) ) ) Riad Tallim, for the Plaintiff ) Plaintiff ) ) - and - ) ) ) GREG ANTHONY BELL, RICARDO TRISHTON BELL, and MOUSTAFA AHMAD JEBARA ) ) )))))) Joseph Addelman, for the Defendant, Greg Anthony Bell Richard Addelman, for the Defendant, Ricardo Trishton Bell Alan Brass, for the Defendant, Moustafa Ahmad Jebara ) Defendants ) ) ) )) HEARD: December 13, 14, 15, 17, 22 and 23, 2010 Madam Justice J.A.

Blishen Introduction [ 1 ] Brothers Ricardo and Greg Bell are charged with committing a robbery on Abdul Wasai Mohammadi while using a prohibited handgun contrary to s. 44(1) (

a) of the Criminal Code, R.S.C., 1985, c. C-46. The third accused, Moustafa Jebara is charged with being an accessory to the robbery contrary to s. 23(1) of the Criminal Code . All three accused are further charged with numerous firearm offences under the Criminal Code as follows: 1. Storing a prohibited handgun in a careless manner contrary to s. 86(3); 2. Possessing a prohibited handgun for a purpose dangerous to the public peace, contrary s. 86(2); 3. Possessing a prohibited handgun without being a license holder contrary to s. 91(3);

4. Possessing a gun while knowingly not being the license holder contrary to s. 92(3); 5. Occupying a motor vehicle knowing that a prohibited handgun was in the vehicle contrary to s. 94(2); 6. Possessing a loaded, restricted weapon, a handgun, without being the holder of a license contrary to s. 95(2); and, 7.

Possessing a restricted weapon knowing it was obtained by the commission of an offence contrary to s. 96(2). [ 2 ] Greg Bell is further charged with pointing a prohibited handgun at Abdul Mohammadi contrary to s. 87(2) and carrying a concealed weapon contrary to s. 90(2). [ 3 ] Ricardo Bell is further charged with one count of breach of probation contrary to s. 733.1(1), three counts of breaching a recognizance contrary to s. 145(3) and two counts of possessing a prohibited handgun and ammunition while prohibited under s. 109 of the Criminal Code , contrary to s. 117.1(3) . [ 4 ] On April 1, 2009 at 12:10 a.m., a 911 call was received from Abdul Mohammadi, indicating that he was at the Playmate Strip Club where there was a big fight.

He further indicated that he needed help as four people were holding a gun on him. Within five minutes, the police were on the scene, near the Playmate Strip Club on the corner of Montreal Road and Emond Street in the City of Ottawa. Mr. Mohammadi stated that he had just been robbed and pointed to a Nissan Pathfinder, facing west on Montreal Road just around the corner from the strip club, stating that the occupants of the car just pulled a gun on him. [ 5 ] According to the testimony of the police officers, Ricardo Bell was removed from the front passenger seat of the stationary Pathfinder and was arrested.

At approximately the same time, Moustafa Jebara was removed from the driver’s seat and arrested. Approximately 30 seconds to one minute later, Greg Bell exited from the rear passenger side of the motor vehicle and was arrested. [ 6 ] Upon searching the Nissan Pathfinder, the police found a small, loaded semi-automatic handgun, concealed underneath a tray deep in the centre console of the motor vehicle.

It was agreed that the handgun was in firing condition, functioning correctly, capable of discharging projectiles that can cause death or serious bodily harm and is a prohibited firearm as defined in s. 84 of the Criminal Code . It was further agreed that the ammunition in the magazine of the firearm was in proper working order. [ 7 ] The Crown called the police officers involved in arresting and searching the three accused along with the officer who took a statement from the complainant.

The principle Crown witness was the complainant, Abdul Mohammadi. [ 8 ] The three accused did not testify and no defence evidence was presented at trial. [ 9 ] The major issues at trial were as follows: 1. Did the Bell brothers steal money from Mr. Mohammadi using threats of violence, or while armed with a prohibited handgun? 2. Was a prohibited handgun used while committing the robbery? 3. Did Mr. Jebara receive, comfort or assist Ricardo and/or Greg Bell for the purpose of enabling them to escape knowing that they had been parties to an offence? 4.

Were any or all of the accused knowingly in possession of the prohibited handgun? Did they know of the handgun’s presence and have a measure of control over the weapon, either directly or as a party to possession by another of the accused? 5. Did they know the handgun was loaded? 6. Did Greg Bell carry a concealed, prohibited handgun? 7. Did Greg Bell point the handgun at Mr. Mohammadi? [ 10 ] Ricardo Bell has acknowledged that he was subject to a recognizance of bail dated August 7, 2007 and that he breached that recognizance by being away from his residence. Therefore, Mr.

Ricardo Bell is guilty of breach of recognizance contrary to s. 145(3) of the Criminal Code , as outlined in count 14 on the indictment. [ 11 ] Other than the acknowledged breach of recognizance, has the Crown proven beyond a reasonable doubt all the elements of the other offences charged? [ 12 ] A key issue in this case is the credibility of the principle Crown witness, the complainant, Abdul Mohammadi?

Positions of the Parties The Crown [ 13 ] The Crown’s theory is that Greg Bell, at all material times, was in possession of a prohibited handgun and, together with his brother Ricardo Bell, used it to threaten and take money from Abdul Mohammadi. Ricardo Bell formulated a plan to lure Mr. Mohammadi, who was a needy person and an easy victim, to the Playmate with the intention of robbing him. The plan was that Moustafa Jebara would drive the Pathfinder to the Playmate and wait for the Bell brothers in order to facilitate an escape. While in Mr. Mohammadi’s Yukon, Greg Bell pointed the handgun at Mr.

Mohammadi through the back of the driver’s seat and threatened to blow

his head off. When Sgt. Miller arrived on the scene, Greg Bell concealed the small handgun in his waistband and together with his brother Ricardo Bell, fled towards the Pathfinder, given their fear of being apprehended with the handgun. At some time either before or after the Bells confronted Mr. Mohammadi in Eddy’s Diner, Greg Bell placed the handgun in the console of the Pathfinder with the knowledge of the other two accused.

The Defence [ 14 ] Defence counsel for Ricardo Bell and Greg Bell argue that the credibility and reliability of Abdul Mohammadi’s testimony is crucial for the Crown to prove beyond a reasonable doubt the robbery and firearms offences. It is argued that the testimony of Mr. Mohammadi was entirely unreliable and he was not a credible witness. [ 15 ] Given that the only evidence as to the existence of a gun prior to it being located in the console of the Pathfinder, was that of Mr. Mohammadi who testified that he never saw a gun, the evidence is circumstantial.

