R. v. Blagdon, 2013 NSPC 61

IN THE PROVINCIAL COURT OF NOVA SCOTIA Citation: R. v. Blagdon, Date: August 2, 2013 Docket: 2467169 - 2467193 Registry: Halifax Between: Her Majesty the Queen v. Shalamar Blagdon and Kojo Clayton Revised judgment: The text of the original judgment has been corrected according to this erratum dated September 16, 2013 . Judge: The Honourable Judge Anne S.

Derrick Heard: June 24, 25, July 25 and 26, 2013 Decision: August 2, 2013 Charges: sections 86(2); 88(1); 90; 92(1); 94(1); 95(1); 96(a); 108(1)(b), of the Criminal Code , and, Kojo Clayton only, sections 239 x 2; 85(1)(a); 86(1); 87(1); 117.01(1); 244; 244.2; 145(3), of the Criminal Code .

Counsel: Rick Woodburn, for the Crown Trevor MacGuigan, for Kojo Clayton, and Geoff Newton, for Shalamar Balgdon Erratum: [ 1 ] Paragraph 58 , last sentence, replace “I am convicting Clayton on the remaining charges – Counts 1 through 6, and Count 8, as follows:” with “I am convicting Clayton on the remaining charges – Counts 1 through 6, as follows:” [ 2 ] Paragraph 59, replace “To summarize, Kojo Clayton is guilty of Counts 1, 3, 4, 5, 8, and 16.” with “To summarize, Kojo Clayton is guilty of Counts 1, 3, 4, 5, and 16.” [ 3 ] Paragraph 90, last sentence, replace “Mr Clayton alone is convicted on Counts 3, 8, and 16.” with “Mr Clayton alone is convicted on Counts 3 and 16.” IN THE PROVINCIAL COURT OF NOVA SCOTIA Citation: R. v.

Blagdon, 2013 NSPC 61 Date: August 2, 2013

Docket: 2467169 - 2467193 Registry: Halifax Between: Her Majesty the Queen v. Shalamar Blagdon and Kojo Clayton TRIAL DECISION Judge: The Honourable Judge Anne S. Derrick Heard: June 24, 25, July 25 and 26, 2013 Decision: August 2, 2013 Charges: sections 86(2); 88(1); 90; 92(1); 94(1); 95(1); 96(a); 108(1)(b), of the Criminal Code, and, Kojo Clayton only, sections239 x 2; 85(1)(a); 86(1); 87(1); 117.01(1); 244; 244.2; 145(3), of the Criminal Code.

Counsel: Rick Woodburn, for the Crown Trevor MacGuigan, for Kojo Clayton, and Geoff Newton, for Shalamar Balgdon By the Court: Introduction [1] On March 24, 2012, a late night altercation in a bar in downtown Halifax was followed fairly quickly by shots being fired and,ultimately, the charging of Kojo Clayton, whom I will refer to as “Clayton”, and Shalamar Blagdon, whom I will refer to as “Blagdon”,with 17 offences. A considerable number of the charges relate to a .32 calibre revolver seized from a Dodge Neon, being driven byClayton accompanied by Blagdon as a passenger.

In addition, Clayton alone was charged with the attempted murder of two men,Andrew Martin and an unidentified male, and a number of related charges. [2] The parties have agreed that the unidentified male was Devon Johnson. Charges against Clayton Alone [3] At the end of the trial, and subject to the principles in R. v. Kienapple, (SCC), [1975] 1 S.C.R. 729, the Crownindicated it is seeking, on the charges against Clayton alone, convictions for: the attempted murder of Johnson, contrary to

section 239 ofthe Criminal Code – Count 10; use of a .32 calibre revolver in a careless manner or without reasonable precaution for the safety of otherpersons, contrary to section 86(1) of the Criminal Code – Count 12; and intentional discharge of a firearm while being reckless as to thelife or safety of another person, contrary to

section 244.2 of the Criminal Code – Count 16. [4] Clayton does not dispute that he had possession of the .32 calibre revolver and shot it. This is what the Crown argues constitutedthe attempted murder of Johnson. While the evidence establishes that when Clayton fired the revolver, he was following Johnson,Clayton disputes that he intended to kill him. He admits only to being guilty of Count 16, that his intentional discharge of the revolverwas reckless “as to the life or safety of another person”. Clayton submits he is guilty of that offence and not attempted murder.

Charges against Blagdon and Clayton [5] The discovery by the police of a .32 calibre revolver in the glove box of the Neon led to Blagdon and Clayton being chargedjointly with a number of offences. Again, subject to Kienapple, the Crown seeks convictions against Blagdon and Clayton for: carelessstorage of a firearm, contrary to section 86(2) – Count 1; possession of a .32 calibre revolver for a purpose dangerous to the public peaceor for the purpose of committing an offence, contrary to section 88(1) – Count 2; carrying a concealed weapon, contrary to

section 90 –Count 3; unlawful possession of a .32 calibre revolver, contrary to section 92(1) – Count 4; being occupants of a 2003 Dodge Neon, EJW881, in which they knew there was a firearm, a .32 calibre revolver, contrary to section 94(1) – Count 5; unlawful possession of a loadedprohibited weapon, a .32 calibre revolver together with readily accessible ammunition, contrary to section 95(1)(a) – Count 6; andunlawful possession of a .32 calibre revolver, knowing the serial number had been altered, defaced, or removed, contrary to section108(1)(b) – Count 8. [6] The only charges against Blagdon are the ones relating to the .32 calibre revolver, with Clayton as his co-accused. He disputes the

Crown’s allegation that he had possession of the revolver in the glove box, requiring the Crown to prove beyond a reasonable doubt that he had knowledge of, and control over, the gun. The Crown acknowledges there is no direct evidence of Blagdon having the revolver in his actual, physical possession. Seven Offences for Which Acquittals are Entered [ 7 ] At the conclusion of the trial, Mr.

