R. v. Taylor, 2013 ONCA 656

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Taylor, 2013 ONCA 656

DATE: 20131031

DOCKET: C54969, C55172, C55287

Goudge, Cronk and Gillese JJ.A.

BETWEEN C54969

Her Majesty the Queen

Respondent

and

Aubrey Taylor

Appellant

AND BETWEEN C55172

Her Majesty the Queen

Respondent

and

Dwayne Jahton Blair

Appellant

AND BETWEEN C55287

Her Majesty the Queen

Respondent

and

Claudiah Gooden

Appellant

Jonathan Dawe, for the appellant, Aubrey Taylor

Diana Lumba, for the appellant, Dwayne Jahton Blair

Paul Calarco, for the appellant, Claudiah Gooden

Benita Wassenaar, for the respondent

Heard: October 1, 2013

On appeal from the convictions entered by Justice Deborah J. Austin of the Ontario Court of Justice, sitting without a jury, on December 22, 2011 and from the sentence imposed by Justice Austin on the appellant Aubrey Taylor, on January 20, 2012.

Cronk J.A.:

I. Introduction

[1] Following a joint trial before a judge alone, the appellants were convicted of importing, possessing and transporting illegal firearms into Canada. The charges arose out of an incident on November 17, 2010 when alcohol and several handguns were smuggled from the United States to Walpole Island, Ontario.

[2] The appellants Claudiah Gooden and Dwayne Jahton Blair also pleaded guilty to charges of unlawful importation of alcohol and possession of packaged alcohol on which duty had not been paid. The appellant Aubrey Taylor defended the same charges. He was convicted of both offences and sentenced to six months’ imprisonment on each charge, concurrent to his effective sentence of 33 months’ imprisonment on the firearms offences. The appellant Blair was also convicted of resisting arrest. He was acquitted on one count of assaulting police.

[3] All three appellants appeal their firearms-related convictions. If Taylor’s firearms conviction appeal succeeds, he seeks leave to appeal and, if leave be granted, appeals from sentence on his two alcohol-related convictions. The appeals were heard together in this court.

II. Facts

[4] It is unnecessary for the disposition of these appeals to review the facts in detail. The following brief summary will suffice.

[5] In the months leading up to the Walpole Island incident, Gooden travelled twice to Atlanta, Georgia (June 28, 2010 and November 12-14, 2010), each time meeting an associate, Eric Lynch. When Gooden was detained by border officials on her return to Canada from the first Atlanta trip, her BlackBerry device was found to contain photographs of firearms, ammunition and prohibited weapons. As well, $1,000, wrapped in a blank receipt from a gun show in Atlanta, was found in her purse. No charges were laid and Gooden was permitted re-entry to Canada.

[6] On November 13, 2010, while in Atlanta during her second trip, Gooden was sent $2,200 from Canada. In addition, on November 16, 2010, the day before the smuggling incident, Taylor, acting on instructions from Gooden, wired $1,273.06 (U.S.) to Lynch in Georgia. He gave the receipt for this wire transfer to Gooden.

[7] At trial, the Crown led evidence of extensive text messages and telephone calls from and to Lynch, both prior to and on November 17, 2010. Gooden acknowledged that many of these messages had been sent or received on her BlackBerry or cell phone.

[8] Walpole Island is located close to the United States border, between Sarnia and Windsor. On November 17, 2010, the appellants travelled together to Walpole Island in a car rented by Taylor. When they arrived on the island, they made contact with a local resident, Nathan Shipman, and sought his assistance to obtain goods from an associate (Lynch) on the American side of the border. Blair asked Shipman to obtain three boxes of liquor from their associate and bring them back to the appellants on Walpole Island. According to Shipman, Blair said that the alcohol was intended for use at a forthcoming birthday party.

[9] Shipman agreed to the proposal, for a fee of $150. He obtained a boat from another island resident, travelled the short distance to the American side of the St. Clair River, made contact with the appellants’ associate (Lynch), and returned with what he understood were three boxes of alcohol.

[10] On Shipman’s return to Walpole Island, the three boxes were loaded into the trunk of Taylor’s rental car, in the presence of the appellants. Two of the boxes were sealed. They contained approximately $600 worth of smuggled liquor. The third, unsealed box contained four firearms (two semi-automatic pistols and two revolvers) wrapped in a variety of clothing. Gooden’s DNA was subsequently detected on some of the clothing.

[11] Within a short time, the police intercepted Taylor’s rental car and discovered the contraband in the trunk of the vehicle. Shipman and the appellants were arrested and charged with the alcohol and firearms-related offences mentioned above.

[12] The central issue at trial was the appellants’ knowledge of the firearms. Shipman testified for the Crown. His evidence of what occurred and the activities of the three appellants on November 17, 2010 was an important plank in the Crown’s case against all three accused. The Crown also relied on the pattern and content of the text and telephone messages to and from Lynch and the physical presence of the firearms in Taylor’s rental car, among other matters, as circumstantial evidence of the appellants’ guilt.