Further, the evidence of knowledge of the three accused as to the fact that there was a gun in the console of the Pathfinder is again circumstantial. The existence of the gun during the confrontation between Mr. Mohammadi and the Bell brothers must be the only inference or rational conclusion to be drawn on the basis of the evidence. Similarly, the essential element of knowledge must be the only reasonable explanation to be inferred from the circumstantial evidence.

It is argued by the defence that there are other reasonable explanations and inferences to be drawn, in particular given that the evidence of the principle Crown witness is not credible. Evidence Police Testimony [ 16 ] Just after midnight on April 1, 2009, Sgt. Kirk Miller, who was on general patrol, decided to drop into the Playmate Strip Club on Emond Street near the corner of Montreal Road in Ottawa. The Playmate was known to him as a “hotspot” for criminal activity. Sgt. Miller parked his marked cruiser facing north on the east side of Emond Street right across from the entrance to the Playmate Club.

He noted nothing unusual happening on the street or in the area. [ 17 ] Sgt. Miller went across the street, into the Playmate Club, spoke briefly to the bouncer and walked through the bar, which he noted was not particularly busy that evening. As Sgt. Miller began to receive a dispatch regarding a 911 call near the Playmate, the bouncer indicated something was going on upstairs on the street. [ 18 ] Sgt. Miller ran up the stairs and out of the club.

He observed Abdul Mohammadi standing on Emond Street outside the Club, yelling “the guys in the car just pulled a gun on me” while pointing at a Nissan Pathfinder which was on the north side of Montreal Road around the corner from Emond Street facing west, approximately 15 to 20 feet away from Sgt. Miller. The vehicle was not in motion. Mr. Mohammadi appeared to be very excited and disturbed and was yelling at the officer to do something. [ 19 ] A 911 call was received from Mr. Mohammadi at 12:10 a.m. on April 1, 2009. The calls back and forth between the 911 dispatcher and Mr.

Mohammadi lasted until approximately 12:15 a.m. A compact disc of the 911 calls was filed as exhibit 6. [ 20 ] Mr. Mohammadi originally called 911 at 12:10 a.m. and hung up. When the 911 operator called him back, he indicated that he was at the Playmate and stated “there’s a big fight” and “I need help.” The 911 operator indicated that she was sending him help and he hung up. The 911 operator then called back and asked Mr. Mohammadi if there were any weapons. He indicated yes but did not know what kind. He continued to repeat, “Please, please, please.” When asked how many people were involved, he indicated four.

When asked again, what kind of weapons were involved, he stated, “they’re holding a gun underneath the chair.” He further stated that he did not know these individuals and that he was now outside. On further questioning, Mr. Mohammadi indicated that “there were a couple of black guys” not four individuals. He continued to plead for help and stated he could not talk because they “put gun on me.” He then hung up. On the final call from the 911 operator, Mr. Mohammadi indicated that he was okay and that police had arrived. [ 21 ] After hearing from the dispatcher that a gun was involved and speaking briefly with Mr.

Mohammadi, Sgt. Miller proceeded to the front passenger side of the Nissan Pathfinder, noting that all the doors on that side were closed. As he approached the vehicle, he noted Sgt. Beebakhee approaching in a marked cruiser east on Montreal Road. Sgt. Beebakhee parked his vehicle and angled it so that the Nissan Pathfinder would be unable to leave. [ 22 ] Sgt. Miller opened the front passenger door of the Pathfinder and saw Ricardo Bell sitting in the front passenger seat. Sgt. Miller was focused only on Ricardo Bell and his hands and did not notice anyone else.

He stated that, given the report of a gun, he had “tunnel vision.” Sgt. Miller told Mr. Bell to get out of the vehicle, grabbed him on his chest and pulled him out. Ricardo Bell was not wearing a seatbelt and did not resist. Sgt. Miller pushed Ricardo Bell up against the glass of Eddy’s Diner, located on the corner of Montreal Road and Emond Street, put his hands behind his back and turned him over to Cst. Flores. Sgt. Miller estimated that, from approaching the vehicle, to turning Ricardo Bell over to Cst. Flores, took approximately 45 seconds to one minute. [ 23 ] Sgt.

Miller then observed two other individuals being arrested; one by Sgt. Beebakhee by the front of the vehicle and a third by another officer. Sgt. Miller satisfied himself that the scene was secure, then checked to see if the Playmate, Eddy’s Diner or the massage parlour nearby had videos that would be of assistance. They did not. [ 24 ] Sgt. Beebakhee confirmed that he heard the dispatch at approximately 12:14 a.m. regarding a disturbance or fight at the Playmate Club. He drove his cruiser on to Emond Street and observed Sgt. Miller talking to Mr. Mohammadi in front of the Playmate. As Sgt.

Beebakhee was exiting his vehicle, he noted Mr. Mohammadi was agitated, upset and speaking in an animated fashion and using his hands. He heard Mr. Mohammadi indicate something about a gun and about the guys getting away, while he pointed to Montreal Road. [ 25 ] The officer got back in his vehicle and reversed out onto Montreal Road and blocked a Nissan Pathfinder and a Nissan Altima which were close to the corner of Montreal Road and Emond Street. In checking the Nissan Altima, he noted an older Asian female in that vehicle. In the Pathfinder, he noted two young male occupants.

From overhearing the complainant, to parking his vehicle took Sgt.

Beebakhee no more than 20 seconds. [ 26 ] Given that there was mention of a gun, Sgt. Beebakhee focused his attention on the individual in the driver’s seat of the vehicle. All doors on the driver’s side were closed as was the hatch. He was not aware of anyone else in the back of the vehicle. Sgt. Beebakhee shouted to the driver to shut off the vehicle and “let me see your hands.” He then ordered the driver to get out and Moustafa Jebara exited the vehicle. Mr. Jebara was cooperative and did not resist. It was Sgt. Beebakhee’s recollection that he removed Mr. Jebara from the vehicle before Sgt.

Miller removed Ricardo Bell. Sgt. Beebakhee arrested Mr. Jebara and placed him in the back of the police cruiser and then returned to the Pathfinder to search for a firearm. [ 27 ] When he got back to the Pathfinder, Cst. Pulfer was there searching the area of the front passenger seat. Sgt. Beebakhee began to search the front driver’s seat area and found nothing. Cst. Pulfer opened the centre console between the two front seats and pulled out a gun which looked like a toy gun to Sgt. Beebakhee. Cst. Pulfer took control of the gun. Sgt.

