R. v. Smith, 2022 NSPC 61

PROVINCIAL COURT OF NOVA SCOTIA Citation: R. v. Smith , 2022 NSPC 61 Date: 20221116 Docket: 8460976, 8460977, 8460978, 8460979, 8460980, 8460981, 8460982, 8460983, 8460984 Registry: Dartmouth Between: His Majesty the King v. Araya Smith Judge: The Honourable Judge Theodore Tax, Heard: June 1, 2022, June 7, 2022, June 14, 2022, June 15, 2022, in Dartmouth, Nova Scotia Decision November 16, 2022 Charge:

Section 221 , 87(1) , 95(1) , 92(1) , 91(1) , 90(1) , 88(1) , 86(1) , 86(2) of the Criminal Code of Canada Counsel: Robert Fetterly, Q.C., for the Nova Scotia Public Prosecution Service Nicholas Fitch, for the Defence Counsel By the Court: [ 1 ] Mr. Araya Smith faces a total of nine firearms charges. The first alleging that he was criminally negligent in having shot a firearm and causing bodily harm to Cameron Brown contrary to

section 221 of the Criminal Code .

He is also charged with unlawful pointing of a handgun at Cameron Brown, contrary to section 87(1) Code , possessing a loaded restricted or prohibited firearm without being the holder of an authorization or license to possess the firearm in that place, contrary to section 95(1) Code , possessing a firearm knowing that he was not the holder of a license to possess it or a registration certificate for a prohibited or restricted firearm contrary to section 92(1) Code , possession of a firearm without being the holder of a license to possess it or a registration certificate in the case of a prohibited or restricted firearm contrary to section 91(1) Code , carrying a concealed weapon, a handgun, contrary to section 90(1) Code, having a weapon for purpose dangerous to the public peace or for the purpose of committing offence contrary to section 88(1) Code , use of a firearm in a careless manner or without reasonable precaution for the safety of other persons contrary to section 86(1) Code and finally, that he did store, handle or transport a firearm, contrary to the Storage, Display, Transportation and Handling of Firearms by Individuals Regulations , thereby contravening the regulation made under para. 117 (

h) of the Firearms Act , contrary to section 86(2) Code. Introduction: [ 2 ] The nine firearms offences were alleged to occurred on or about August 13, 2020, at or near Dartmouth, Nova Scotia. The Crown proceeded by way of indictment, with Mr. Smith making his first appearance in court on August 19, 2020. Following a change in defence counsel, Mr. Smith elected to have his trial in the Provincial Court and entered not guilty pleas on May 26, 2021. At that time, the trial was originally scheduled to be heard on February 22. 23 rd and 24 th 2022.

The Court also scheduled a status date for those trial date on June 28, 2021. [ 3 ] On the June 28, 2021, status date for those trial dates, the trial of this matter was transferred to Dartmouth Courtroom #5 and three new days for trial had to be secured. The three-day trial was then set for May 17, 18 and June 7, 2022, with a pre-trial conference to be held on September 21, 2021.

At the pre-trial conference, the May dates were released, and the case was then scheduled for a four day trial on June 7, 8,14 and 15, 2022. [ 4 ] During the further pre-trial conference, Defence Counsel indicated that he would be filing a Charter application that Mr. Smith’s

section 10(

b) Charter right had been breached by the police which directly impacted his right to counsel. The Defence sought the exclusion of the statements or comments made by Mr. Smith during an audiovisual interview with Det/Const. Veinotte on August 15, 2020. Dates were set for the filing of Charter briefs by the Defence in late October 2021 and the Crown response by mid-November 2021. A further status date was set for the Charter application and the trial itself on January 5, 2022. [ 5 ] The Defence Charter Brief had been received by the Court and the Crown Attorney on January 3, 2022.

As a result, during the January 5, 2022, status date, it was agreed that the Crown Attorney would file his Respondent’s Factum to the Charter application

by February 4, 2022. In addition, on January 5, 2022, the Court re-confirmed that the trial dates would be on June 7, 8, 14 and 15, 2022. [6] Prior to the first day for trial, the Court was advised that the Chief Firearms officer for Nova Scotia would not be available onany of those trial dates. As a result, the Court was able to

schedule an additional day for the hearing of the trial evidence of Mr. JohnParkin on June 1, 2022. [7] At the same time, on June 1, 2022, the Court entered into a voir dire with respect to the Defence

section 10(

b) Charterapplication to exclude the statement of Mr. Araya Smith. The only witness called on the Charter voir dire was Det/Cst. MatthewVeinotte of the Halifax Regional Police. With respect to the Charter voir dire, the Parties agreed that there was no need to hold acommon-law voluntariness voir dire. The issue with respect to the Charter application was whether Mr.

Smith, having been informed ofhis right to retain and instruct counsel without delay, actually understood that information and then made an informed decision to speakwith the police officer. [8] At the outset of the voir dire on June 1, 2022, Defence Counsel agreed that if the Court was to rule that there had been nobreach of Mr. Smith’s

section 10(

b) Charter right and that the statement was admissible evidence, there would be no need to recall anyevidence heard on the voir dire. The Crown filed two exhibits on the voir dire, one being a CD of the audiovisual statement of Mr.Araya Smith taken on August 15, 2020, and the second being a certified copy of a 48-page transcript of that audiovisual recording as anaide memoire, which had been prepared by a certified court transcriber. [9] The only witness called on the Charter voir dire on June 1, 2022, was Det/Cst. Matthew Veinotte.

Following his direct andcross-examination, the parties supplemented their written submissions with brief oral submissions. Having found the earlier date for thehearing of the Charter voir dire and the evidence of Mr. Parkin, the Court adjourned its decision until June 7, 2022, which was the nextday scheduled for trial. [10] After reviewing the totality of the facts and circumstances of the interview, and referring to R. v. Evans, (SCC), [1991] 1 SCR 869 and R. v. Sinclair, 2010 SCC 35 that Mr.

Araya Smith had an “operating mind,” had the requisite informationto make a choice whether he would speak to a police officer or not. The officer had not undermined his ability to make that choice, theinterview was conducted in a clear manner and Mr. Smith was certainly aware that he was speaking with the police officer and thatanything he said would be noted and in fact, recorded and potentially used as evidence later in court. [11] In the final analysis, on June 7, 2022, the Court determined that there was no breach of Mr. Smith’s

section 10(

b) Charterrights. [12] The trial evidence of the other witnesses who were called by the Crown was heard on June 7 and 14, 2022. At the conclusionof the Crown Attorney’s case where he tendered his exhibits and closed his case, he advised the Court that he was not tendering theaudiovisual statement of Mr. Araya Smith taken on August 15, 2020 as part of the Crown’s case, but rather, would be holding thatstatement back for purpose of cross-examination if Mr.

Smith chose to testify during the trial. [13] Following that statement by the Crown Attorney, Defence Counsel indicated that he would not be calling any Defenceevidence. [14] It was initially considered that the next day, June 15, 2022 might be utilized for the counsel to make oral submissions on thetrial evidence. Instead, after consultation with the Court, the parties agreed to provide written submissions and thereafter, the court wouldprovide a date for the decision. The Crown Attorney filed his written submissions on June 24, 2022, and Defence Counsel provided hiswritten submissions on behalf of Mr.

Smith on July 18, 2022. On a hearing to set a decision date on July 26, 2022, the Court’s decisionwas reserved until today’s date. Positions of the Parties: [15] As a result of admissions made under

section 655 of the Criminal Code and entered as an Exhibit in the trial, several of theessential elements of the various offences before the court are not in dispute between the parties. The date, time and location of thefirearms incident are acknowledged as proven.

The parties have acknowledged that in the Dartmouth, Nova Scotia hotel room where Mr.Cameron Brown was located on the evening of August 13, 2020, he was shot in the left scapula [shoulder blade] with a bullet dischargedfrom a handgun which the parties acknowledge has not been located. [16] There is no dispute between the parties that the evidence established that Mr.

Brown was admitted to the Dartmouth GeneralHospital on August 13, 2020 [I note here for the record that Exhibit 10 which is the Agreed Admissions, inadvertently contains atypographical error, as the document states that the hospital admission was on April 13, 2020]. The parties have agreed that, at thehospital, a radiological examination confirmed that Mr. Brown had a fracture of his spine at the C5 and C6 secondary to a gunshotwound at his left scapula which was a penetrating wound. The injuries and residual limitations suffered by Mr.