Woodburn advised that the Crown was no longer seeking convictions against Clayton for attempted murder of Andrew Martin (Count 9); pointing a .32 calibre revolver at Andrew Martin (Count 13); intent to endanger the life of Andrew Martin by discharging a .32 calibre revolver (Count 15); and two alleged breaches of a recognizance (Counts 14 and 17). During Defence submissions, the Crown also conceded that Count 11 on the Information was a nullity. No evidence was tendered to prove Count 7, that Clayton and Blagdon knew the .32 calibre revolver was obtained by the commission in Canada of an offence, contrary to

section 96 (

a) of the Criminal Code . [ 8 ] In view of what I have just indicated, I am entering acquittals for Clayton on Counts 7, 9, 11, 13, 14, 15 and 17. I also acquit Blagdon of Count 7.

Summary of the Central Issues [ 9 ] There are two central issues in this case: whether when Clayton was firing the .32 calibre revolver he intended to kill Johnson; and whether Blagdon was in possession of the .32 calibre revolver located by police in the glove box of the Neon. Any of the other remaining charges against Blagdon and Clayton must be dealt with once these two primary issues have been resolved. Essential Elements not in Dispute [ 10 ] Neither Clayton nor Blagdon have put their identities into issue.

Although witnesses, who did not know either Clayton or Blagdon, have used various descriptors to identify the individuals they observed, it is apparent who they were talking about. Clayton was wearing a “red hoodie”, Blagdon a “black jacket”. A man in a “white jacket” was Johnson. His friend is “C.C.” Martin, that is, Andrew Martin. A fifth man, also with Johnson and Martin that night, has not been identified by name. In my one reference to him in these reasons I call him “Blue Shirt”.

His presence at the scene adds nothing to the critical issues in this case. [ 11 ] There is also no dispute that the .32 calibre revolver seized by police at the time of Clayton’s and Blagdon’s arrest is “ a handgun and a prohibited firearm within the meaning of section 84(1) of the Criminal Code of Canada .” ( Exhibit 10, Report of Robin Theriault, firearms and toolmark examiner, page 1 ) There is no issue about the potential lethality of the gun: the Crown’s firearm expert, Robin Theriault, testified that the .32 automatic calibre ammunition loaded in the revolver was capable of causing serious bodily harm or death. [ 12 ] While Blagdon makes no concessions about the possession of the .32 calibre revolver, he and Clayton agreed to the admission of information from the Canadian Firearms Registry records confirming that neither of them possess a firearms license or registration and have made no such applications. ( Exhibit 12 - Affidavits of Judith Spears, Acting Operations Manager, Provincial Firearms Office, dated July 23, 2013 ) The Nature of the Evidence [ 13 ] Much of what happened in this case was captured by video surveillance cameras.

Some events were viewed from various angles by different cameras. The different cameras do not necessarily show the correct times and furthermore, the time stamps for the various cameras are not synchronized. In addition to the video surveillance and photographic evidence, including still photographs taken from the camera footage, the Crown called security staff from the Liquor Dome, police witnesses, and two experts – Robin Theriault, a firearms and toolmark examiner, and Cst. David Emberlin, a forensic IDENT officer. [ 14 ] As is their right, Clayton and Blagdon called no evidence.

They enjoy the presumption of innocence throughout the trial with the onus of proving their guilt beyond a reasonable doubt resting squarely with the Crown. Being Admitted to the Dome [ 15 ] The critical events occurred in the small hours of March 24, 2012. Much of what happened is undisputed. Clayton and Blagdon were admitted to the Liquor Dome (“the Dome”), a series of bars that occupy a downtown block in the area of Argyle Street.

The video surveillance shows them greeting door staff and looking cheerful as they wait to be admitted inside. [ 16 ] The evidence indicates that like any other patrons, Blagdon and Clayton were patted down for drugs, alcohol, and weapons at the entrance. Once inside, a fight erupted with the result that they were removed by security staff along with three other men – Martin, Johnson, and Blue Shirt. All five men were escorted through the bar to Argyle Street where a verbal exchange continued. It appears that the altercation was sparked by Johnson punching Clayton inside the Dome.

Removed from the Dome and Back on Argyle Street [ 17 ] The video footage and the testimony of security staff confirm that out on Argyle Street Johnson was very agitated. He can be seen in the video surveillance pacing back and forth, gesturing vehemently with his hands. Clayton and Blagdon were the focus of his aggravation while Martin attempted to calm the situation down. [ 18 ] Security staff from the bar were also out on Argyle Street monitoring what they viewed as a volatile situation. Chad Cox was supervising the two Argyle Street entry doors to the Liquor Dome.

He watched the two groups of men, arguing back and forth in an aggressive manner. Johnson was being confrontational with Clayton. Cox described it as “a ‘fuck you/fuck you back’ type of thing.” [ 19 ] Cox was 5 to 10 feet away from the arguing. He observed that after a few minutes, Clayton left the area, walking south on Argyle Street toward the next cross-street which was Prince Street. Cox recalls the arguing continued in his absence but then just “fizzled out”.

The video footage shows Johnson and Martin leave the scene, walking south on Argyle and seconds later, Clayton and Blagdon heading that way as well, apparently strolling. ( Exhibit 1, DVR 2, Camera 11, 2:50:39; also Exhibit 1, DVR 2, Camera 15 at 2:50:21 – 2:50:31 ) Before heading off, the camera footage shows Clayton go up to Blagdon, put his arm around him, and speak into his ear. [ 20 ] Video footage of an adjacent garage bay shows that Johnson and Martin did not go far and stayed in the area, loitering in a garage entryway. ( Exhibit 2, Camera 6, 2:24:13 – 2:49:20 ) Clayton and Blagdon Leave for a Few Minutes [ 21 ] As Clayton was leaving, Cox heard him say he would be “back” or “right back”.