Beebakhee noted that the handgun was very small and could easily be concealed in someone’s hands, depending on the size of the hand. No photographs were taken of the scene nor of the inside of the Pathfinder. Sgt. Beebakhee could not recall whether the centre console opened from the front or from the side. No fingerprints or identifiable marks were found on any surfaces of the handgun nor on the ammunition. The gun was loaded when found. [ 28 ] Upon returning to his cruiser, Sgt. Beebakhee indicated to Mr. Jebara that a gun had been found in the vehicle and Mr.

Jebara indicated something to the effect of, it was not his and he just went there to pick up some friends. Upon searching Mr. Jebara, $640 was found and seized. [ 29 ] Sgt. Pulfer, who on April 1, 2009 was Cst. Pulfer, testified that he received a dispatch regarding a male outside the Playmate Strip Club with a firearm and immediately proceeded west on Montreal Road to the Club. Upon approaching the area, he observed the green Nissan Pathfinder on Montreal Road facing west just off Emond Street. Sgt. Beebakhee’s cruiser was blocking the vehicle and the driver and passenger front doors were open. Sgt.

Pulfer observed Sgt. Miller handcuffing Ricardo Bell on the north sidewalk of Montreal Road and Sgt. Beebakhee handcuffing Mr. Jebara. [ 30 ] Sgt. Pulfer parked his marked cruiser directly behind the Pathfinder. He noted that both rear doors and the hatch of the vehicle were closed. Sgt. Pulfer exited his vehicle and walked past the Pathfinder to speak with Sgt. Miller on the sidewalk. As he walked by, the rear passenger door of the Pathfinder opened and Mr. Greg Bell exited the vehicle. At that point, Sgt. Pulfer heard Mr.

Mohammadi, who was standing about five feet in front of him outside Eddy’s Diner, indicate “that guy” or “three guys” had pointed or pulled a gun on him. Sgt. Pulfer grabbed Greg Bell, turned him around and handcuffed him, before turning him over to Cst. Downie. [ 31 ] Sgt. Pulfer then began to search the front passenger seat area of the Pathfinder looking for a gun. As was stated by Sgt. Beebakhee, Sgt. Pulfer opened the console between the seats. He could not recall if it opened from the front or the side.

Inside the console was a thin, plastic tray, four to five inches deep, holding a neat stack of CDs and sunglasses. He lifted out the tray and in the 12 to 18 inch deep pocket of the console, he found a cell phone charger, beside which was a small, silver handgun. Although Sgt. Beebakhee indicated the barrel of the gun was pointing forward, Sgt. Pulfer indicated the barrel was pointing towards the back seat of the vehicle with the butt of the gun facing the driver’s side of the vehicle. The gun was loaded and Sgt. Pulfer popped four bullets out of the magazine.

He then “racked” the gun to see if there was a bullet in the chamber, which there was not. He took charge of the handgun and took it back to the station. Sgt. Pulfer testified that from arriving on the scene and observing Sgt. Miller and Sgt. Beebakhee arresting Ricardo Bell and Moustafa Jebara, and observing Greg Bell exit the Pathfinder approximately 30 seconds later, it then took him a further 60 to 90 seconds to find the handgun. [ 32 ] Cst. Cameron Downie testified that he took over custody of Greg Bell from Sgt.

Pulfer and upon searching him found a MP3 player, a cell phone and $420 in cash, for which he gave an explanation. Cst. Downie noted that Greg Bell was cooperative. [ 33 ] Cst. David Weir arrived on scene at approximately 12:20 a.m. and was asked to take a statement of the complainant, Abdul Mohammadi, who was standing outside Eddy’s Diner on the sidewalk. Cst. Weir took Mr. Mohammadi back to his police vehicle and asked him to fill out a statement. Mr. Mohammadi indicated that he was not strong in reading and writing English and, therefore, Mr. Mohammadi dictated his statement to Cst. Weir.

There was no indication that Mr. Mohammadi had consumed drugs or alcohol. Cst. Weir noted that Mr. Mohammadi was excited, seemed to have a lot to say and was speaking very quickly. He was coherent and rational and reviewed the statement with Cst. Weir after it had been taken and indicated that there were no changes or additions. Although it was not in the statement, Cst. Weir’s investigative action report noted Mr. Mohammadi stated that two black brothers had just put a gun to his head. Also in Cst. Weir’s investigative action report were statements that Mr.

Mohammadi saw the Pathfinder parked outside with black guys in it before going to his own vehicle; that the brothers then tried to make Mr.

Mohammadi hide the gun in his vehicle, a Yukon; and, that he saw what he thought was a gun in one of the brother’s hands but was unable to describe it any further. [ 34 ] In addition to the testimony of the police officers, the Crown filed an Agreed Statement of Facts which included: 1. as previously indicated, the nature of the firearm and ammunition, which were in working order, 2. the fact that no fingerprints or identifiable marks were found on any surfaces of the firearm or ammunition; 3. that none of the accused were license holders nor did they have registration certificates to possess a firearm; 4. that the registered owner of the Nissan Pathfinder was Mr.

Jebara’s mother. Moustafa Jebara was not living with his mother and father on the evening in question, but his mother loaned her son the vehicle that night. No one else had the vehicle that night. Only she and her husband drive the vehicle and neither of them owns a gun. Mrs. Jebara had no knowledge of the gun found in the vehicle on April 1, 2009 and there was no gun in the vehicle prior to her son borrowing it; 5.

Ricardo Bell was prohibited from possessing any firearm, prohibited weapon or ammunition pursuant to s. 109 of the Criminal Code and he was further subject to a recognizance of bail, dated August 7, 2007 and a probation order dated January 28, 2008; 6. On April 1, 2009, after providing a verbal statement at the scene, Mr. Mohammadi attended at the police station and began a sworn

video statement at 1:20 p.m. During the course of the video statement, he was shown several photo line ups and without hesitation, identified Ricardo Bell and Greg Bell. He did not identify Mr. Jebara. Testimony of Abdul Wasai Mohammadi [ 35 ] The only evidence with respect to what transpired between Mr. Mohammadi, the Bell brothers and Mr. Jebara is the testimony of the complainant, Abdul Mohammadi. Therefore, the credibility and reliability of Mr. Mohammadi’s testimony is crucial to the Crown’s case. [ 36 ] Mr.

Mohammadi testified as follows: [ 37 ] He is 32 years old and came from Afghanistan to Canada 19 years ago. He completed high school in Canada and reads and understands English but does not write it well. Mr. Mohammadi is a Muslim and testified that he has never consumed alcohol or used drugs. [ 38 ] Prior to April 1, 2009, Mr. Mohammadi had gone to the Playmate Strip Club on Emond Street near Montreal Road on a few occasions for fun and entertainment. He testified that he knew a girl that worked there. One evening a couple of weeks before the incident on April 1, 2009, Mr.