Brown as a result of thegunshot and penetrating wound are agreed by the parties to meet the definition of “bodily harm” as defined in the Criminal Code. [17] Notwithstanding the fact that the handgun involved in the incident has not been located, from the nature of the injuries, theparties agree that the handgun was a “firearm” as defined by the Criminal Code.

Furthermore, from the description of the firearmprovided by the witnesses, there is no dispute between the parties that firearm would also meet the definition of a “restricted orprohibited firearm” in section 84(1) of the Criminal Code. [18] Finally, there is no dispute between the parties that, at the time of the incident in question, Mr. Araya Smith was a friend ofCameron Brown and Ethan Tibbo, and as such, no witness was required to make any in dock identification of Mr.

Araya Smith. [19] The parties have acknowledged that all other elements of the charges before the court are in issue, but in reality, the main issuewith respect to each of the nine offences before the court is whether the Crown has established, beyond a reasonable doubt, that Mr.Araya Smith was, in fact, the person who took the various actions alleged in the Information, namely, the person who fired the handgun,used or handled the handgun, pointed the handgun, possessed the handgun and handled, stored or transported the handgun.

[ 20 ] It is the position of the Crown that the evidence of the Chief Provincial Firearms Officer established that Mr. Araya Smith did not possess a firearms licence or a restricted firearms license or permit for any specific restricted firearm and was therefore not permitted to possess or own restricted firearm. Mr. Parkin’s evidence established the key essential elements of several of the firearm’s charges, assuming that the identity of Mr. Smith as the person who, used, pointed, carried, etc. the firearm was established beyond a reasonable doubt. [ 21 ] He submits that, with respect to the pointing offence contrary to

section 87 of the Code , the Information was not amended to indicate that the firearm was pointed at anyone in particular, however, the court could find that the firearm was pointed at Mr. Tibbo and in combination with the trigger pull while pointed, that would establish “careless use” which would not be “Kienappled” with the criminal negligence charge.

However, if the court was to conclude that the only person at which the handgun was pointed was Cameron Brown, then count 2 [pointing at Cameron Brown] would be “Kienappled” with count 8 [careless use]. “Careless handling” pursuant to section 86(2) Code [count 9] involves a different regulatory breach and therefore, would not be “Kienappled” with “careless use.” [ 22 ] The Crown Attorney submits that there are different levels of mens rea and that the actus reus of each offence is quite different.

An offence like pointing a firearm, contrary to section 87(1) Code , is one of general intent, not requiring the firearm to be loaded, restricted or prohibited, but must be intentionally pointed at another person. The mens rea required is either knowledge or wilful blindness when speaking to the intent, in the sense that the pointing was an action of choice rather than by accident. [ 23 ] As for the unlicensed possession charges contrary

section 91, 92 and 95 of the Code , they all require the Crown to prove that the accused did not have a license to possess the firearm or restricted or prohibited firearm and the Crown submits that that was established by the affidavit evidence of Mr. Parkin and his testimony. The Crown Attorney submits that they are not required to establish that the accused person knew that the handgun was actually restricted or prohibited, simply, that the accused knew it was a firearm, since all handguns are prohibited or restricted firearms, as established by the evidence of Mr. Parkin. [ 24 ] Furthermore, it is the position of the Crown that, given the similarity of the essential elements of the

section 91 and

section 95 Code offences, those offences may be established by the accused person having possessed a loaded restricted or prohibited firearm, without requiring any knowledge that it was loaded or being wilfully blind to that fact, but by simply being in possession of it at any time prior to the firing, which also established that it was a working firearm. [ 25 ] With respect to count 4, which is a charge contrary to section 92(1) Code, that the accused possessed a firearm “knowing” that he was not the holder of a license under which he may possess it or in the case of a prohibited or restricted firearm without being the holder of registration certificate for the firearm, the Crown Attorney concedes that, in the circumstances of this case, that requires more than a person being “presumed to know that the law requires licensing.” As such, the Crown concedes that they have not been able to establish that additional level of knowledge as an essential element of the section 92(1) Code offence. [ 26 ] Finally, with respect to the criminal negligence causing bodily harm offence contrary to

section 221 Code , the Crown Attorney submits that, based upon the description of criminal negligence in

section 219 of the Code as interpreted by the Supreme Court of Canada and our Court of Appeal, the Crown must establish, beyond a reasonable doubt, the actus reus as : (1) the act or an omission to do something that is the accused’s duty to do; (2) the act or omission demonstrated a wanton or reckless disregard for the lives or safety of other persons and (3) the act or omission caused bodily harm.

Parliament has also defined “ duty ” for the purpose of that provision in section 219 (2) Code as being “a duty imposed by law.” [ 27 ] The Crown Attorney submits that in terms of the actus reus , they have established beyond a reasonable doubt that the acts or omissions of Mr. Araya Smith showed a wanton or reckless disregard for the life or safety of Cameron Brown and that his acts and omissions on that standard caused bodily harm. Furthermore, in terms of the mens rea for that offence, it is the position of the Crown that Mr.

Smith’s actions represented a marked and substantial departure from the standard of care of a reasonably prudent trained and licensed restricted firearms handler in the accused’s circumstances, including what they knew or ought to have known. [ 28 ] In particular with respect to the actus reus , the Crown Attorney submits that in addition to not being licensed to carry the firearm, Mr.

Smith did not check to see if the firearm was unloaded, or safe to handle, omitted to store the handgun safely in an approved container, brought the firearm to a hotel room, producing it for others to touch, handle and even point that other people, engaging in horseplay with the gun by pulling the trigger and ultimately pulling the trigger when it was pointed and discharged a bullet which hit Mr.

Brown. [ 29 ] It is the position of the Crown that all of those factors and several others established by the evidence constituted a marked and substantial departure from the duty of care of reasonably prudent licensed and trained firearm owner would follow. The criminal negligence of Mr. Smith was not a momentary lapse in judgement but a course of conduct in bringing the gun in his possession into a small room in the presence of several other people and then acting in the manner which he did, demonstrated a wanton and reckless disregard for the safety and lives of those other persons.

The Crown Attorney submits that Mr. Smith should be convicted of all charges, but also submitting that a few of the charges may be subject to the “Kienapple” principle. [ 30 ] For his part, Defence Counsel agrees with the Crown Attorney that the key issue in dispute are whether the identification of the person who possessed, used, pointed and ultimately fired a handgun has been established beyond a reasonable doubt.

Secondly, he takes issue with the Crown as to whether the requisite standard for the offence of criminal negligence causing bodily harm has been established beyond a reasonable doubt. [ 31 ] It is the position of the defence that the evidence of Cameron Brown who acknowledged being drunk and under the influence of controlled substances and marijuana at the time of the incident impacted his testimony which was neither credible nor reliable.

All of the witnesses who testified during the trial were either in a location or looking in a direction where they had no idea who had the gun when it was fired and a bullet struck Mr. Brown. Once Mr. Brown was shot and wounded, people either quickly moved over to help him or immediately left the hotel room.

In addition, no one saw the gun after it was fired, and the handgun has never been located. [ 32 ] In those circumstances, it is the position of the defence that all of the civilian witnesses called by the Crown could be considered as differing degrees of an “unsavoury” witness, whose evidence was not credible or reliable and their evidence should be

considered with the special caution provided by the Supreme Court of Canada in R. v. Vetrovec, (SCC), [1982] 1 SCR811. The one exception to that caution might be Ms. Teirah Slawter but certainly the Court should regard Cameron Brown as an“unsavoury witness” as well as Ethan Tibbo and Antwoine Clarke. Mr. Smith elected not to call evidence and there was one other youngman in the room, with the given name Traydell, but he was not called by the Crown as a witness. [33] Prior to being shot, Mr.

Brown had consumed copious amounts of alcohol cocaine and cannabis, he had not made anystatement or cooperated with the police at the time of the incident which might be used to refresh his memory and his recollection ofhaving seen Mr. Smith with the gun a few days before which was not corroborated by any other witness. Mr. Brown claims to have seenthe gun in the car when he was not in a position to do so. Neither Mr. Tibbo nor Mr. Clarke stated that they saw the gun in the car asthey drove to the hotel that evening and Ms. Slawter does not believe she was in the car on the way to hotel.