The events of the evening stuck out, and Cox says he made a mental note of these words. He did not include them in his statement to the police, a statement that was taken later that same morning after the shooting had occurred. [ 22 ] Ahmed Shair, another Dome security supervisor, recalls Clayton saying even more as he left. Shair’s recollection is that Clayton said to Johnson something along the lines of: “You’ll see what’s going to happen.

I’m leaving and coming back.” Shair did not include this in his police statement but was definite in his evidence about what he heard Clayton say and was unshaken in cross-examination. [ 23 ] Other than the fact that Cox and Shair did not tell the police officers taking their statements about Clayton’s comments, I have no basis for disbelieving these witnesses or doubting their reliability. It is not surprising if they did not relate in their police statements everything that happened after such shocking events as a shooting in a busy part of the downtown.

And, given the tensions between Johnson and Clayton after the fight in the Dome, it is reasonable to believe Clayton would have said something as he left the area. [ 24 ] However, Clayton apparently telling Johnson he would be back and that their grievances were not yet over does not add much to the Crown’s case. Nothing in Clayton’s words indicate a specific intent to come back and kill Johnson. Clayton and Blagdon Return to Argyle Street [ 25 ] In a matter of minutes, Clayton and Blagdon did come back, walking north along Argyle Street. The surveillance cameras also pick up Johnson and Martin.

Martin walked ahead of Johnson, and they both looked back, south along Argyle, in the direction of Clayton and Blagdon. Johnson does not appear to have been particularly concerned; he can be seen smoking a cigarette and walking at an unhurried pace. Johnson then looks back again and points.

There is nothing to suggest he was either anxious or agitated. ( Exhibit 1, DVR 2, Camera 11, 2:54:30 ) [ 26 ] A few seconds later the video footage of the area shows Clayton come into view. ( Exhibit 1, DVR 2, Camera 11, 2:54:30 – 2:54:56 ) He is walking quite fast and purposefully, heading in the direction Johnson and Martin have gone. There are people on the sidewalk and Clayton steps into the street. Blagdon is following him.

His pace is slower than Clayton’s. [ 27 ] The video surveillance footage ( Exhibit 1, DVR 2, Camera 15 ) makes it possible to determine that, while walking, Clayton is 22 seconds behind Johnson and Martin. ( Exhibit 1, DVR 2, Camera 15, 2:54:34 – 2:54:56 ) Clayton can be seen stopping for several seconds before crossing in front of security by the Argyle Street door of the Dome and heading toward Carmichael Street, the next cross street. [ 28 ] Cox watched all the men walk past, heading north. He thought a fight might break out.

Setting out to follow, he testified to observing what the video surveillance confirms: before the corner of Argyle and Carmichael, Johnson picks up his pace, breaking into a run. Clayton gathers speed and begins to run, rounding the corner at Carmichael. ( Exhibit 1, DVR 3, Camera 11, 2:44:46 – 2:44:50 ) Just before starting to run, Johnson turned and looked back in Clayton’s direction. ( Exhibit 1, DVR 3, Camera 11, 2:44:46 ) [ 29 ] The Crown argued that Clayton must have shown the gun or said something that then animated Johnson to start running. I find that I cannot draw that inference from the evidence.

It is as likely that Johnson saw how dogged Clayton was in his pursuit and took off running to get away from him. Inferring that Clayton brandished a gun at Johnson would be speculation. Rounding the Corner of Carmichael and Argyle Streets [ 30 ] Johnson rounded the corner of Carmichael and Argyle Streets ahead of Clayton. He was running; Clayton can be seen running after him. They both disappear from the camera’s view.

Blagdon is no longer with Clayton at this point. ( Exhibit 5, Camera 13, 2:49:56 – 2:50:06 ) Gun Shots on Carmichael Street [ 31 ] After the men rounded the corner onto Carmichael Street, Cox lost sight of them. Within 3 to 5 seconds he heard 3 to 4 loud cracks, like fireworks. There was no delay between the shots.

Cox started to head in the direction the men had gone, but slowly at first as he did not know what was going on. [ 32 ] Ahmed Shair also heard three bangs that sounded like gunfire as did the head of security, Adam Morley, and a patrol Sergeant who happened to be only two blocks away assisting officers with a call. There were three shots, in quick succession. [ 33 ] Video surveillance confirms that Blagdon never made the turn onto Carmichael Street.

Seconds after Clayton has rounded the corner onto Carmichael, Blagdon can be seen walking quite slowly and then turning and walking, south, in an unhurried manner. ( Exhibit 1, DVR 3, Camera 11, 2:44:58 ) [ 34 ] The evidence indicates that Clayton, who had been walking with his hands bunched up in the front of his hoodie, stretches out his arm and fires at Devon Johnson almost immediately after turning the corner on to Carmichael Street. ( Exhibit 1, DVR 3, Camera 15, 2:44:49 – 2:45:07; Exhibit 3, Photo 4 ) A muzzle flash can be seen in the video footage and the still photographs taken from the footage.

[35] I am satisfied that the evidence establishes that Clayton got off three shots as he ran up Carmichael Street after Johnson. In thesurveillance video, Johnson can be seen weaving as he runs. The only reasonable inference is that this was an avoidance manoeuver asthe shots were fired.