Mohammadi sat beside Ricardo Bell at the Club and began talking to him. Mr. Mohammadi testified, “We became friends.” This was the first time he met Ricardo Bell who introduced himself “Magat.” After that first meeting, he went with Magat to the Playmate Club on one or two other occasions. [ 39 ] Mr. Mohammadi testified that the day before the incident, he took his dog to be groomed at approximately 4 p.m. While at the dog groomers, he received a phone call from Magat, who stated his house had just been robbed. Given that it would take two to three hours for the dog grooming to be completed, Mr.

Mohammadi indicated, as he had nothing to do, he would go to see Magat and be there for him as a friend. He drove alone to Magat’s basement apartment on McArthur Avenue in Vanier, after receiving directions. He was driving a rented, new model, Yukon SUV. [ 40 ] When Mr. Mohammadi entered the apartment, Magat was alone. He stared at Mr. Mohammadi, said his house got robbed and “I know who did it.” Mr. Mohammadi testified that Magat asked, “Where were you all this time?” Mr. Mohammadi explained that he had been at the dog groomers and showed him dog hair on his shirt.

Magat continued to stare at him and ask where he had been and then indicated, “I know who did it. I’ll find out.” Mr. Mohammadi suggested that if the house had been robbed, he should call the police and told him that if there was anything he needed or if Mr. Mohammadi could help him, he would be there for him as a friend. [ 41 ] Mr. Mohammadi left the apartment after approximately 10 minutes. He felt uncomfortable as he had the impression that Magat (Ricardo Bell) was blaming him and implying that he was involved in the robbery. [ 42 ] In the late afternoon the next day, Ricardo Bell called Mr.

Mohammadi and asked if he wanted to go to the strip club. Mr. Mohammadi agreed, drove the rented Yukon to Ricardo Bell’s apartment, picked him up and they arrived at the Playmate Strip Club on Emond Street off Montreal Road at approximately 9 p.m. Mr. Mohammadi parked his Yukon immediately across the street from the entrance to the Playmate in a small parking lot with room for three or four cars, facing inwards. There were no other cars in the parking area at the time. They went into the Playmate Club. Ricardo Bell ordered a drink and Mr. Mohammadi ordered a bottle of water.

The Club was not very busy that night but there was music and a girl on stage. Ricardo Bell and Mr. Mohammadi played one game of pool which Mr. Mohammadi testified took about four to five minutes as he is a very good pool player. [ 43 ] After the pool game, Ricardo Bell again began talking about his house being robbed. This discussion began about 10 minutes after they arrived at the Playmate Club at approximately 9 p.m. Again, Mr. Mohammadi indicated that he did not know who did it, that he was sorry and wished he could help. It was then that Ricardo Bell looked at him and said, “It’s you. You did it.” Mr.

Mohammadi indicated he had the wrong person and he did not do it. [ 44 ] Approximately one minute later, Greg Bell, who was a stranger to Mr. Mohammadi, walked into the Playmate Club and sat down beside Ricardo Bell who introduced Greg Bell as his brother. At Ricardo Bell’s suggestion, Mr. Mohammadi agreed to go outside to talk and the three of them left the Playmate Club and walked towards Mr. Mohammadi’s Yukon. Ricardo Bell then stated, “I want to show you my girl. I want to see if she says that you robbed the house.” Mr.

Mohammadi indicated he would go but only with Ricardo Bell and he would be able to show Ricardo Bell that he did not rob the house. [ 45 ] Nevertheless, the three of them got into the Yukon. Mr. Mohammadi sat in the driver’s seat, Ricardo Bell in the front passenger seat and Greg Bell immediately behind Mr. Mohammadi in the back seat. Ricardo Bell then said that he lost $2,000 and he needed his money. Mr. Mohammadi indicated that he had not stolen the money and had not robbed the house. “You’ve got the wrong guy.” However, Ricardo Bell kept stating, “I need my money.

I need my money.” [ 46 ] Greg Bell was sitting quietly in the back seat behind Mr. Mohammadi. Mr. Mohammadi then heard a “click, click” noise from the area where Greg Bell was sitting. Ricardo Bell kept asking “Where’s my money” and Mr. Mohammadi kept stating that “You’ve got the wrong guy.” Ricardo Bell then said, “Let me check your pockets. How much money have you got right now?” Mr. Mohammadi took out his money and said, “Take my money. Take my car.

Take everything but when you solve your problem, then I need my money back.” Ricardo Bell took the money which was approximately $290 and gave it to Greg Bell. [ 47 ] Mr. Mohammadi testified that he could feel something poking into the back of the driver’s seat and thought that Greg Bell was poking the back of his seat with a gun. [ 48 ] At that point, Ricardo Bell began to ask, “Where is your house? Where is your money? Where is your stash?” Mr. Mohammadi again said, “You’ve got the wrong guy. I did not steal your money. I did not take it.” At that point, Mr.

Mohammadi testified he heard Greg Bell say, “Let me blow his fucking head off” which he repeated a number of times. At this point, Mr. Mohammadi indicated he

was very nervous and scared. Mr. Mohammadi estimated that this whole discussion in the Yukon took approximately five to seven minutes. [ 49 ] At that point, a police cruiser pulled in and parked along the side of Emond Street behind the Yukon blocking it in. Sgt. Miller exited the cruiser and went into the Playmate. The brothers then jumped out of the car, ran towards a Nissan Pathfinder parked on the west side Emond Street just north of the Playmate where there are some other parking spaces. Mr. Mohammadi saw Greg Bell make a hand movement to his jeans under his waistband. Mr.

Mohammadi began running in the opposite direction, south on Emond, and around the corner onto Montreal Road, planning to go into Eddy’s Diner for help. As he was running, he looked back and saw Ricardo Bell following him. Ricardo Bell caught up to Mr. Mohammadi and told him to get into a taxi parked in front of Eddy’s Diner. Mr. Mohammadi stated that he was afraid and thought Ricardo Bell had a gun so he kept running into Eddy’s. [ 50 ] Once in Eddy’s, Mr. Mohammadi testified he sat down in a booth and Ricardo Bell came in and sat with him. Greg Bell then came in and sat with them. Mr.