Traydell was not called as awitness by the Crown, despite others stating that he was seated in the backseat near Mr. Smith as they drove to the hotel. [34] In terms of a message that Mr. Cameron Brown stated that he had received over two years ago from Mr. Smith, which Mr.Brown alleged was an apology to him, Mr. Brown could only provide a very vague description of the message, and it was certainly not aspecific apology for shooting him. Moreover, Mr. Brown never produced that message in court to support his speculated

interpretation ofthe words allegedly stated in it by Mr. Smith. [35] Defence Counsel submits that there may be many possible

interpretations for the words used and caution should be exercised inthese circumstances where the note and the exact words are not available to be reviewed in detail and potentially interpreted. He submitsthat the court should bear in mind the Supreme Court of Canada comments in R. v.

Villaroman, 2016 SCC 33 , [2016] 1 SCR1000, that a certain gap in the evidence may result in inferences other than guilt, but those inferences must be reasonable given theevidence and the absence of evidence, when assessed logically and in the light of human experience and common sense. [36] Moreover, it is the position of the defence that there is no statement from the accused before the court in evidence. Villaromansets out the standard required for proof beyond a reasonable doubt in circumstantial cases. It is a standard well known to the court thatguilt must be the only reasonable inference.

In this regard, Defence Counsel submits that there is an alternative reasonable inference thatthe Crown Attorney has not addressed in his submissions nor in the evidence. The Crown did not call Traydell Brown, yet all of thewitnesses who did testify place him as being near the gun and behind Mr. Cameron Brown just prior to the shot being fired.

Thewitnesses indicated that Traydell immediately fled from the scene and it is the position of the defence that this evidence leaves the courtwith a reasonable alternative inference - that is, that the shooter was Traydell. [37] In fact, Defence Counsel points out that the Crown Attorney, at para. 10 of his closing submissions after reviewing all of thetestimony in relation to the positioning of the people who said they did not fire the gun, then based on their positioning and theirevidence as to who last had the gun, the Crown Attorney submitted that “the shooter has to be one of two persons, Araya Smith orTraydell Brown.” [38] Defence Counsel submits that the Crown’s reliance on some video images that show Mr.

Smith may have had something in hiswaistband when he left the hotel is speculation at best. In addition, those same video images show Traydell leaving the hotel with a bagafter the shooting. The contents of the bag are unknown as are the object or objects potentially in the waistband of Mr. Smith as he exitedfrom the hotel and as such, any inference from that is highly speculative and not of material weight. With respect to almost all of thefirearms charges, it is the position of the defence that the Crown has not established beyond a reasonable doubt that Mr.

Smith has beenidentified as the shooter and he should be acquitted on all of the charges before the court. [39] In the case of the one charge where Mr. Brown claims to have seen Mr. Smith taking bullets out of the handgun, given the factthat Mr. Brown was an unsavoury witness and his evidence was not corroborated by any other witness, it should not be accepted by thecourt and Mr. Smith should also be acquitted of that charge. [40] Defence Counsel also submits that if the Court was to find that Mr.

Smith was identified as the shooter, then, the Crown hasnot established beyond a reasonable doubt the modified objective standard of criminal negligence. Multiple witnesses described the gunas being in poor condition and expressed surprise that it worked at all. There were statements with respect to the fact that the trigger hadbeen pulled several times but no bullets fired and, in those circumstances, it would be reasonable to assume that the gun was inoperablerather than unloaded. [41] In those circumstances, Defence Counsel submits that the Crown has not established the actus reus, that is,

an act or omissionwhich demonstrated a wanton or reckless disregard or safety of other persons nor the mens rea for the offence that required the Crown toestablish that the accused’s conduct was a marked and substantial departure from the requisite standard of care that a reasonably prudentperson would observe in similar circumstances. Trial Evidence: [42] The Crown called the Chief Firearms Officer for Nova Scotia, Mr.

John William Parkin as a witness, not to be qualified as anexpert witness, but rather to speak to his role as the Chief Firearms Officer, his responsibility to administer the Firearms Act for theprovince and the federal government and provide information with respect to any authorizations a person may have under that Act. [43] Mr. Parkin also provided evidence with respect to his responsibility for the delivery of suitable training for persons that isrequired for them to apply to obtain the relevant licenses and for overseeing the training and licensing requirements for the safe handlingof firearms.

In discussing that role, he identified two RCMP manuals which are in current use in Nova Scotia for training in the InitialFirearms Safety Course [Exhibit 3] and the one required for the more advanced restricted or prohibited firearms safety course [Exhibit 4]And speak to training and licensing requirements for safe handling of firearms. [44] In addition, Mr. Parkin also prepared a Canada Firearms Program Affidavit dated February 17, 2022, which was filed asExhibit 1 in the trial. The affidavit established that Mr.

Parkin, as Chief Firearms Officer in the province of Nova Scotia, and designatedas such under the Firearms Act, S.C. 1995, C-39, has access to the records on the Canadian Firearms Information System establishedunder

section 87 of the Firearms Act. The affidavit confirms that after having conducted a search of those records, Araya James Smith,

2001-11-16, does not possess a Possession and Acquisition License issued under the Firearms Ac t and did not possess a Possession and Acquisition License on August 13, 2020. [ 45 ] Furthermore, Mr. Parkin’s affidavit dated February 17, 2022 [Exhibit 1] confirmed that Araya James Smith, 2001-11-16, does not possess a license or authorization to possess nonrestricted firearms, restricted firearms, prohibited firearms, prohibited weapons or prohibited devices. In addition, Mr.

Parkin’s affidavit states that no current application for a firearms license or a firearm registration bearing the name Araya James Smith, 2001-11-16, has been found in the Canadian Firearms Information System. [ 46 ] During his testimony, Mr. Parkin explained that all handguns are either restricted or prohibited under

section 84 of the Criminal Code and that the distinction between the two is that the “prohibited firearm” is generally shorter than a “restricted firearm” and has different magazine capacities and in some cases calibre of the firearm itself. Prohibited firearms, generally being smaller than restricted firearms, in his opinion would be more easily concealed. [ 47 ] Mr. Parkin explained that transportation of restricted or prohibited firearms must only be done by persons with authorizations to possess them, carried in a hard case with a trigger lock.

They may only be used in approved shooting ranges unless being utilized by a public officer, in the performance of his, her or their duties, for example, police, military or armed security guards. [ 48 ] He also provided information with respect to the provisions of the Storage, Display, Transportation and Handling of Firearms by Individuals Regulations , SOR/98-209 . In particular, he pointed out that

section 15 of those Regulations state that an individual may load a firearm or handle a loaded firearm only in the place where the firearm may be discharged in accordance with all applicable Acts of Parliament and of the legislature of a province, regulations made under such Acts and municipal bylaws.

He confirmed that with respect to the definition of authorized “ places ” where a firearm may be loaded, handled or discharged does not include any hotel located in Nova Scotia. [ 49 ] Furthermore, pursuant to sections 5, 6 and 7 of those same Regulations which deal with the Storage of Non-Restricted Firearms, Storage of Restricted Firearms and Storage of Prohibited Firearms, Mr.

Parkin stated that all three must be stored on loaded, rendered inoperable by a secure locking device and stored in a securely locked appropriate container and not readily accessible to ammunition. [ 50 ] In terms of the safe handling of firearms, Mr. Parkin also highlighted the training requirements under the statute and regulations.

In particular, he referred to two acronyms as vital parts of the training courses, the first being ACTS and the second acronym being PROVE . [ 51 ] The acronym ACTS is taught in the manual and the safety course as being: A – assume every firearm is loaded and is a potential danger; C – control the muzzle direction at all times – keep it pointed in the safest direction never pointed at anyone including yourself; and out of the trigger guard; T – trigger finger must be kept off the trigger and out of the trigger guard and finally, S – see that the firearm is unloaded – prove it safe do not handle unless it is safe, check to see that both chamber and magazine are empty every time weapon is handled and only pass or accept open and unloaded firearms. [ 52 ] The acronym PROVE which is also taught in those safety manuals stands for: P – pointed in the safest available direction; R remove all ammunition; O – observe the chambers; V – verify the feeding path; E – examine the bore for obstruction. [ 53 ] Mr.

Parkin pointed out that the bottom line from those training manuals and the two fundamental Acronyms for handling firearms – Acts and Prove highlight the inherent danger of firearms and special precautions and care needed to handle them in a safe manner. He provided several examples of poor handling choices that create dangerous situations such as horseplay and pulling the trigger or when handling firearms under the influence of alcohol or other intoxicants. [ 54 ] On cross-examination, he agreed that firearms can accidentally discharge and do degrade over time if they are not maintained.