Near the top of the street, Clayton puts his hand down and into his hoodie pocket and slows down from running to awalk. (Exhibit 1, DVR 3, Camera 15) Camera footage shows him walking around the corner onto Grafton Street and turning in thedirection Johnson has gone. (Exhibit 1, DVR 1, Camera 8, 2:28:54) On Grafton Street [36] Video surveillance shows that Johnson continued to run south on Grafton Street with Clayton walking purposefully in the samedirection.

Johnson then slows and Clayton starts to run, now with his hands no longer in his pockets. (Exhibit 1, DVR 1, Cameras 1, 6and 9, 2:28:43 – 2:29:06) Nothing more happens on Grafton Street and whatever purpose Clayton had in pursuing Johnson seems spent. Attempted Murder – Count 10: Was Clayton Shooting at Johnson Intending to Kill Him? [37] The facts I have described to this point primarily relate to the charge of attempted murder against Clayton.

In due course I will dealwith the charges against Blagdon. [38] The evidence satisfies me beyond a reasonable doubt that Clayton purposefully chased after Johnson on Carmichael Street andfired off three shots in his direction. Indeed, in final submissions, Mr. MacGuigan acknowledges that Clayton was shooting at Johnsonon Carmichael Street. Johnson was not hit, although that fact is irrelevant to the issue of whether a shooting is an attempted murder.Injury to the victim is not an essential element of the crime of attempted murder. (R. v.

Gordon, 2009 ONCA 170 , [2009] O.J.No. 724 (C.A.), paragraph 56) The crucial question is whether it can be inferred from the evidence that Clayton was shooting at Johnsonwith the specific intent to kill him. Attempted murder requires a specific intent to kill. (R. v. Ancio, (SCC), [1984] 1S.C.R. 225, page 14 (QL version)) [39] There is no direct evidence that Clayton intended to kill Johnson. He made no utterances to this effect.

I have combed through theevents from the time of the altercation in the Liquor Dome to the shooting on Carmichael Street to determine whether any part of thatevidence or the whole of it supports an inference that Clayton shot at Johnson intending to kill him. I find that Clayton’s decision to shootat Johnson was deliberate; that he could not have had a gun on him inside the Dome and must have fetched it after he, Blagdon, Johnson,and the other men were removed by the security staff.

It does not follow however that the only inference to be drawn from an intentionalshooting is that it was an attempt to kill. [40] What inferences can be drawn from the shooting on Carmichael Street? Clayton fired off three shots from the revolver in quicksuccession at Johnson. The first shot was taken as soon as Clayton rounded the corner from Argyle Street onto Carmichael. The next twoshots are evident from the video surveillance and the still photographs taken from that footage. (Exhibit 3, photographs 4 and 6) Thebright spots in the still photographs are, without a doubt, muzzle flashes.

When examined, the revolver seized by police from the Neonhad three spent cartridges in it and three unfired ones. (Exhibit 10, Report of Robin Theriault) The Crown’s firearm expert, RobinTheriault testified that the gun was capable of firing shots in quick succession. A .32 calibre Smith and Wesson, it functioned properly inits dual action mode and, by pulling the trigger each time, could fired successively.

The gun is capable of firing as many bullets as thereare cartridges in the cylinder. [41] I am satisfied that Johnson reacted as though he was being shot at: he can be seen in the video surveillance weaving and dodging upCarmichael Street as he runs away from Clayton. It is apparent from the evidence that there was no one else Clayton could have beenshooting at, other than Johnson. [42] It is a reasonable inference that a shot at close quarters directed to a vital area of the body is an attempt to kill. (R. v. Bains, [1985]O.J. No. 41 (C.A.), page 4; R. v. Rajanayagam, [2001] O.J.

No. 393 (S.C.J.), paragraph 17) Bains makes this point plainly: All firearms are designed to kill. A handgun is a particularly insidious and lethal weapon. It is easy to carry and conceal, yet at closerange, it is every bit as deadly as a .50 calibre machine gun. It follows that when, at close range, a handgun is pointed at a vital portion ofthe body of the victim and fired, then in the absence of any explanation the only rational inference that can be drawn is that the gun wasfired with the intention of killing the victim.

No other reasonable conclusion can be reached: a deadly weapon was used in the verymanner for which it was designed - to cause death… [43] However, as Rajanayagam notes: 18 It is impossible to draw a bright line in every case between gunshots that provide evidence of intent to kill and gunshots that do not.It is entirely a question of degree having regard to all the circumstances including the firearm, the range, the caliber, the load, theprojectile, the number of shots, the aim, and the vital or non-vital portion of the anatomy struck by the bullet. [44] The Crown argues that although none of Clayton’s shots hit Johnson, one of the bullets hit the windshield of a parked car.

But forJohnson’s weaving and dodging, the Crown says, that bullet would have hit Johnson in the torso, with potentially deadly consequences. [45] I am satisfied that the evidence proves conclusively that a bullet did strike the windshield of a car parked just beyond whereClayton was shooting at Johnson. The evidence led by the Crown about the damage leaves room for no other conclusion.

Photographstaken by police at the scene on March 24, 2012 offer very clear images of the damage sustained by a silver Pontiac Wave, parked onCarmichael just above Grafton Street. (Exhibit 4, photographs 6 – 8) Clayton and Blagdon have admitted the following facts: when theowner parked the car at this location on March 23 at 3:20 p.m., the windshield was undamaged; the car was not moved prior to theowner returning at 4 a.m. the following day; and when the owner returned to the car and noticed the damage he immediately informedpolice. [46] After a voir dire in which Mr. MacGuigan challenged Cst.