Mohammadi called 911 with his cell phone which he was holding underneath the table with his left hand. The brothers were asking to go to Mr. Mohammadi’s “crib” and where his money and stash were in loud, threatening voices. The owner of the diner asked them to watch their language and keep it down. Mr. Mohammadi continued to try to call 911 and 911 was calling back. [ 51 ] Although Mr. Mohammadi testified he never saw a gun, he believed there was a gun due to the click, click noise heard when confronted by the brothers in the Yukon. He stated he was trying to cooperate with the Bell brothers until help arrived.

Mr. Mohammadi ran outside the diner and again spoke to 911 indicating that he needed help and that they had a gun. He was reassured that help was on the way. [ 52 ] When the police arrived, Mr. Mohammadi spoke to Sgt. Miller and pointed out the Pathfinder on Montreal Road which was, according to Mr. Mohammadi, leaving the area. Mr. Mohammadi pointed out Greg Bell, who was running to the Pathfinder and Ricardo Bell, who was standing right in front of Eddy’s diner. Mr. Mohammadi said there was a gun in the car. The police ran to the Pathfinder; other police officers arrived; and, Mr.

Mohammadi witnessed the Bell brothers and the other person in the Pathfinder being arrested. During this time, Mr. Mohammadi testified Ricardo Bell remained standing outside Eddy’s Diner and was arrested there. [ 53 ] Shortly thereafter, Mr. Mohammadi provided an oral statement to the police which was written down by Cst. Weir. Later on that afternoon at approximately 1:20 p.m., Mr. Mohammadi provided a sworn video-taped statement to Det. Belanger. In the course of the video-taped statement, he identified, as previously noted, both Ricardo and Greg Bell in a series of photo line ups.

He was not able to identify Moustafa Jebara. [ 54 ] Mr. Mohammadi did not come to court when previously subpoenaed. He testified that he did not want the Bell brothers to come after him. After receiving a second subpoena, he did attend as he was afraid he would be arrested. Credibility [ 55 ] The Crown argued that Mr. Mohammadi’s testimony was reliable and credible. He told his story in a simple, straightforward fashion and there was no evidence that he had consumed any drugs or alcohol that evening. He presented as a somewhat needy, vulnerable individual.

More specifically, the Crown argued that a great deal of Mr. Mohammadi’s testimony was unchallenged. [ 56 ] Defence counsel argued there were numerous difficulties with Mr Mohammadi’s credibility. I agree. In general, Mr. Mohammadi, although he did not overly exaggerate or embellish, was vague and confused on a number of details. Of more concern, his testimony was replete with inconsistencies and contradictions, both internally and with his previous statements. [ 57 ] I noted the following problems with Mr. Mohammadi’s testimony: 1. Mr.

Mohammadi was clear that he was a Muslim and does not consume alcohol or use drugs. He swore on the Koran when giving his video-taped statement to Det. Belanger on April 1, 2009, yet, when testifying before the court, he choose to swear an oath on the Bible, indicating that he believed, although a Muslim, in both the Bible and the Koran. 2. His testimony regarding how he met “Magat” (Ricardo Bell) at the Playmate Strip Club was unclear and the nature of their relationship was vague and confusing. According to Mr.

Mohammadi, he only met Ricardo Bell at the Playmate Club, one or two times prior to the incident on April 1, 2009. Although he did not know Magat’s real name, where he worked, what he did for a living or where he lived, Mr. Mohammadi testified that their relationship was a friendship. He considered Magat a friend for whom he would “be there.” 3. Even after Magat appeared to blame Mr. Mohammadi for the alleged house robbery, Mr. Mohammadi still considered him a friend. When Magat called him the next day to go to the Playmate, Mr. Mohammadi agreed. 4. Mr.

Mohammadi testified, after picking up Magat from his apartment on McArthur Avenue, they arrived at the Playmate Club at approximately 9 p.m. The 911 call from Mr. Mohammadi was placed at 12:10 a.m. on April 1, 2009, approximately three hours later. Mr. Mohammadi testified that, after entering the club, he and Magat ordered drinks, played one game of pool for approximately four to five minutes and then Magat again raised the topic of the robbery. Approximately one minute later, according to Mr. Mohammadi, Greg Bell walked into the club.

The three of them left the club, walked across the street and got into the Yukon. Mr. Mohammadi testified that the discussion in the Yukon took between five and seven minutes, at which point, Sgt. Miller arrived. The Bell brothers ran from the Yukon and Mr. Mohammadi ran to Eddy’s and placed the 911 call. The 911 call finished at 12:15 a.m. when the police were on the scene. Mr. Mohammadi described events which, according to his testimony, took between 10 and 15 minutes and yet he was clear that he and Ricardo Bell arrived at the Playmate Club at approximately 9 p.m.

What happened in the unaccounted for three hours? This is a significant time discrepancy. Although, it is possible that Mr. Mohammadi was mistaken about timing, the discrepancy is so significant it is impossible to determine with any certainty exactly what occurred that night at the Playmate Club. 5. At trial, Mr. Mohammadi agreed that he never saw a gun that night, although he believed a gun was being held by Greg Bell, based on the following:

(

a) He heard a “click, click” noise from the backseat where Greg Bell was sitting. He agreed that he does not know anything about guns other than from watching television and movies. He could not describe the clicking noise in any detail. (

b) Greg Bell stated, “Let me blow his fucking head off” a number of times. Under cross examination by counsel for Mr. Jebara, Mr. Mohammadi indicated that the threatening statement was made by Greg Bell before he heard the clicking noise. This is an obvious contradiction. (

c) He felt something poking in the back of the driver’s seat and believed it was a gun. Mr. Mohammadi acknowledged that the Yukon is a large vehicle with big, padded seats and he further agreed that he could not tell what was poking him in the back. In fact, he stated under cross-examination that it could have been a cell phone or it could have been wood. He thought it was a gun because of the clicking noise and the statement made by Greg Bell. (

d) When they were leaving the Yukon, he saw Greg Bell put his hand to waistband. Mr. Mohammadi’s testimony that he never saw a gun is inconsistent with a number of previous statements. (

i) In his oral statement to Cst. Weir, he stated he saw a gun and when Greg Bell left the Yukon, he stated he saw a gun in his right hand. He also stated that two black males put a gun to his head. These statements are obviously contradictory to and inconsistent with his testimony. (ii) In addition, Mr. Mohammadi told the 911 operator that “they were holding a gun underneath the table at Eddy’s” and that “they had put a gun on him.” Again, these statements were inconsistent with his testimony that he never saw a gun. (iii) When providing the sworn, video-taped statement to Det.