He also agreed with Defence Counsel that revolvers typically do not have a safety on them. Mr. Parkin stated that it is always prudent to treat a firearm as if it is loaded, even if it was recently cleared. He stated that the prudent practice is to always check to see if the firearm is loaded and recheck the firearm if it was put down for a moment, as someone else may have handled it in the interim. [ 55 ] Mr. Parkin also stated that firearms are mechanical devices and must be maintained in order to avoid dirt getting into the mechanism and causing a jam.

He stated that he would not trust any gun found by someone on a beach after a period of time as being mechanically sound. In his opinion, the hammer may be misaligned or there may be problems with the firing pin. In that situation, once again, a person should make sure the gun is clear when handling it and pointing it only in a safe direction, never at people, and especially, never with the person’s finger on the trigger as if ready to shoot. [ 56 ] On further cross-examination, Mr.

Parkin was asked about the difference between a “misfire” and a “hang fire.” He stated that a misfire can occur with all firearms and could be an issue with respect to the firearm or the ammunition or perhaps something mechanical as a reason for not firing at all. On the other hand, in his opinion, “hang fire” may be a factor of old surplus ammunition, casings, powder or primer that may be in the firearm that does not ignite instantly.

There could be a delay of a few seconds or even a minute and for that reason, if someone has pulled the trigger, the firearm should always be kept pointed in a safe direction. [ 57 ] Cameron Brown testified on June 7, 2022 and stated that he was 22 years old at that time. He confirmed that on August 13, 2020, he and a few of his friends arranged to “hang out” together at the Dartmouth Crossing location of the Hampton Suites Hotel, located in Dartmouth, Nova Scotia.

The people who attended with him at that hotel that evening were Ethan Tibbo, Bobbi, being a nickname for Antwoine Clarke, Traydell, Araya Smith and a girl, whose nickname was “Peaches” who was later identified as Teirah Slawter. He has known Ethan since high school and met the others through him. [ 58 ] Earlier in the day on August 13, 2020, Cameron Brown and Ethan were in Halifax together at his house and then, between 1:00 and 2:00 PM. they went over to North Preston and first picked up Araya Smith. About a half-hour to one hour later, they got Traydell.

Ethan was driving his car, with Cameron Brown in the front passenger seat, while Araya Smith sat in the back seat behind him. They drove around, smoked some weed, listened to music and just generally had a “good time.” When Traydell got in the car, he sat behind

the driver, Ethan. Later that night, they got together with the other people at the hotel. [ 59 ] When the four of them were driving around in the car, smoking some weed and listening to music, Mr. Brown stated that they were “fucking around with a gun.” He stated that Araya had the gun, and he had seen it when he had it in his pants. Mr.

Brown added that Araya Smith had the gun but “a number of us did hold or touch the gun,” but said that was not done in the car, rather it was “somewhere else.” He did not recall any specific place where they stopped as they had “cruised” in Dartmouth as well as in Halifax for a while, as Ethan lived in Halifax. [ 60 ] As they continued to drive around, they went to the Baker Drive area of Dartmouth where they picked up Antwoine and “Peaches.” Mr. Brown stated that he was “friends” with both of them and after they got in the car, they went to an NSLC to buy some liquor, and then went to get the hotel room.

They had not made a reservation, but the plan was to get a room for the night, drink alcohol and have some fun. They had done that on previous occasions, as a group, but he had not previously gone to the Hampton Suites Hotel in Dartmouth Crossing. [ 61 ] When they got to the hotel, it was about 8:00 PM or a little bit earlier in the evening. Mr. Brown had given his ID for the room to be put in his name, but he split the cost of the room with Mr. Smith.

They got a room on the fifth floor of the hotel and once everyone got in the room, they chilled, partied, drank alcohol, did some drugs and just generally hung out together. Once in the room, they did some drugs and he mentioned that they were “Molly” as a reference to MDMA as well as some “blow” referring to 2 g of cocaine that he had purchased and brought to the hotel room. They had also purchased some Hennessy Cognac and vodka. [ 62 ] Mr. Brown was not able to recall the amount of cocaine that he or anyone else used that evening but stated that “all of us” did some.

He added that after he was shot, he still had ½ g of cocaine in his pocket and he had mentioned that fact to one of the police officers who attended. In terms of the MDMA, he is not sure who brought it or who actually used it. People were drinking the Hennessy Cognac and vodka. [ 63 ] During the evening, they were just “chilling” and hanging out together. With respect to the gun, Mr.

Brown said that the “original plan” was to put the gun in a drawer so that nothing happened and just to continue to chat, drink and do some “blow.” When asked to provide a little more detail about that “original plan” with respect to the gun, Mr. Brown said that they were all drinking and that the responsible thing to do was to put it away so that “nothing stupid would happen.” He said that the gun had been placed in a drawer, but then, a little later, he saw it on a table when he was “pretty drunk.” [ 64 ] In terms of what happened next, Mr.

Brown stated that he was standing by the exit door and on the phone with an aunt, after he saw the gun on a table. A few moments later, Mr. Brown noticed that Mr. Araya Smith was holding it. He added that, prior to Mr. Smith picking up the handgun, Mr. Brown himself had held the gun, but he stated that he held it with the sleeves of his shirt touching the gun so that his fingerprints would not be on it. [ 65 ] Mr. Brown described the gun as being a “22 Special” revolver which he recalled having seen that inscription on the “nose” of the gun, referring to the barrel of the handgun.

He identified it as a 22 special revolver. In terms of its size, he described it as a regular size revolver, not having a “stub nose” or a short barrel as it was about 9 to 10 inches long with about a 5-inch barrel. The gun that he had seen was about 3 to 5 inches longer than a stub nose gun, which has a shorter barrel that is approximately 2 to 3 inches long and the overall length of the handgun was 6 to 7 inches. Mr. Brown described the gun as being a black revolver, which had a “busted handle” with some duct tape on it and that it was “a little rusty” too. [ 66 ] Mr.

Cameron Brown confirmed that the evening of August 13, 2020, was not the first time that he had seen that handgun. He stated that he had seen the gun about a day or two before the night that he was shot, when he was with Araya Smith, Ethan and possibly Traydell at Araya Smith’s house in North or East Preston. He confirmed that the gun was at the house where Araya Smith was living, but he was not sure who else lived in that house with him. Mr.

Brown stated that Araya Smith “pretty much showed us the gun” a day or two before the incident at the hotel. [ 67 ] He added that, when he was at Araya Smith’s house a day or two before the incident at the hotel, he had seen ammunition in the gun and had not seen a holster for the gun. Mr. Brown stated that, when he was at Araya Smith’s house, he had seen the ammunition in the handgun “through the crack where the bullets go in and then closes.” [ 68 ] Mr. Brown added that he had also seen the ammunition in the handgun during the evening when he was shot at the hotel.

He stated that, while they were at the hotel, he saw Araya Smith take ammunition out of the gun. He also saw Mr. Smith pull the bullets out a little bit from the metal casing of the gun where the bullets sit and it spins. [ 69 ] For further clarification with respect to his description of the handgun, the Crown Attorney referred Mr. Brown to Exhibit 4,the Canadian Restricted Firearms Safety Course Program, 2014 prepared by the RCMP. In particular, the Crown Attorney asked Mr. Brown to look at pages 254 and 255 which show the common types of handgun actions. Having done so, Mr.

Brown stated that the handgun that he had seen looked like the one shown in Figure 105 - a Break Action Revolver, shown on page 255 of Exhibit 4. [ 70 ] Mr. Brown repeated that he had seen that revolver a couple of days before the incident and again at the hotel, and the gun had a part that you needed to revolve and turn to put in or take-out a bullet. He was familiar with 22 calibre bullets and the one that he saw in the gun had a copper casing on it. It was a small bullet about fingertip size which also had a bit of a gold casing as well. [ 71 ] Mr.

Brown repeated, as he had mentioned before, that he “handled” the gun himself in his hands. He believed that he was waving it around a little bit and looking at it from different angles as he was circling it on his hand. He did not touch the spinning part or for that matter any other part of the gun, and as he had mentioned before, he had not put his fingerprints on a gun that could be used for a crime.