III. Gooden’s Conviction Appeal

[13] Gooden pleaded guilty to the alcohol-related charges but maintained that she had no knowledge of or involvement with the smuggling of the firearms. She claimed that she was planning a birthday party for her husband, the appellant Blair, that was to feature a number of exotic dancers. She said that she went to Walpole Island to pick up two dancers who were to perform at the party in Toronto. She maintained that although she had purchased speciality alcohol in the United States for use at the party, she had no prior intention of arranging a meeting with Lynch on November 17th. Rather, the rendezvous with Lynch and the illegal importation of the alcohol on that day were arranged at the last minute, when the opportunity to engage Shipman’s services arose. She professed to have no knowledge as to how the firearms came to be in the trunk of Taylor’s rental car.

[14] The trial judge rejected Gooden’s explanation for her activities on Walpole Island. She held that Gooden’s evidence was “replete with contradictions” and inconsistent with the focus of the numerous text messages to and from Lynch. In particular, she held that Gooden’s communications with Lynch were inconsistent with her asserted purpose for travelling to Walpole Island on November 17^th, the circumstances surrounding Shipman’s meeting with Lynch on that day, and Gooden’s claim of incidental arrangements for the delivery merely of alcohol from the United States.

[15] The trial judge accepted Shipman’s evidence, including his testimony that he obtained three boxes of what he believed contained alcohol from an associate of the appellants on the American side of the border that were later placed in the trunk of Taylor’s rental car, in the presence of the appellants, when Shipman returned to Walpole Island.

[16] Gooden argues that the trial judge erred in her treatment of Shipman’s evidence. Gooden submits that since Shipman, a co-accused, was an unsavoury Crown witness, the trial judge was obliged to subject his evidence to a Vetrovec-like level of careful scrutiny: Vetrovec v. The Queen, 1982 CanLII 20 (SCC), [1982] 1 S.C.R. 811. She contends that the trial judge erred: (1) by failing to apply the correct level of scrutiny to Shipman’s testimony; (2) by restricting her examination of the evidence potentially corroborative of Shipman’s testimony to only that evidence supportive of the prosecution’s case; (3) by relying on inadmissible or rejected evidence to bolster Shipman’s credit and reliability; and (4) by ignoring or misapprehending evidence that undermined Shipman’s credibility and enhanced that of Gooden.

[17] In my view, Gooden’s attack on the trial judge’s treatment of Shipman’s evidence is unsustainable.

[18] The trial judge acknowledged that Shipman played a key role in the smuggling transaction alleged by the Crown, that he had a criminal record (including for crimes of dishonesty) and that, as a co-accused, he had a strong motive to minimize his own liability for the crimes alleged. As a result, the trial judge explicitly, and repeatedly, directed herself that Shipman’s evidence should be approached with great caution and close scrutiny in accordance with the principles outlined in Vetrovec.

[19] The trial judge also addressed disputed issues arising from Shipman’s testimony and, as I describe in paragraphs 22 and 23 of these reasons, sought corroboration of the critical aspects of his version of events. She ultimately concluded, “After directing my mind to all of the factors that might impair the worth of Mr. Shipman as a witness and his credibility, his evidence can and is relied upon to support a conviction, because it is materially confirmed or corroborated by other sources.”

[20] In these circumstances, there is simply no foundation for the claim that the trial judge failed to appreciate the care required in assessing Shipman’s evidence, or that she failed to exercise the requisite caution in evaluating and relying on his testimony.

[21] I also see no basis on which to fault the trial judge’s use of corroborative evidence in relation to Shipman’s evidence.

[22] It is true that the trial judge relied on some aspects of Gooden’s testimony to corroborate parts of Shipman’s evidence, even though she rejected Gooden’s proffered explanation for her conduct before and during her visit to Walpole Island. The trial judge did not err in doing so. She was entitled, as with any other witness, to reject or accept all, some or none of Gooden’s evidence. The trial judge’s rejection of Gooden’s account of her purpose for attending at Walpole Island and her alleged lack of knowledge of and involvement with the firearms did not preclude her reliance on those aspects of Gooden’s testimony that corroborated Shipman’s evidence.

[23] More importantly, in testing Shipman’s credibility and the reliability of his testimony, the trial judge relied on various sources of corroborative evidence, in addition to pertinent aspects of Gooden’s testimony. These included the physical evidence of the firearms and alcohol found by the police in the trunk of Taylor’s rental car shortly after Shipman’s return from the United States; the fact that all the appellants were present when the boxes obtained by Shipman were placed in the trunk; the extensive text messages and photographs on the BlackBerry and cell phone devices admittedly used by Gooden; and Gooden’s receipt of significant funds – in amounts far in excess of the value of the alcohol she purchased – while she was in the United States in the days leading up to the smuggling incident. This evidence afforded ample circumstantial corroboration of Shipman’s testimony.

[24] Gooden especially challenges the trial judge’s reliance on the text messages for corroboration of Shipman’s testimony, arguing that they are inadmissible hearsay. In my opinion, this argument fails for two reasons.

[25] First, at trial, Gooden conceded the admissibility of the text messages. During his final submissions, Gooden’s trial counsel confirmed his position that only the reliability of the text messages was suspect. In these circumstances, I agree with the Crown that it is not open to Gooden to challenge the admissibility of this evidence on appeal.