Belanger and being pressed as to details regarding the gun, Mr. Mohammadi admitted he never, in fact, saw a gun. When asked in cross-examination why he made inconsistent statements to the police regarding the gun, Mr. Mohammadi indicated he probably did not pay attention and that he was “cold,” and “shocked.” He testified that when providing the statement to Cst. Weir, “at that moment I didn’t pay attention. It’s just whatever was coming out of my mouth.” He agreed that he was not telling the truth to Cst. Weir.

He further indicated that he thought there was a gun because of what transpired in the Yukon and that he was “lost” and “paranoid.” At trial, Mr. Mohammadi repeated that the Bell brothers never showed him a gun or pointed a gun at him and demanded money. 6. When Sgt. Miller arrived and went into the Playmate Club, the Bell brothers ran towards the Pathfinder, Mr. Mohammadi testified that he ran down Emond Street and around the corner into Eddy’s Diner. Despite believing that Greg Bell had a gun, Mr. Mohammadi did not simply run across the street and ask Sgt. Miller for help.

Instead he chose to run down the street and around the corner into Eddy’s Diner. When asked why he would do that, Mr. Mohammadi indicated that he was “kind of shocked at that moment. I was shocked and lost.” When it was suggested to Mr. Mohammadi under cross-examination that the rest of his evidence could suffer given that he was shocked and lost, and that he really did not have a clear recollection of what occurred, Mr. Mohammadi agreed. 7. Mr Mohammadi testified that the reason he went into Eddy’s, apart from the fact that he was shocked and lost, was for help.

However, he did not, immediately upon exiting the Yukon, call 911. He did not go across the street into the Playmate and find Sgt. Miller. Finally, he did not request help from any of the employees or patrons in Eddy’s. He simply went into Eddy’s and sat down. Shortly thereafter, Ricardo Bell entered the diner and sat down with him. It is difficult to reconcile Mr. Mohammadi’s statement that all he wanted was help, with his actions or inactions after he ran away from the Yukon. 8. Mr.

Mohammadi testified that he saw the Bell brothers run across the street and north towards a Nissan Pathfinder and that it was the first time he noticed the Pathfinder. Yet, he stated to Cst. Weir that he had seen the Pathfinder earlier with black males inside. Further, he indicated to Cst. Weir that Greg Bell tried to get him to hide the gun in the Yukon and that Greg Bell said something to the effect of “Oh shit, what am I going to do with this gun?” He stated nothing to this effect when testifying at trial. 9. There are numerous inconsistencies with what Mr.

Mohammadi told the 911 operator and his testimony at trial. Apart from the previously referred to inconsistencies regarding the gun being held under the table and the gun being put on him, he told the 911 operator that: (

a) there was a big fight at the Playmate; (

b) there were four people involved; and (

c) there were a couple of black guys, not four people. Again, it appears that Mr. Mohammadi was saying whatever came out of his mouth, at that point. 10. There is a significant inconsistency between the evidence of Mr. Mohammadi and Sgt. Miller as to where Ricardo Bell was at the time Sgt. Miller came on the scene and arrested him. Sgt. Miller was clear that he pulled Ricardo Bell out of the front passenger side of the Pathfinder and then arrested him. Mr. Mohammadi was certain that Ricardo Bell remained standing outside the front entrance of Eddy’s and never got into the Pathfinder. Mr.

Mohammadi testified that he pointed out Ricardo Bell to Sgt. Miller and Sgt. Miller then arrested him. It was only Greg Bell, according to Mr. Mohammadi who left Eddy’s and got into the Pathfinder. I find the evidence of Mr. Mohammadi as to where Ricardo Bell was located and arrested to be completely unreliable. [ 58 ] In

summary, given the three hour time gap which is unaccounted for, Mr. Mohammadi’s vague and at times confusing testimony, the number of contradictions and inconsistencies in his evidence, in particular with respect to whether or not he saw a gun and where Ricardo Bell was located when arrested, I find Mr. Mohammadi’s testimony to be unreliable and not credible. I cannot find with any certainty what, in fact, occurred on April 1, 2009 between Mr. Mohammadi, the Bell brothers and Mustafa Jebara. I did not get a clear or

complete story from Mr. Mohammadi. Although the circumstances are suspicious, it is impossible to determine exactly what occurred. I am left with the fact that a small, loaded, prohibited handgun was found in the centre console of the Pathfinder, within which the threeaccused were located, just prior to their arrest. Law and Analysis [59] In order for the Crown to prove the firearms offences beyond a reasonable doubt, possession and knowledge must be provenbeyond a reasonable doubt. The essential elements of possession are outlined under s. 4(3) of the Criminal Code as follows:

(3) For the purposes of this Act, (

a) a person has anything in possession when he has it in his personal possession or knowingly (

i) has it in the actual possession or custody of another person, or (ii) has it in any place, whether or not that place belongs to or is occupied by him, for the use or benefit of himself or of another person;and (

b) where one of two or more persons, with the knowledge and consent of the rest, has anything in his custody or possession, itshall be deemed to be in the custody and possession of each and all of them. [60] Therefore, the Criminal Code creates three types of possession: 1. Personal possession as outlined under s. 4(3)(a); 2. Constructive possession as set out in s. 4(3)(a)(

i) and s. 4(3)(a)(ii); and, 3. Joint possession as defined in s. 4(3)(b). [61] It is argued in this case that Greg Bell had personal possession of the firearm and Ricardo Bell and Moustafa Jebara hadconstructive possession or joint possession. [62] In R. v. Pham, (ON CA), [2005] O.J.

No. 5127 (C.A.) (QL), the Ontario Court of Appeal lists the elementsof possession as follows: 15 In order to constitute constructive possession, which is sometimes referred to as attributed possession, there must beknowledge which extends beyond mere quiescent knowledge and discloses some measure of control over the item to be possessed. SeeR. v. Caldwell (1972), 1972 ALTASCAD 33 , 7 C.C.C. (2d) 285 (Alberta Supreme Court, Appellate Division); R. v. Grey(1996), (ON CA), 28 O.R. (3d) 417 (C.A.). 16 In order to constitute joint possession pursuant to section 4(3)(

b) of the Code there must be knowledge, consent, anda measure of control on the part of the person deemed to be in possession. See R. v. Terrence, (SCC), [1983] 1 S.C.R.357 (S.C.C.); R. v. Williams (1998), (ON CA), 40 O.R. (3d) 301 (C.A.); R. v. Barreau, (BC CA), 9B.C.A.C. 290, 19 W.A.C. 290 (B.C.C.A.) and Re: Chambers and the Queen (1985), (ON CA), 20 C.C.C. (3d) 440(Ont. C.A.). 17 The element of knowledge is dealt with by Watt J. in the case of R. v. Sparling, [1988] O.J. No. 107 (Ont. H.C.) atp. 6: There is no direct evidence of the applicant's knowledge of the presence of narcotics in the residence.