He added that he did not put his finger on the trigger, as he “is not careless with guns.” He also believed that Traydell may have held the gun for a a short time while they were at the hotel. [ 72 ] Coming back to describe the incident itself, Mr. Brown stated that Araya Smith did “more or less” the same handling of the gun that he had done. He repeated what he had earlier said, that is, that he was on the phone talking to his aunt, while he was standing

near the front entry door to the hotel room. The hotel room as documented by photo #1 in Exhibit 5 was room 503. Mr. Brown said that Traydell and Araya Smith were sitting on the bed at the other end of the room. The next thing he knew, there was a bang, he fell to the ground, and he could not move. Traydell and Araya Smith ran out of the room, while Antwoine (“Bobbi”) put a towel on him to stop the bleeding. [ 73 ] In addition to stating where Traydell and Araya were in the moments before he was shot in the back, Mr.

Brown also stated that Ethan was standing near the table with the sink in the washroom area of the hotel room. He stated that there was also a table against the wall next to the entry to that bathroom area where “Bobbi” [Antwoine] and “Peaches” [Teirah Slawter ] were standing. Araya and Traydell were on the bed. He was near the entry area of the room and he was facing the exit door when he heard a “lone bang” took 2 steps back after being hit in the back by the bullet and then fell to the ground. [ 74 ] After verbally stating that information, the Crown Attorney then directed Mr.

Brown’s attention to certain photographs contained in Exhibit 5 which had been taken by Const. Katelyn Cherwonick on August 13, 2020. In referring to photo #10, Mr. Brown stated that he was facing the exit door, standing essentially on the edge of the carpet near the ceramic tile at the room entry. [ 75 ] Mr. Brown stated that from where he was standing, facing the exit door while he was on the phone, Antwoine and “Peaches” were located to his right, standing by the table facing the wall next to the washroom area, when he was shot.

After he was shot, he took a couple of steps backward and then fell on the floor, landing essentially in front of the smaller table which had been moved in front of the bed as shown in photographs #13 and #22. He pointed out to where there was blood on the carpet floor and where there were pieces of paper towel with his blood on the floor. [ 76 ] Mr. Brown stated that Antwoine picked him up off the floor and put him facedown on his chest on the couch shown in photo #13 and then applied pressure with a towel to stop the bleeding until an ambulance arrived.

He also asked Antwoine to call his aunt and let her know what had happened. Mr. Brown also commented on the red Adidas tracksuit in photos #13 and #20 that he was wearing when he was shot. It was cut off by the EMS personnel when they attended to treat him. [ 77 ] With respect to photo #29, Mr. Brown stated that the lamp located on the table on the left side table of the bed as we view it, has a drawer where the gun was initially placed when it was not in plain view.

Then, once the gun was removed from the drawer in that table, it was placed on the table which is against the wall next to the washroom area. [ 78 ] With respect to photograph #27 in Exhibit 5, Mr. Brown confirmed that the brass knuckles shown in the photographs were his. Next, he noted that the cognac bottle was on the table on right side of the bed and that the vodka bottle on the table next to the wall where Antwoine and “Peaches” had been standing.

The marijuana and tobacco leaf which had been rolled by him and Traydell was on the office type chair which had been moved over to the right side of the bed as shown in photo #33. He also confirmed that the iPad on the left side of the washstand shown in photo #40 belonged to Ethan and that was where he was doing “blow” or cocaine off of it. [ 79 ] In describing his injuries, Mr. Brown said that he was shot on the left side of his back around the shoulder blade and the bullet ricocheted into his neck and in fact is still in the C5

section of his spine. He stated that he was almost paralyzed from the neck down and had to relearn how to eat, talk, walk as it was determined to be too serious to remove the bullet. Although he was able to communicate briefly as he was removed from the hotel on a stretcher, he was going in and out of consciousness and the next day he was not able to move anything from the neck down. Mr. Brown was in the hospital for two months and then did a further three months of rehab to recover. [ 80 ] Mr.

Brown confirmed that he had a vague recall of meeting with the police at the hospital, but he did not recall any questions asked by them. He did not make a statement that night other than a couple of words because he “did not want to be part of it and that he was going through enough shit as it was.” [ 81 ] Going back to the circumstances after he was shot, and before he was placed on the couch, Mr. Brown confirmed that Araya Smith ran out of the room and Traydell left the room shortly thereafter. Ethan left the room with Traydell after he told Ethan to leave so that he would not get in trouble.

It was Ethan who called 911. As a result, while he was lying on the couch, the only people left in the hotel room with him were “Bobbi” [Antwoine] and “Peaches.” She was crying and scared, while Antwoine put pressure on the towel over the gun wound, until he was ordered to step aside and taken to the ground when the police arrived. [ 82 ] Mr. Brown stated that the shooting occurred sometime between 12 midnight and 1 AM when everyone was “pretty drunk” and intoxicated.

He estimated that he had been shot about 5 to 10 minutes before Ethan called 911. [ 83 ] Finally, he confirmed that he does have a criminal record with a few adult convictions and some youth convictions. He agreed that he has an adult conviction for assault with a weapon, which he says involved the defence of his mother, he is facing a theft of motor vehicle charge which is still before the court, and he has a couple of convictions for driving while disqualified and breach of conditions in a Probation Order in 2018. [ 84 ] Mr.

Brown also confirmed that he has prior Youth Court convictions for assault in December 2017, breaches of bail conditions, theft of a motor vehicle, trespass at night, possession over and a theft under charge, a further assault charge, and assaulting a police officer. [ 85 ] In concluding his direct examination, Mr. Brown stated that since the incident, Araya Smith did apologize to him, in a message sent to his phone.

However, he did not have his phone after the incident for a few weeks, but his recollection of what Araya had said was that it “was a mistake” and that he wanted me to forgive him. [ 86 ] On cross-examination, Mr. Brown confirmed that he never initially gave a statement to the police, he had only indicated to them what had occurred in the preceding couple of weeks. On the day in question, he confirmed that Ethan picked him up first and that he was driving his VW Jetta with Mr. Brown seated in the passenger seat. The next person who they picked up was Araya Smith and then they drove around town for a while. Mr.

Smith sat behind him and short time later, they picked up Traydell. He confirmed that the NSLC where they went to purchase the alcohol was on 650 Portland St. in Dartmouth, NS. They purchased vodka, Hennessy cognac and

12 case of beer and all of them shared the purchase price. [ 87 ] Mr. Brown stated that, during the evening at the hotel, he was only drinking the Hennessy cognac, but everyone was drinking alcohol and were intoxicated. They arrived at the hotel around 8 PM and he recalled that the 911 call was made around 12:35 AM, with him being shot about 5 to 10 minutes before that 911 call.

He agreed with Defence Counsel that everyone had been drinking alcohol between about 8:00 PM and midnight, with the heaviest drinking being between 10:00 PM and 10:30 PM, then he switched to more “casual drinking” which involved, mixed drinks and shots. [ 88 ] Mr. Brown agreed with Defence Counsel that he had also done some cocaine and agreed that he had told the EMS personnel that he was “superhigh” on cocaine to ensure that they provided the right medications for him. In terms of the consumption of cocaine, Mr.

Brown said that, in total, the people who were in the hotel room with him and who used cocaine, had consumed about 1.5g of cocaine. He still had about ½ g of cocaine left in the package in his pocket. He did not think that “Peaches” did any drugs and he had not used any MDMA but had been using “weed” all day. He agreed with Defence Counsel that alcohol and drugs can affect a person’s memory, but it really depends on the individual and the consumption. [ 89 ] Mr. Brown said that when he was shot in the back, he was on the speakerphone with his aunt and at the same time, he had been sending a text to a friend.

He agreed with Defence Counsel that he was not looking around, but rather his concentration was on the phone at that time. [ 90 ] Mr. Brown agreed with Defence Counsel that, at different times, different people did handle the gun. In his case, he had held the gun, but he only held it with the sleeves of his jacket. He was not sure whether Antwoine had handled the gun, but it was a “definite no” with respect to whether “Peaches” ever touched the gun. Mr. Brown stated that the “original plan” for the gun was that it was to be left in the drawer beside the bed.

He did not recall who took the gun out of the drawer and put it on the table in the middle of the room. [ 91 ] With respect to the description of the gun itself, he confirmed that the gun looked “rusty,” the handle was broken and was wrapped in duct tape. Finally, with respect to the timing between hearing the shot and the gun being placed on the table in the middle of the room, Mr. Brown said that he last saw the handgun on the bed where Traydell and Araya Smith were sitting. He saw them with the gun, and they were “handling it and chilling with it within five minutes of being shot.” [ 92 ] Const.