Emberlin’s qualifications, I qualified Cst. Emberlin, a forensicindentification officer, to provide opinion evidence in relation to the identification of bullet holes or damage caused by bullets. In Cst.Emberlin’s opinion, based on his examination of the photographic evidence, the nature of the damage to the Pontiac’s windshield

indicated it had been struck by a copper-tipped projectile, consistent with the bullets found chambered in the revolver seized when Clayton and Blagdon were arrested. [ 47 ] Cst. Emberlin described the properties of the damage that led him to form his opinion: a mark within the concentric circle of damaged windshield glass is rounded at one end and flattened at the other; the rounded portion of the mark points down toward the hood of the vehicle; and the striations in the mark are copper-coloured. Cst.

Emberlin testified that a bullet strike on a windshield causes a concentric crack because the windshield flexes inward. The mark inside the area of concentric damage has a rounded leading edge, indicating that as the hard object hit, it deformed, and scraped across the glass, creating the coppery striations. It was Cst. Emberlin’s opinion that the angle of the bullet was not sufficient to puncture the glass and that the bullet flattened out on impact, flexing the windshield, and ricocheting off. [ 48 ] Having examined the photographic evidence myself and considered Cst.

Emberlin’s opinion, I find that one of the bullets fired by Clayton at Johnson struck the windshield of the Pontiac and was deflected. Does that clinch the Crown’s case that this was an attempted murder? [ 49 ] The evidence establishes that Clayton was aiming at Johnson’s fleeing form. The still photographs of Clayton show him pointing the gun and it is clear from the images that he is not pointing it at the ground.

He has his arm raised and the muzzle of the gun pointed in Johnson’s direction. (Exhibit 3, photographs 2 and 3) The muzzle flashes also indicate that Clayton had the gun raised and pointed toward Johnson. ( Exhibit 3, photographs 4 and 6 ) [ 50 ] The Crown has argued that the bullet that struck the Wave’s windshield was Clayton’s second shot, aimed at Johnson’s torso as Johnson ran up Carmichael Street. In his submissions, Mr. Woodburn referred to the measurements taken by Cst.

Pat Tucker, a forensic identification officer ( Exhibit 11 ) which indicate there was approximately 20 feet between Clayton and Johnson when Clayton fired off the second shot – the first muzzle flash captured by the Carmichael Street surveillance camera. Mr. Woodburn, also relying on the bullet strike on the windshield, submitted that the position of the gun in Clayton’s outstretched hand, the angle of the shot, and its direction and height support the inference that Clayton was trying to shoot Johnson in the centre of his back as he was running away. This, says Mr.

Woodburn, is evidence of Clayton’s specific intent to kill Johnson. [ 51 ] In Mr. Woodburn’s submission, it is not reasonable to infer that Clayton may have wanted to do no more than scare Johnson. He had obviously achieved that objective as Johnson’s response to being followed by Clayton was to run away. [ 52 ] Mr. Woodburn made a compelling submission. While it is tempting to accept it, I find it is equally reasonable to infer from all the evidence that Clayton wanted to hit Johnson but had not formed the specific intent to kill him.

He was certainly engaged in highly dangerous, aggressively anti-social behaviour, chasing Johnson and taking shots at him as he ran away. While Clayton could have hit him and I think it is reasonable to infer that he would have been gratified if he had, I cannot rule out that he may have wanted to do no more than wound, maim, or disfigure Johnson, or endanger Johnson’s life.

He may have been satisfied to wing Johnson or bring him down with one of the shots but I am unable to find that the only reasonable inference is that he was trying to murder Johnson as he pulled the trigger on the revolver. [ 53 ] The situation of this shooting was more fluid and dynamic than the close-range shot to a vital part of the body. This makes it more difficult to find beyond a reasonable doubt that Clayton was intent on killing Johnson. It is equally plausible that he was trying to wound him without any intention of finishing him off.

I cannot say with confidence that Clayton was aiming at Johnson’s “centre mass” as the Crown submits, nor can I find beyond a reasonable doubt that the bullet that hit the windshield was accurately aimed, lined up with Johnson’s body. It may have been a wild shot. [ 54 ] Despite its worthy efforts, the Crown has not satisfied me to the high standard of proof beyond a reasonable doubt that Clayton shot at Johnson with the specific intent to kill him. I am therefore acquitting Clayton of Count 10, attempted murder.

Intentional Discharge of a Firearm While Being Reckless as to the Life and Safety of Johnson – Count 16 [ 55 ] Clayton has conceded his guilt of the offence of intentionally discharging a firearm while being reckless as to the life and safety of another person, contrary to

section 244.2 of the Criminal Code . Even if he had not done so, it will be obvious from what I have said so far in these reasons that I would have convicted him of this offence. [ 56 ] While it may seem as though the requisite intent for attempted murder and reckless endangerment charges are similar, this is not so. ( R. v. R.B.B., [1974] O.J. No. 709 (C.A.) , paragraph 7 ; R. v. Owens, [1969] B.C.J. No. 371 (C.A.) , paragraph 8 ) The requisite intent for conviction under

section 244.2 is not the intent to kill as is required for a conviction for attempted murder. It is the intent to endanger life, but not extinguish it. ( Owens, paragraph 8; R. v. Ross, [1975] M.J. No. 21 (C.A.) , paragraph 20 ) Use of a Firearm in a Careless Manner or Without Reasonable Precaution for the Safety of Other Persons – Count 12 [ 57 ] I am staying Clayton’s conviction on Count 12 so as not to offend the rule against multiple convictions for the same transaction, as I have already convicted him of the

section 244.2 offence. Remaining Firearms Offences as They Relate to Clayton [ 58 ] The Crown has satisfied me beyond a reasonable doubt that the .32 calibre revolver seized from the glove box of the Neon was used by Clayton to shoot at Johnson. I find that Clayton stashed the gun in the glove box when he returned to the car after the shooting. On this basis and the evidence I have already discussed in these reasons, I am convicting Clayton on the remaining charges – Counts 1 through 6, and Count 8, as follows: • Count 1 ( section 86(2) , Criminal Code ) – I am entering a conviction against Clayton for careless storage of the .32 calibre revolver,

without lawful excuse. The gun was seized by police, loose in the glove box of the Neon. • Count 2 (section 88(1), Criminal Code) – Applying Kienapple in light of the conviction on Count 16, the

section 244.2 charge, Iam staying Clayton’s conviction for unlawful possession of the .32 calibre revolver for a purpose dangerous to the public peace or for thepurpose of committing an offence. • Count 3 (section 90, Criminal Code) – I am entering a conviction against Clayton for carrying a concealed weapon, that is, the .32calibre revolver, when he was not authorized by the Firearms Act to do so. I note that the video surveillance evidence shows Claytonfollowing Johnson and Martin down Argyle Street with his hands clasped close to his body.