It is not essential that there be suchevidence for as with any other issue of fact in a criminal proceeding, it may be established by circumstantial evidence. In combination,the finding of narcotics in plain view in the common areas of the residence, the presence of a scale in a bedroom apparently occupied bythe applicant, and; the [applicant’s] apparent occupation of the premises may serve to found an inference of the requisite knowledge. The court of appeal decision in R. v. Sparling, [1988] O.J.

No. 1877 upheld the above passage as being sufficientevidence to infer knowledge. 18 The onus is on the Crown to prove beyond a reasonable doubt, all of the essential elements of the offence ofpossession. This can be accomplished by direct evidence or may be inferred from circumstantial evidence. … [63] In R v. Anderson-Wilson¸ 2010 ONSC 489 , [2010] O.J No. 377 (Sup. Ct.) (QL), Justice C.

Hill discussed the issue ofcircumstantial evidence in the context of possession of firearms as follows: 72 The essential component of self-instruction on circumstantial evidence is that the trier of fact must be satisfied thatthe only rational inference that can be drawn from the circumstantial evidence is that the accused is guilty: R. v. Griffin; R. v. Harris(2009), 2009 SCC 28 , 244 C.C.C. (3d) 289 (S.C.C.) at para. 33. Circumstantial evidence must be viewed as a whole and noteach piece individually: R. v. Warkentin et al. (1976), (SCC), 30 C.C.C. (2d) 1 (S.C.C.) at 20.

"[T]he mere existence ofany rational, non-guilty inference is sufficient to raise a reasonable doubt": R. v. Griffin; R. v. Harris, supra, at para. 34. 73 The Crown may seek to establish the existence of a fact in issue by submitting that an inference may reasonably andcircumstantially be drawn from the primary facts - there exists an inferential gap between the primary fact and the fact to be proved: R. v.

Arcuri (2001), 2001 SCC 54 , 157 C.C.C. (3d) 21 (S.C.C.) at 31-2; R. v. Cinous (2002), 2002 SCC 29 , 162 C.C.C. (3d)129 (S.C.C.) at 172-3. Whether the inference is a reasonable one to draw usually involves an application of "human experience andcommon sense" (R. v. Figueroa et al., 2008 ONCA 106 , [2008] O.J. No. 517 (C.A.) at para. 33; U.S.A. v. Huynh (2005), (ON CA), 200 C.C.C. (3d) 305 (Ont.C.A.) at 307). Circumstantial inferences are ones which "can be reasonably andlogically drawn from a fact or group of facts established by the evidence": R. v. Morrissey (1995), (ON CA), 97C.C.C. (3d) 193 (Ont.C.A.) at 209.

A trier of fact "cannot be invited to draw speculative or unreasonable inferences": R. v. Figueroa etal., at para. 35, 42. Most cases "will involve hiatuses in the evidence which can be filled only by inference": Lameman v. Canada(Attorney General), 2006 ABCA 392 , [2006] A.J. No. 1603 (C.A.) at para. 87. "The process of drawing inferences fromevidence is not, however, the same as speculating even where the circumstances permit an educated guess": U.S.A. v. Huynh, at 307. 74 Possession cases are fact-driven inquiries.

Where proof is [dependent] upon circumstantial evidence, some facts willhave more probative value than others. It is the cumulative effect of relevant circumstances which must be assessed in determiningwhether proof beyond a reasonable doubt exists. In weapons prosecutions, the following circumstances have been considered relevant: (1) the physical proximity of the firearm to the accused (2) the degree of visibility of the firearm: R. v. Marryshow, [2003] O.J. No. 1332 (S.C.J.) at para. 36-39 (aff'd [2008] O.J. No. 4790(C.A.)); R. v. Green; R. v.

Rawlins (1993), 5 M.V.R. (3d) 280 (Ont.C.A.) at 281 - a sawed-off rifle can be easily concealed because of itsreduced length: R. v. Ferguson (1985), (ON CA), 20 C.C.C. (3d) 256 (Ont.C.A.) at 262 (3) the degree of communal use of a vehicle containing the firearm: R. v. Freeman, [2006] O.J. No. 1021 (C.A.) at para. 6 (4) the size, nature and number of weapons in a particular space: R. v. Balasuntharam, [1999] O.J. No. 4861 (C.A.) at para. 2-4; R. v.Gagliardi, [2005] O.J. No. 1016, 2005 CarswellOnt 1543 (Ont.S.C.J. 2005) at para. 43 (aff'd [2006] O.J.

No. 72 (C.A.)) (5) the nature of other items located proximate to the firearm capable of providing context for inferences of knowledge and control: R. v.Coates (2003), (ON CA), 176 C.C.C. (3d) 215 (Ont.C.A.) at para. 11, 14 (balaclava, binoculars, map, duct tape,etc.); R. v. Schero, [1969] O.J. No. 413 (C.A.) at para. 2 (face masks, gloves, handcuffs). 75 Not everyone who drives or rides in a car containing concealed illegal objects necessarily knows the presence ornature of those objects: R. v. Amado, [1996] B.C.J. No. 1943 (S.C.) at para. 33.

In unlawful possession cases, where the prohibited itemis concealed or not readily visible in a vehicle driven by the accused, the courts have generally required more than simply evidence of theproximity of the accused and the item: R. v. Green; R. v. Rawlins, supra at 281; R. v. Bauer, 2003 BCCA 138 , [2003] B.C.J.No. 505 (C.A.) at para. 18; R. v. Anderson, supra at para. 26; R. v. Iturriaga, (BC CA), [1993] B.C.J. No. 2901 (C.A.)at para. 9. … 77 In some firearms prosecutions, the established circumstances may give rise only "to a high degree of suspicion" (R.v. Freeman, supra at para. 7; R. v.

Schero, supra at para. 3) while falling short of satisfaction that the only reasonable inference to bedrawn from the proven facts is guilt: R. v. Green; R. v. Rawlins, supra, at 281. For example, in R. v. Rush, [2001] O.J. No. 1645 (C.A.) atpara. 1, Osborne A.C.J.O. stated: In our view there were competing inferences available to the trial judge on the issue whether the appellant was in possession of thefirearms and ammunition located in the car in which he was found as a passenger.