Scott Martin testified that, on August 13, 2020, he and Const. Devon Norris responded to a weapons complaint at the Hampton Suites Hotel, located at 65 Cromarty Drive, in Dartmouth Crossing. He did not go into the hotel but was there for “containment” prior to the start of a K-9 track. On the K-9 track, they found a white T-shirt with blood on it, in the parking lot. The white T-shirt with bloodstains seized by the police in the parking area of the hotel is shown in a series of photographs by Const.

Cherwonick, filed as Exhibit 6. [ 93 ] Ethan McRobbie-Tibbo testified by video link from a Canadian Forces base as he had recently joined the Canadian forces and was on training for the trade of a marine engineer/technician. He indicated that on August 13, 2020, he was present when an incident occurred at the Hampton Suites Hotel and Dartmouth, Nova Scotia. He confirmed that, at that time, he also went by the nickname “Ethan M.

T.” which used the initials of his hyphenated family name. [ 94 ] As for the evening in question, he initially stated that he could not recall all of the people who were in the room, however, he recalled that Araya Smith was there as well as Antwoine and his girlfriend and a few others.

On further reflection, he confirmed that Cameron Brown was the person who was injured, Antwoine was in the room with his girlfriend, but he did not remember her name and recalled that Traydell and Araya Smith were also there. [ 95 ] Ethan Tibbo confirmed that he has known Cameron Brown for a few years and the other people for a shorter period. The group were like “brothers” to him and he spent most of his days primarily with Araya and Traydell and then some time with Cameron Brown and Antwoine. On the day in question, Mr.

Tibbo said that he was with Cameron Brown all day and they drove around town in his 2012 VW Jetta with Mr. Brown seated in the front passenger seat. He did not specifically recall what the two of them had done during the day. [ 96 ] Mr. Tibbo confirmed that later, in the day, they met up with the rest of the group. He did not recall who he picked up next, but he did recall that all the people who he picked up after Mr. Brown were in the backseat. As they drove around town, nothing unusual happened, but Mr. Tibbo did confirm that someone in the car had a firearm.

He looked back to see, but he was not sure who “owned” it. When asked, on direct examination, if he found out who did “own the firearm,” Mr. Tibbo said that it was Araya Smith’s gun. He recalled that the gun had been pulled out and shown to the others then put away in a bag, while it was on his side of the car before they all went to the hotel. [ 97 ] Everyone in his car went into the hotel room, including the bag which had the firearm in it. Once inside the hotel, the group of friends were just “hanging out, drinking, and talking.” Mr.

Tibbo confirmed that the firearm came into view again in the hotel room and, at a certain point, everyone held it and that “everybody pretty much touched it.” He could not say for sure that everyone had touched the handgun, but he did recall that it was taken out of a drawer and put back in that drawer a couple of times. [ 98 ] Mr. Tibbo stated that he had touched the handgun and that he had pulled it out of the drawer and had opened it up. When he did that, he pulled the release a little bit and saw that a round was loaded.

He was not sure of the brand of gun, but after seeing the bullet, he was satisfied it was a 22-calibre firearm. He is aware of 22-calibre firearms having recently gone into the military and having had the opportunity to fire 22 calibre guns at a shooting range. [ 99 ] When Mr. Tibbo looked at the gun, he had one hand on the pistol grip, and he pulled the release to break it and then looked inside the chamber. He noticed that the chamber had a “few rounds,” but could not recall the specific number, and then he reattached the barrel.

When he closed the gun, he pointed it towards the wall and away from everyone else in the room to ensure that nothing happened to impact the safety of the people. [ 100 ] Mr. Tibbo did not recall whether Cameron Brown had handled the gun. However, he did recall having given the gun to Traydell to put back in the drawer and he also recalled seeing Traydell with the gun a little later. Mr. Tibbo stated that the first person who had the

gun in the hotel was Araya Smith and he saw him “playing with it.” As Araya Smith was doing that, he said something and, as a result, Mr. Tibbo thought that the gun was unloaded. [ 101 ] Mr. Tibbo recalled seeing the firearm and that he saw bullets loaded in it. He seemed to recall that someone unloaded it at a certain point, but he also recalled Araya Smith “playing with it” while he was sitting on the bed.

In addition, he recalled hearing someone say before the incident that the gun was unloaded, but he did not recall who had said that. [ 102 ] In terms of where everybody was when the handgun fired a bullet, Mr. Tibbo said that Mr. Brown was near the entrance of the room where there is a kitchen, just on the carpet side before the ceramic floor of the kitchen area. He did not specifically recall where everybody else was before the incident. [ 103 ] Mr. Tibbo stated that the last time he saw the gun before it fired a bullet, Araya Smith had it while he was on the bed in the centre of the room.

He recalled having thought, at that point, that the gun was unloaded because Mr. Smith was “playing with it and pulling the trigger and pointing it around.” Mr. Tibbo recalled making that observation while he and Cameron Brown were near the door to the hotel room. He was not sure whether Antwoine was also near the front door. [ 104 ] He stated that when Mr. Smith was pointing the firearm, he was “not comfortable” because he knew that you should not be pointing a firearm at people, especially your friends. Then, Mr. Tibbo said that he heard some “clicking sounds” but he was not sure whether Mr.

Smith was pointing the firearm at him or whether he had also pointed it at other people in the room. Mr. Tibbo recalled that after Mr. Smith pointed the firearm at him, he then pointed it at Cameron Brown and that was when the shooting occurred, because Cameron had been hit. [ 105 ] Mr. Tibbo was certain that a shot had been fired because he heard the hammer being hit and then fired the bullet which hit Cameron Brown. He looked at Mr. Brown just as he fell to the ground and he saw blood on his back, so he picked up Mr. Brown and put him on the couch.

He confirmed that he did not have his eyes of the shooter when the gun was fired but stated that Araya Smith had the gun just before Cameron Brown was hit by the bullet from the gun. He did not see the shot fired, but he heard the gunshot sound, saw his friend Cameron Brown get hit in the back with a bullet. The last person who had the gun before the shot was fired, was Mr. Araya Smith. [ 106 ] After Cameron Brown fell to the ground, Mr. Tibbo heard him call for help and Mr. Tibbo picked him up and put him on the couch. Mr. Tibbo noticed that Mr.

Brown could not move his arms or legs after he put him down on the couch. Then, Antwoine came over and applied pressure to the bullet hole. Shortly after that, Mr. Tibbo left the hotel room, but he called 911 for the ambulance while Antwoine stayed with Mr. Brown. [ 107 ] When Mr. Tibbo left the hotel, he went to his car and drove over to his girlfriend’s house to stay overnight. No one else came with him. He did not know where Araya Smith or Traydell had gone.

He had not seen any police officers arrive at the hotel, but he knew that an ambulance was on the way. [ 108 ] On further direct examination, he was again asked, who was handling the firearm just before the shot was fired. Mr. Tibbo stated that Mr. Smith was the last person who he saw handling the firearm before the shot was fired. He added that when it was pointed at him, he saw the gun, but after that, he did not have “full eyes” on Araya Smith. Mr. Tibbo added that when Mr.

Smith was holding the firearm, he felt that it must have been unloaded, because “it was not safely handled.” [ 109 ] In making that comment, Mr. Tibbo added that he has since had firearms training in the military and has been on a shooting range. He is aware of what you are supposed to do with a firearm as he had done the safety course at a firing range as well as with the military.

He did not pull the trigger at any time and was certain that he probably never would have, no matter how drunk he was, based upon him always maintaining “basic safety rules” for handling a firearm. [ 110 ] With respect to the amount of alcohol that he had consumed that evening, Mr. Tibbo stated that he did not really have that much, and he was okay to drive, having had maybe 1 to 2 drinks of Smirnov vodka mixed with the pop. He did not recall having consumed any drugs and that evening; he had only consumed a couple of drinks of alcohol.

He was not sure of the amount of alcohol that Araya Smith or anyone else had consumed that evening. [ 111 ] On cross-examination, Mr. Tibbo confirmed that he had given a statement to the police on the same day as the incident, which had occurred after midnight. He went to the police station after midnight with Antwoine and indicated that his comments were truthful and accurate at the time but indicated that it has been two years since he made that statement.