At this time and later on Grafton Street afterthe shooting, Clayton had the revolver on him and was concealing it. • Count 4 (section 92(1), Criminal Code) – I am convicting Clayton of possessing the .32 calibre revolver knowing that he was notthe holder of a license, or the holder of a registration certificate for the firearm. • Count 5 (section 94(1)), Criminal Code) – I am convicting Clayton of being the occupant of a motor vehicle, the 2003 DodgeNeon, in which he knew there was a firearm, that is, the .32 calibre revolver. • Count 6 (section 95(1)(a), Criminal Code) – Applying Kienapple in light of the conviction on Count 4, I am staying Clayton’sconviction for possessing a loaded, prohibited weapon, that is, the .32 calibre revolver together with readily accessible ammunitioncapable of being discharged in the same firearm and not being the holder of an authorization or license for that firearm.

I will note thatthis charge should have been amended to remove the reference to readily accessible ammunition: the evidence establishes that therevolver, a prohibited weapon, had three loaded chambers but no other ammunition was seized. • Count 8 (section 108(1)(b), Criminal Code) – I am acquitting Clayton of possessing, without lawful excuse, a firearm, that is, the.32 calibre revolver, knowing that the serial number on it had been removed. Although according to Mr.

Theriault the revolver had hadits serial number “obliterated by some mechanical means such as grinding.” (Report of Robin Theriault, Exhibit 10), there is no evidencebefore me that Clayton knew this. I strongly suspect he did, but the standard of proof beyond a reasonable doubt has not been met. Iwould be speculating to say the removal of the serial number would have been obvious to Clayton. [59] To summarize, Kojo Clayton is guilty of Counts 1, 3, 4, 5, 8 and 16.

Blagdon and the Issues of Knowledge and Control [60] I will now return to the issue of Blagdon and whether the Crown has proven beyond a reasonable doubt that he had possession ofthe revolver seized by police from the glove box of the Neon. [61] Possession is defined in section 4(3)(

a) and (

b) of the Criminal Code as follows: (

a) a person has anything in possession when he had 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 anotherperson; 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. [62] Knowledge and control are the critical features of possession. (R. v. Anderson-Wilson, 2010 ONSC 489 , [2010] O.J. No.377 (S.C.J.), paragraph 68) Possession can be established through circumstantial evidence where there is no direct evidence to prove it.(Anderson-Wilson, paragraph 71) There is no direct evidence that Blagdon knew the .32 calibre revolver was in the glove box. Inaddition, Mr.

Newton submitted that Blagdon, as the passenger in the Neon, had no control over the contents of the glove box. [63] In assessing the Crown’s case against Blagdon, I am going to examine four time frames: (1) when Clayton leaves Argyle Streetbriefly, apparently with Blagdon; (2) when Clayton is on Carmichael Street, shooting at Johnson; (3) when Blagdon and Clayton reuniteupon returning to the parked Neon; and (4) when they are arrested. Can I infer from any of these events or from the whole of theevidence, that as a passenger in the Neon, Blagdon knew there was a .32 calibre revolver in the glove box?

Blagdon and Clayton Walk South on Argyle Street and Return [64] I described this evidence earlier in these reasons. I don’t know where Blagdon was or what he may have been doing during the timehe and Clayton were out of the view of the Argyle Street surveillance cameras. When they return, walking north on Argyle in thedirection of Johnson and Martin, Clayton appears purposeful. Blagdon’s pace is more leisurely. I cannot infer from this that Blagdonknew that Clayton had been stashing a gun in the glove box of the Neon and now had it concealed in his hoodie.

Blagdon on Argyle and the Shooting on Carmichael Street [65] Although the video surveillance has no audio to assist in telling me when Clayton fired off the first shot on Carmichael Street, thecamera footage on Argyle Street provides a window into what was happening on Carmichael. It is to be remembered that witnesses in the

vicinity could hear the shots being fired. [66] At 2:45:03 on DVR 3, Camera 6, Martin can be seen running very fast, south on Argyle and then into Parade Square, right acrossfrom the Dome. It takes him 3 seconds to get to Parade Square. (Exhibit 1, DVR 3, Camera 6, 2:45:06) There can be only oneexplanation for Martin’s flight. He has heard or seen the first shot on Carmichael where he was seconds before with Johnson. We knowJohnson ran up Carmichael with Clayton pursuing him.

Martin ran back to Argyle and through Parade Square. [67] Martin’s sprinting from the scene is significant because the same surveillance camera captured Blagdon, who had been walkingbehind Clayton toward Carmichael. Blagdon never makes the turn onto Carmichael. The same camera that “saw” Martin running, DVR3, Camera 6, captures Blagdon at 2:45:15, walking south on Argyle, steadily but not hurriedly. This is 12 seconds after Martin fled fromCarmichael Street. I do not accept that Blagdon made a random decision to abruptly change direction.