Accordingly it was not open to the trial judge to findthat the only reasonable inference to be drawn from the facts or [to] be found then was that the appellant was [a] possessor of thefirearms and ammunition in question. (See R. v. Cooper). See also, R. v. Schero, supra, at para. 3. [64] In the case at bar, given that Mr. Mohammadi, although inconsistent, testified that he never saw a gun, proof of the possession ofthe gun by Greg Bell and its use in the commission of a robbery is based on circumstantial evidence.

Further, the constructive or jointpossession of the firearm by Ricardo Bell and by Moustafa Jebara is also dependent upon circumstantial evidence. [65] In the case at bar, there are significant weaknesses in the Crown’s case as follows: 1. As previously noted, Abdul Mohammadi was an unreliable and non-credible witness whose testimony cannot be relied upon eitherwith respect to the possession of a firearm by Greg and Ricardo Bell, nor with respect to the robbery. The only evidence with respect tothe firearms offences is circumstantial evidence. 2. Although Mr. Mohammadi told the 911 operator and Det.

Weir that he had seen a firearm, he testified that he did not. His evidencewas that he heard a “click, click” noise from the back seat of the Yukon and then Greg Bell stated, “Let me blow his fucking head off.” Under cross-examination, he confused those two events indicating that the statement was made prior to hearing the clicking noise. Hefurther testified that he felt a poking in the back of the driver’s seat but indicated it could have been anything, a cell phone or a piece ofwood. Finally, he testified that he saw Greg Bell put his hand into the waistband of his pants upon exiting the Yukon.

Thesecircumstances, if believed, must be assessed in determining whether the Crown has proven beyond a reasonable doubt that Greg Bell wasindeed in possession of a prohibited handgun during the confrontation between Mr. Mohammadi and the Bell brothers in the Yukon. Ifind that they do not. It would be reasonable that if Greg Bell had a gun in his possession, he would have shown it to Mr. Mohammadi inorder to extort money from him.

Another reasonable inference is that he did not have a gun in his possession but was making threats andperforming actions that led Mr Mohammadi to believe that there was a handgun or a firearm in his possession. 3. When the Bell brothers and Mr. Mohammadi saw Sgt. Miller park his marked cruiser and enter the Playmate Club, they all exited

the Yukon. Mr. Mohammadi testified that the Bell brothers were running back towards the Pathfinder but they did not leave the area. Ricardo Bell, according to Mr. Mohammadi, followed him into Eddy’s Diner as did Greg Bell shortly thereafter. Therefore, they did not flee the scene and consciousness of guilt cannot be inferred. The Pathfinder was parked and in a stationary position on the corner of Montreal Road and Emond Street, when Mr. Mohammadi and the Bell brothers left the diner. Upon their arrest, all three accused were cooperative and compliant. Mr. Jebara stated he was there to pick up his friends. 4.

When the officers converged on the scene, none of them observed any motion in the Pathfinder. 5. The handgun was located deep in the centre console of the Pathfinder beside a cell phone charger. The evidence of the police officers differed as to how the gun was placed. It was, however, located by Sgt. Pulfer underneath a small, plastic tray containing neatly stacked CDs and sunglasses. This was a situation where the firearm was not visible to any of the accused when discovered. It did not appear to have been thrown into the vehicle’s console in a panic.

Greg Bell was only in the Pathfinder for a very brief period of time after leaving Eddy’s and prior to his arrest. 6. It is unclear who had easy access to the console. None of the police officers could recall how the console opened, whether from front to back or side to side, nor were any photographs taken of the interior of the Pathfinder or the console. It is unclear whether Greg Bell would be able to reach over an open console from the backseat and neatly place the handgun underneath the tray. It is also unclear as to whether Greg Bell could even see into the console from the backseat. 7.

Ricardo and Greg Bell did not own nor operate the Pathfinder and neither of them was located in the driver’s seat. There is no evidence that they were ever in the Pathfinder prior to entering it after leaving Eddy’s Diner. According to Mr. Mohammadi, he picked up Ricardo Bell that evening and drove him to the Playmate in the Yukon. There is no evidence as to how Greg Bell got to the Playmate that night. 8. Mr. Jebara was located in the driver’s seat of the vehicle owned by his mother.

The Agreed Statement of Facts states that she loaned her son the vehicle that night; that neither she nor her husband owned a handgun; and that there was no handgun in the vehicle when she loaned it to her son. It is reasonable to infer that Mr. Jebara was driving the Pathfinder that evening in which the prohibited handgun was found. Although Mr.

Jebara’s knowledge of the firearm in the vehicle can be inferred, that is not the only reasonable inference to be drawn from the circumstantial evidence nor is there sufficient circumstantial evidence upon which to conclude that he had a measure of control over that firearm. Although not proven beyond a reasonable doubt, another rational conclusion or reasonable inference is that Greg Bell had the handgun in his possession and placed it in the console of the Pathfinder after Ricardo Bell and Moustafa Jebara were removed from the vehicle and arrested. 9.

Is there sufficient circumstantial evidence to satisfy the court that the only reasonable inference to be drawn is that Greg Bell had direct possession and Ricardo Bell had constructive or joint possession of the prohibited handgun and used it in robbing Mr. Mohammadi? I do not find the circumstantial evidence sufficient to find this to be the only reasonable inference. As noted, another rational explanation is that although threats were made by Greg Bell during the confrontation in the Yukon, he never had the handgun in his possession.

The gun was brought to the scene and hidden in the Pathfinder by Moustafa Jebara. This alternative explanation I find not to be pure speculation but another reasonable inference consistent with the circumstantial evidence. [ 66 ] Therefore, given the weaknesses in the Crown’s case and, in particular the lack of credibility of the principle Crown’s witness, Mr. Mohammadi, it is impossible to know what transpired between the Bell brothers, Moustafa Jebara and Mr. Mohammadi on April 1, 2009.

Although the circumstances are suspicious and the Crown’s theory reasonable, I cannot find the Crown has established the elements of the offences beyond a reasonable doubt. Therefore, I find Moustafa Jebara not guilty of all the offences with which he has been charged. I further find Greg Bell not guilty of all the offences with which he is charged.

Finally, I find Ricardo Bell not guilty of all the offences with which he has been charged, other than a breach of recognizance by being away from his residence contrary to s. 145(3) of the Criminal Code , count 14 on the indictment. ___________________________ Blishen J. Released : February 24, 2011 CITATION : Her Majesty the Queen v. Bell, 2011 ONSC 1218 COURT FILE NO.: 09-R-2122

ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: HER MAJESTY THE QUEEN Plaintiff - and – GREG ANTHONY BELL, RICARDO TRISHTON BELL, and MOUSTAFA AHMAD JEBARA Defendants REASONS FOR JUDGMENT Blishen J. Released : February 24, 2011