He agreed with Defence Counsel that what he said in the statement might be a more accurate statement of the events than his recollection of the events during this trial. [ 112 ] In particular, Defence Counsel pointed out that he had said to the police that he had picked up Mr. Brown in his Jetta, they drove around for a while and then picked up Araya Smith. He agreed that while he was driving, he did not look in the back, but he had said something about seeing the gun in the bag in the backseat. In drawing Mr.

Tibbo’s attention to his police statement, he corrected himself and acknowledged that he had told the police that he had not seen the gun until they got to the hotel room as he remembered that fact better at the time of his statement to the police. [ 113 ] After he picked up everybody, he recalled that Mr. Brown was in the front passenger seat and the others were in the backseat, but he could not specifically recall where each one of them was sitting. As for the stop at the NSLC, Mr. Tibbo confirmed that he did not go into the store to purchase alcohol himself, because he was only 18 years old.

He did confirm having one or two drinks of alcohol at the hotel, arriving there around 8:00 PM and that he called 911 at 12:35 AM. [ 114 ] When asked again about the amount of alcohol that he had consumed, Mr. Tibbo reiterated that, although he was at the hotel with his friends for about four hours before the shot was fired, he had only finished one drink and was working on the second drink when the bullet was fired. One drink was a vodka mix and the other was a Hennessy mix, he did not drink any beer. He did not recall consuming any marijuana that day or consuming any cocaine with the others at the hotel.

[ 115 ] On further cross-examination, when the shot was fired, Mr. Tibbo said that Mr. Cameron was in the centre of the room. When Defence Counsel suggested that Mr. Smith might have been sitting on the bed with Traydell, Mr. Tibbo was not 100% sure whether Mr. Smith was on the bed or standing in the centre of the room. He was also not sure where Traydell was, but he certainly recalled Mr. Smith and Traydell “played with the gun” prior to it being fired. Mr. Tibbo said that he thinks that everyone had held the gun at a certain point but was not certain.

He added that if he told the police that he had touched it at that time, that was probably accurate. [ 116 ] Mr. Tibbo confirmed that he had taken the gun out of the drawer where it had been placed at one point in time. He described the gun as looking “old” with duct tape on the pistol grip, which had been damaged. He recalled telling the police that the gun “looked like it wouldn’t even work” because it was old, and it looked like it had come “out of water.” [ 117 ] On re-examination by the Crown Attorney, Mr.

Tibbo stated that his comment that “it looked like it wouldn’t even work” was an opinion made at a time when he had no training with respect to the operation of firearms. He had assumed that it would probably not work because “of the rust all over it which might affect the firing process.” [ 118 ] Finally, with respect to the general question on cross-examination by Defence Counsel, whether his statement to the police that he had seen the gun in the car on the way to the hotel was more accurate than today’s evidence, Mr.

Tibbo confirmed that, in his statement at that time, he did not tell the police that he had seen the gun in the car on the way to the hotel. During his trial testimony, he had stated that he thought that he had seen the gun in the car on the way to the hotel, but “that was an error today.” Mr. Tibbo confirmed that his original statement to the police on that point, was “correct.” [ 119 ] Const. Dylan Carter was one of the first officers to respond to the 911 call and attend at the Hampton Inn Hotel on August 13, 2020.

He confirmed that they had received the notification about the incident at 12:35 AM on that date and arrived at the hotel within 10 minutes and immediately went to room 503. When he got on scene, he immediately saw the bullet wound in the upper left side of the back of Mr. Brown. He and his partner then placed towels on the wound and applied pressure to stop the bleeding until the paramedics arrived a few minutes later. Const. Carter went with the ambulance which took Mr. Brown to the QEII Hospital where he was seen by the trauma team in the emergency department. Const.

Carter confirmed that photo #15 in Exhibit 5 shows where he located the wallet of the victim which had his ID and a large sum of cash. [ 120 ] Const. Devon Norris also responded to the weapons call on August 13, 2020, at the Hampton Inn Hotel in Dartmouth, Nova Scotia. He was with Const. Martin when he located a white T-shirt which had a few bloodstains on it, in the parking lot just outside the hotel. In order to determine whose T-shirt that was, he reviewed security video footage and made still images of the people believed to be involved in the incident.

A series of still images which had timestamps to indicate when they were taken by the security camera, were filed as Exhibit 9. [ 121 ] Const. Norris stated that some of the still images from the security video to identify people were taken when those people happened to be in the hotel lobby on August 12, 2020. In the case of Araya Smith and Traydell Brown, the photo image was at about 10:01 PM, with Const. Norris stating that he believed that the other person was Antwoine Clarke.

However, after reviewing this image, I find, based upon other video evidence and the witnesses’ descriptions of the people who came to the hotel that evening, that the other person in that image who was also in the lobby at 11:34 PM on August 12, 2020, was Ethan Tibbo, who is the white male wearing the black jacket. [ 122 ] On the first page of Exhibit 9, the other still images which were taken from the security video camera #04, shows a young black male, who was identified as Araya Smith, wearing a white T-shirt, which on close examination, appears to have bloodstains on the front just under the neck. Mr.

Smith enters the hallway after exiting from an internal hotel staircase and then turns left to proceed down the hall. According to the timestamp on those still photographs from the security video, he enters the hallway from the staircase exit door at about 12:39 AM on August 13, 2020. Mr. Smith appears to be on his cell phone as he goes into the hallway. [ 123 ] Const.

Norris also indicated, after refreshing his memory from supplemental disclosure, that Traydell Brown is the person who is shown in the other still images contained in Exhibit 9 on that same camera #4, coming out of the internal staircase exit door and into the hallway. After doing so, he turns right and proceeds through an interior hallway door, just over a minute after Araya Smith at about 12:41 AM on August 13, 2020.

Traydell Brown is wearing the same white hoodie that he was wearing when his image was captured by camera #1 in the lobby area at 11:34 PM on August 12, 2020. [ 124 ] Following the entry of those photographs and the comments of Const. Norris, the parties confirmed that with respect to the photographs taken by Const. Cherwonick in Exhibit 5 and Exhibit 6, they were true and accurate representations of the T-shirt with the bloodstains, which were taken on June 2, 2022.

They also agreed that the photos in Exhibit 5 show how and where everything was located in room number 503 at the Hampton Inn Hotel when police officers arrived there around 12:45 AM on August 13, 2020. They agreed that the photographs had been authenticated and could be filed as Exhibits, as neither counsel had any additional questions for that officer. [ 125 ] Teirah Slawter was the next witness called by the Crown Attorney. When she testified on June 14, 2022, Ms. Slawter stated that she was 20 years old and presently in training with the Canadian Forces.

She confirmed that the people who were in the hotel room when the shooting occurred were herself, her boyfriend Antwoine, Araya, Cameron, Traydell, and Ethan. She had met Cameron and Ethan a couple of times before this night as they are friends with Antwoine. As for Araya Smith and Traydell, she stated that was the first time that she met the two of them. [ 126 ] In terms of the description of the people who were in the hotel room with her at the time of the shooting, Ms. Slawter stated that Araya Smith was a short black man with curly short hair.

He did not wear glasses and had a young-looking face, estimating that he was between 18 and 20 years old. Traydell was a tall, black man with curly hair and beard who she estimated to be 18 and 20 years old. Ethan was a white male with dark brown hair with possibly some chin hair, estimating that he might have been 21 or 22 years old. Cameron was a white male with dark brown hair and no facial hair who she estimated to be 20 or 21 years old.

She was dating Antwoine at the time, and she described him as being a tall black man with curly hair, who had a little beard on his chin and was then 20 or 21 years old. [ 127 ] On the day of the incident, Ms. Slawter and Antwoine had been together in the afternoon at the mall and then, in the evening,

they went to the hotel to get together with friends. She said that the two of them took a cab from his house and arrived at the hotel between 10 and 10:30 PM. When they arrived, she said that the other guys were trying to book a room and that Antwoine helped them do that. They were trying to pay with cash, but the hotel wanted a credit card, and the other guys did not have one, however, her boyfriend Antwoine did have one.

She was standing to the side of the lobby, while Antwoine, Ethan and Traydell were at the desk dealing with the hotel clerk. [ 128 ] Once they all got into the hotel room, everyone just “chilled,” talked and drank alcohol and some people may have used some other intoxicants. She was sitting by a desk near the entry door and had a few drinks of vodka. People were sitting in pairs, with Cameron and Ethan sitting together, Araya and Traydell as a second grouping and her and Antwoine staying by the desk. [ 129 ] Ms.