Blagdon had to have heard theshot, maybe shots, and turned away from the direction of Carmichael. I find there is only one reasonable inference to be drawn from hiscalm demeanor and pace: Blagdon knew that Clayton wasn’t the one being shot at. He knew Clayton and Johnson were on Carmichael:they had turned the corner ahead of him. It is a common sense inference that Blagdon’s demeanor would have been very different if hehad thought that Johnson was armed and shooting at his friend.

He may have kept heading away but, just as Martin wasted no timegetting clear of the gunfire, Blagdon would not have just strolled away if he thought that Johnson had the gun. [68] Mr. Newton has suggested that other people in the vicinity were equally unflustered about the gunfire. Both the video evidenceand the testimony of Adam Morley, the head of security, indicate that the shots alarmed most of the people around Blagdon. It wasMorley’s evidence that there were 40 – 60 people on Argyle Street when the shots went off. In his words: “Some ran, some ducked,some tried to get into the door [of the bar].

A lot of people were looking around – heads on a swivel.” I find Blagdon’s demeanor was amarked contrast to that of the bar-goers near him. [69] Furthermore, anyone would know that once shots are fired, the police are going to arrive in force. Walking calmly away fromgunfire is going to be less likely to attract attention.

Once the shots were fired Blagdon promptly left the area and as we know, shortlyafterwards met up with Clayton near the parked Neon. [70] The only reasonable inference to be drawn from Blagdon’s unruffled demeanor was that he knew Clayton had a gun, at least by thetime the shots were fired, and that the prudent course of action was to get away from the area unobtrusively.

Blagdon and Clayton Return to the Neon [71] Chad Cox followed Clayton on Grafton Street after the shooting (which he didn’t witness.) Cox kept a safe distance and observedClayton meet up with Blagdon “somewhere around Prince [Street] and Grafton.” The last Cox had seen of Blagdon he was walkingacross Argyle Street, heading south. [72] Cox testified Clayton and Blagdon were about 30 feet from the Neon and he was approximately 50 feet further back.

Coxestimated that Clayton and Blagdon were within three feet of each other when they met up and walked about 20 feet together to the car.It had not looked to Cox as though they had planned to meet up, although they seemed to be headed in the same direction. [73] Cox cannot recall who got into the car first but allowed on cross-examination that it was possible Clayton did. He watched theNeon turn up Prince Street toward Citadel Hill.

It was Cox who got the license plate number which was then passed on to the police. [74] I will note at this point in my reasons that Blagdon and Clayton have admitted that the Dodge Neon they were in that nightbelonged to Blagdon’s grandmother. The Arrests of Clayton and Blagdon [75] I heard quite a bit of evidence about the arrest. Police had followed the Neon as it headed north on Gottingen Street and thentravelled the wrong way along Charles and then Creighton Streets, both one way streets.

Clayton and Blagdon were arrested onCreighton Street after police pulled them over. [76] I do not intend to sort through the police testimony concerning observations made about movement in the Neon while it was beingfollowed, and the absence of any record of those observations in police notes. That is because even if Blagdon, the passenger in theNeon, was moving around, there can be more than one explanation for such behaviour. The Crown wants me to infer that Blagdon’smovements were related to hiding the gun.

It seems to be that the amount of motion, “rocking back and forth” in the words of one officer,would not be required to stash a gun in a glove box. And furthermore, if the officers’ recollections are accurate, Blagdon’s agitationcould have been as a result of nervousness. Nervousness as a response to being tailed by the police is a common reaction. (R. v.Iturriaga, (BC CA), [1993] B.C.J. No. 2901 (C.A.), paragraph 9) [77] I do not find there was anything exceptional about Blagdon’s arrest in the circumstances. I have not found this evidence assists mein determining the state of Blagdon’s knowledge about the gun.

I accept the evidence that he stepped out of the Neon at gunpoint but wascompliant. Although it was Cst. Justin Murphy’s recollection that he had to extract Blagdon from the car with force, this is not reflectedanywhere in his notes or his can-say statement. He testified that his supplementary report indicates pistols were drawn, verbal commandswere given to Clayton and Blagdon, and that they were removed from the vehicle and taken into custody “without incident.” [78] After Blagdon was out of the car, the revolver was located in the unlocked glove box. It had shells in all six chambers.

Three werespent, having been fired and there were three live shells. The Circumstantial Evidence and the Issue of Blagdon’s Knowledge [79] I have reviewed the circumstantial evidence relevant to Blagdon and the issue of whether he knew, when the police pulled the

Neon over, that there was a gun in the glove box. Blagdon’s knowledge has to be proven beyond a reasonable doubt, and as this is a caseof circumstantial evidence, guilt has to be the sole rational inference to be drawn from the evidence. (R. v. Griffen, 2009 SCC 28, [2009] S.C.J.

No. 28, paragraph 34) To convict Blagdon I have to be satisfied beyond a reasonable doubt that the only rationalinference to be drawn from the circumstantial evidence is that Blagdon knew there was a gun in the car and had some measure of controlor authority over it. [80] As I indicated earlier in these reasons, I am satisfied beyond a reasonable doubt that when Clayton started shooting at Johnson onCarmichael Street, Blagdon, like others in the vicinity, heard the shots. He immediately turned and headed south on Argyle Street, aroute that took him back toward the Neon.

Cox sees him meet up with Clayton on Grafton Street and they continue together to the car. [81] What I know is that not long after this, the police pulled the Neon over and found the revolver in the glove box. I am unable toidentify a reasonable scenario to explain how Blagdon could not have known there was a gun in that car. Even if Clayton, whom I knowwas the driver, had got into the Neon first, it defies common sense to think that he could have stashed the gun without Blagdon noticing.It makes no more sense to think that Clayton would have hidden the gun from Blagdon.