Slawter stated that the shooting occurred about 1 to 2 hours after they got into the hotel room and the police arrived about 10 to 15 minutes after the shooting. Prior to the shooting, she said that there was nothing unusual happening other than seeing Araya and Traydell on the bed with the gun. They were holding the gun and looking at it, but she never thought that they would “play with” a loaded gun. When asked to clarify what she meant by “playing with the gun,” she stated that they were twirling it, pointing it and then Araya shot it as he had his finger on the trigger.

Cameron Brown was to her left. [ 130 ] Once again, for clarity, she was asked what was happening just before the shooting and Ms. Slawter stated that they were holding, looking at the gun playing with the gun and pointing the gun with it in their hands. Based upon the way they were handling the gun, Ms. Slawter did not think it was loaded. When questioned about who she was referring to when she had stated that “they” were handling the gun, she stated that she was referring to Araya and Traydell, but then added, that she was not really sure if Traydell had held the gun, but she “knows Araya did.” [ 131 ] Ms.

Slawter was asked to provide a description of the gun that she had seen, and she stated that it was a “little handgun” with the handle that may have been broken or wooden. She was not sure of the description, because she was not that close to it, however she described it as being a “average size handgun” with a brown handle. She was not familiar with handguns at that time but added that the part of the gun where the bullets go, rotates. [ 132 ] Ms. Slawter was asked to describe where everybody was in the moments just before Mr. Brown was shot in the back.

She and Antwoine were by the desk close to the entry door to the hotel room, Ethan was by the washroom while Araya and Traydell were on the bed. Cameron Brown was standing by the wall where you enter the room near the sofa in the room. Araya Smith was on the right side of the bed, closest to the windows of the room. [ 133 ] At the moment when Mr. Brown was shot, Ms. Slawter stated that she was facing the wall with her back to everyone, and she was talking on the phone with someone. She heard the noise and immediately thereafter heard Cameron Brown say that he had been shot.

She turned and saw that Cameron had been shot and that it was a serious situation and then someone else called 911. With respect to the gun, she initially turned to see what had happened to Cameron Brown, but then she saw the gun thrown on the bed by Araya Smith. [ 134 ] Ms. Slawter stated that, after the 911 call to report that Cameron Brown had been shot, everyone in the room was panicking and she went to Cameron to try to attend to his injury. Ethan, Traydell and Araya ran out of the hotel room, but Antwoine stayed with her to take care of Cameron until the police arrived.

The two of them used towels to put pressure on the wound so that Cameron would not “bleed out.” The police arrived and then they took over care of Cameron. [ 135 ] When asked what happened to the gun after Mr. Brown was shot, Ms. Slawter stated that she initially saw the gun on the bed and then “they” may have put the gun in a backpack or a pocket, when they left the room. The gun was not in the hotel room, and she was not sure where it went after seeing it on the bed.

She confirmed that, during the evening, she never touched the gun and had no interest whatsoever in touching the gun. [ 136 ] Finally, with respect to general questions about the amount of alcohol that she or any of the others had consumed, Ms. Slawter recalled only having about four shots during the evening as she is not at heavy drinker. She was able to focus on what was happening and was not drunk, only having a “little buzz.” With respect to Araya Smith, she was not sure how much he had to drink, but she estimated that he may have had a “little buzz” like her.

She added that the others were drinking some alcohol, but no one, in her opinion, seemed that drunk at the time of the shooting. [ 137 ] On cross-examination, Ms. Teirah Slawter confirmed that she had made a statement to the police within a few hours after the incident and that she had reviewed it prior to her testimony. In her view, it remained accurate and there were no corrections. She stated that she was pretty sure that she arrived with Antwoine and met the others at the hotel. She did not recall all six of them getting to the hotel at the same time and being in Ethan’s car.

The key to the hotel room was not obtained until all six of were in the lobby. [ 138 ] In terms of what she had to drink, she said that she had some vodka shots with pop as a chaser. She drank with Antwoine, but she did not buy or bring any alcohol to the hotel room, the others brought the alcohol. She had not consumed any alcohol before getting to the hotel and was not drunk after the few drinks that she had there.

She did not consume any marijuana and did not personally see anyone do any cocaine, but there were a couple of people in the washroom area, who were out of her sight for a period of time. [ 139 ] She confirmed that, in her statement to the police, she had said that Ethan, Traydell and Araya were behind her and that, after Cameron Brown was shot, everyone ran over to aid him.

She had also told the police that, after initially doing that, those three people left the hotel room, leaving her and Antwoine to look after Cameron until medical personnel arrived. [ 140 ] On further cross-examination with respect to her description of the gun, she said that the handle seemed to be wooden and was brown in colour. She was approximately 10 feet away from where the gun was located, so she could not really “see the details of the gun.” She agreed that she could not see or tell if there was ammunition in the gun or whether it was loaded. Ms.

Slawter said that she had seen the gun earlier in the evening, but then thought that it had been placed “in a drawer for the night” until she saw it again, a little later. She did not see who took the gun out of the drawer. [ 141 ] On re-examination, Ms. Slawter was asked who she last saw with the gun just before Mr. Brown was shot. She said that Araya

Smith, Ethan and Traydell were in the general area of the gun prior to the shooting and that Mr. Smith had it in his hands for about 5 to 10 minutes before Cameron Brown was shot. When she saw the gun sitting on the bed, it was closest to Araya Smith who was on the right side of the bed as she was looking at the bed from her vantage point in the room. Mr.

Smith was closest to the gun, perhaps being about a half meter away from it, whereas it was about 6 to 7 feet away from where Ethan Tibbo was located and about 4 to 5 feet away from where Traydell was located. [ 142 ] Antwoine Clarke also testified on June 14, 2022, at which time, he indicated that he was 20 years old. He indicated that, on the day in question, he got together with some of his friends to go to a hotel in Dartmouth Crossing to spend the evening and that during the evening someone got shot.

He stated that everything “happened fast” and he “blacked out” for a second and then a short time later, the police arrived, and he was under investigation for five hours that evening. He confirmed that the people present in the hotel room when Mr. Cameron Brown was shot were himself, Cameron Brown, Traydell, Teirah Slawter, Ethan and Araya. [ 143 ] In terms of prior knowledge of those other people, Mr.

Clarke stated that he has known Traydell Brown for several years, had met Araya Smith, Teirah Slawter and Ethan Tibbo that year and on the evening in question, it was the first time that he had ever met Cameron Brown. He stated that he had been with his girlfriend, Teirah Slawter at his house earlier in the day and then he heard from either Ethan or Traydell that they were going to get a hotel room and hang out together for the evening. Mr. Clarke stated that Ethan came over to his house and then they all went to the hotel in Ethan’s car. [ 144 ] Mr.

Clarke indicated that that nothing unusual occurred in the car as they went to the Dartmouth Crossing hotel. He did not specifically recall stopping on the way but indicated that they may have stopped for some reason prior to arriving at the hotel.

When they got to the Dartmouth Crossing hotel, he recalled using his credit card as he was the only one who had one with him, and generally, he always ended up paying for room when they did something like that. [ 145 ] Once they got the room, they all drank some alcohol and just generally had “fun.” He drank Hennessy, not recalling the specific amount but stating that he was drunk. Everyone else was drinking the alcohol that had been brought to the room. [ 146 ] Prior to the shooting, Mr. Clarke “realized” that there was a gun in the bedroom, but he was not sure whether it was a prop or a toy.

Obviously, after the shooting, he realized that it was a weapon. In addition, he stated that he was not sure who brought it, or who had it in the hotel room or who carried it, he simply stated that, at a certain point, he saw the gun. When he saw the gun, he stated that “we were looking at it” but that was all he noticed, because he was focused on drinking and speaking with his girlfriend. [ 147 ] In terms of a description of the gun, Mr.

Clarke said that it was all metal, but not like the type of gun used by the police, it was “far from that.” Although he had never been around guns, he saw that the gun was metal, had some rust on it and the handle looked like it had been wrapped with something. He did not touch the gun, and he stayed away from the gun. [ 148 ] Furthermore, with respect to his observations of the gun, Mr. Clarke stated that when he first saw it, the others were showing it around. After that, he did not see the gun again and did not recall where it had come from or where it had been placed when it was out of his sight.

He did not see the gun again until Mr. Brown was shot. In addition, he was uncertain as to who had touched the gun, as it has been a couple of years since the incident occurred. [ 149 ] Mr. Clarke described the room set up, there was a couch near the entry door

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