It is obvious they were friends and had comeand gone from various places together that night. Blagdon had to have heard the gunshots. It is not rational to conclude on the evidencethat Blagdon arrived back at the Neon completely oblivious to the fact that Clayton had been involved in an incident on CarmichaelStreet. It is not rational to infer that Clayton would have said nothing to him about what had just happened. Up to the point of the shotsbeing fired, Blagdon and Clayton had experienced the evening’s events together, in concert, at the Dome, and leaving and returning toArgyle Street.

It is fanciful to imagine that when Blagdon reunites with Clayton on Grafton Street, they walk to the car and get inwithout any comment or question about the dramatic moments that just passed – gunshots in the busy bar district of downtown Halifax. [82] While I believe Blagdon knew Clayton had been the cause of the gunshots on Carmichael Street, I am satisfied beyond areasonable doubt that, at the very least, when Blagdon got into the Neon, he knew there was a gun on board. The proven facts in this casesupport no other reasonable inference. (R. v.

Cooper, (SCC), [1978] 1 S.C.R. 860) There are no competing inferences tobe made. [83] It is not reasonable to infer that Clayton, who still had the gun on him when he arrived at the Neon with Blagdon, could have gotinto the car and stashed the gun in the glove box without Blagdon being aware. In Mr. Newton’s submission, if Clayton got into the carfirst – which Chad Cox agreed on cross-examination was “possible” –there is a reasonable doubt about Blagdon’s knowledge. Mr.Newton points to there being no evidence about the lighting where the Neon was parked.

But even if Blagdon was outside the car for amoment after Clayton got in, it is not reasonable to infer that the gun vanished into the glove box without him knowing. Even the act ofClayton reaching over to the passenger side to open the glove box, toss the gun inside, and close the compartment up would have takensome seconds. There is no evidence that Blagdon was kept waiting outside the car while Clayton fiddled about with the glovecompartment and the gun. [84] This is not a case like R. v. Amado, [1996] B.C.J.

No. 1943 (S.C.) where the car was a rental, no evidence was offered to indicatehow the guns got into the car, and there was nothing to tie the guns to any occupant of the car. And there is no evidence here, as therewas in R. v. Lee, [1996] B.C.J. No. 1196 (C.A.), that someone else may have put the gun in the glove box. And the gun was not neatlytucked away, suggesting it had been stored with care; it was loose in the glove box right in front of where Blagdon sat in the passengerseat of the Neon. [85] I am also satisfied beyond a reasonable doubt that Blagdon could have exercised control in relation to the gun.

It was hisgrandmother’s car. Blagdon could have simply said to Clayton, “We are not driving in my grandmother’s car with a gun. Get rid of itnow.” Instead he consented to setting off with Clayton, the gun resting directly in front of him in the glove box. Verdicts Against Blagdon [86] I find that Blagdon had joint possession of the revolver with Clayton and convict him as follows: • Count 1 (section 86(2), Criminal Code) – I am entering a conviction against Blagdon for careless storage of the .32 calibrerevolver, without lawful excuse.

As I said earlier, Blagdon had the ability to exercise some control over the gun and shares responsibilitywith Clayton as a joint possessor for its careless storage. • Count 4 (section 92(1), Criminal Code) – I am convicting Blagdon of possessing the .32 calibre revolver knowing that he was notthe holder of a license, or the holder of a registration certificate for the firearm. • Count 5 (section 94(1)), Criminal Code) – I am convicting Blagdon of being the occupant of a motor vehicle, the 2003 DodgeNeon, in which he knew there was a firearm, that is, the .32 calibre revolver. (R. v.

Phillips, (ON SC), [2009] O.J. No.400 (S.C.J.), paragraph 91) [87] I am acquitting Blagdon of the following charges: • Count 2 (section 88(1), Criminal Code) –I am acquitting Blagdon of unlawful possession of the .32 calibre revolver for a purposedangerous to the public peace or for the purpose of committing an offence.

His possession of the revolver cannot be connected to theshooting at Johnson. • Count 6 (section 95(1)(a), Criminal Code) – I am acquitting Blagdon of possessing a loaded, prohibited weapon, that is, the .32calibre revolver together with readily accessible ammunition capable of being discharged in the same firearm and not being the holder ofan authorization or license for that firearm. There is no evidence that Blagdon knew the gun was loaded. It is likely he did: there wereonly three shots after all, but I am unable to find beyond a reasonable doubt that he knew there was ammunition in the gun.

And as Inoted earlier in these reasons, there was no “readily accessible ammunition” found. • Count 8 (section 108(1)(b), Criminal Code) – I am acquitting Blagdon of possessing, without lawful excuse, a firearm, that is, the.32 calibre revolver, knowing that the serial number on it had been removed. The Crown has not proven beyond a reasonable doubt that

Blagdon knew the serial number had been ground off. There is no evidence, circumstantial or otherwise, that he knew anything about the gun at all, other than it was in the glove box. [ 88 ] In light of Blagdon’s conviction under Count 5, and applying Kienapple , I am staying Count 3 (

section 90, Criminal Code ) the charge that Blagdon was carrying a concealed weapon. This charge could only apply to Blagdon on the facts that the gun was concealed in the glove box of the car. It is appropriate to honour the rule against multiple convictions for the same transaction by staying this charge. [ 89 ] In

summary, I am convicting Blagdon of Counts 1, 4 and 5. Conclusion [ 90 ] My reasons provide sufficient detail about the charges on which I have entered acquittals, convictions, and stays, that I will conclude by reiterating only that I have convicted both Mr. Blagdon and Mr. Clayton of Counts 1, 4 and 5. Mr. Clayton alone is convicted on Counts 3, 8, and 16.