[26] Second, Gooden’s counsel acknowledged during the appeal hearing that the text messages sent by Gooden do not constitute hearsay. This was a proper concession. The text messages sent by Gooden herself were not hearsay. The content, frequency and timing of those messages afforded powerful inculpatory evidence of Gooden’s knowledge of and involvement with the smuggling of the firearms.

[27] At the end of the day, the Crown’s case against Gooden on the firearms charges was overwhelming. The fresh evidence sought to be filed by Gooden on appeal does not affect the strength of the Crown’s case against her. I see no basis for appellate interference with Gooden’s convictions on the firearms offences.

IV. Blair’s and Taylor’s Conviction Appeals

[28] I reach a different conclusion, however, concerning Blair’s and Taylor’s firearms convictions. In light of the similarity of their grounds of appeal, I will address their conviction appeals together.

[29] Blair appeals from his firearms convictions on two grounds. First, he submits that the trial judge’s reasons are insufficient on the critical issue whether Blair knew or was wilfully blind about the firearms. Second, he argues that the verdicts on the firearms charges are unreasonable.

[30] Like Blair, Taylor argues that the trial judge’s reasons for convicting him on the firearms charges are flawed. He submits that the reasons are fatally deficient because: (1) they are silent on the key issue of his state of mind concerning the firearms. As a result, it cannot be said that the trial judge lent her mind to the requisite mens rea for the firearms offences; (2) in the alternative, even if the trial judge did address the question of Taylor’s mens rea, the reasons do not explain how she resolved the issue of his knowledge of or wilful blindness concerning the smuggled firearms; and (3) in any event, the reasons fail to address exculpatory evidence pointing away from the inference of his guilty knowledge of the firearms. Again like Blair, Taylor further submits that his convictions on the firearms charges are unreasonable.

[31] Blair’s and Taylor’s main contention is that the trial judge’s reasons fail to meet the standard for sufficiency of reasons set out in R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869, R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3 and their progeny. That standard requires that a trial judge’s reasons: (1) be reasonably intelligible to the parties; (2) reveal the foundations of the trial judge’s decision when viewed in the context of the particular circumstances of the case and the trial record; and (3) provide the basis for meaningful appellate review of the correctness of the trial judge’s decision: Sheppard, at para. 55; R.E.M., at para. 17; R. v. Vuradin, 2013 SCC 38, [2013] S.C.J. No. 38, at paras. 10 and 19.

[32] The trial judge’s reasons for convicting Blair and Taylor of the firearms offences are brief (three paragraphs). In their entirety, they read as follows:

With respect to Mr. Blair and Mr. Taylor, given the independent sources of corroboration of Nathan Shipman’s evidence that he was merely the courier for all items in the trunk of the vehicle, including the general corroborative nature of Ms. Gooden’s own evidence about the matter, Mr. Shipman’s evidence about the relative roles of the three parties during the day is generally reliable and accurate in the view of the Court. It was clear in the evidence of both Mr. Shipman and Ms. [Gooden] that Mr. Blair and Mr. Taylor were there to assist Ms. Gooden as active participants rather than as passive passengers in the course of this transaction that was taking place. Mr. Blair had direct discussions and made arrangements with Mr. Shipman, including the fee for his work, the actual details of what was expected and it was clear that Mr. Blair took a leadership role in those instructions and communications with Mr. Shipman about what was to be done that day.

The evidence not only of Mr. Shipman, but independent evidence supports the conclusion that Mr. Taylor also played an active role by aiding and abetting Ms. Gooden’s offence in sending the Western Union money transfer of $1,273.06 in US dollars to Eric in Georgia on 16th of November just before the Walpole Island rendezvous. He also rented the vehicle that was driven to the Walpole Island connection and although that car was rented some 10 days earlier, on the evidence of Ms. Gooden it was at the disposal of the parties generally leading up to this date, according to her, and it was made available for the trip. Mr. Taylor attended the trip and this was the day after he had sent a large sum of money directly to Eric in Atlanta.

It is reasonable and supported to conclude, in all of the circumstances, that Mr. Taylor allowed himself to be used by Ms. Gooden and to play a role in this transaction, perhaps for the purpose of reducing the risk that the others’ identities would be traced to this trip and the illegal nature of the transaction, or perhaps for purposes unknown, but it is clear that he played an active role in aiding and abetting the offences.

[33] At trial, it was the Crown’s theory that each of the appellants played a role in knowingly planning and committing the offences related to the smuggling of the firearms and the alcohol. Blair maintained that the only scheme in which he knowingly participated was the plan to smuggle alcohol. In contrast, Taylor denied any knowledge of or involvement with the smuggled alcohol. Both men denied any knowledge of the firearms or any plan to smuggle them into Canada.

[34] The Crown’s case against Blair and Taylor was entirely circumstantial. In these circumstances, the trial judge was obliged to consider the possibility that they knew of and participated only in the smuggling of the alcohol, and not the smuggling or presence of the firearms. She was required to be satisfied beyond a reasonable doubt that the only reasonable conclusion available on the whole of the evidence was that Blair and Taylor knew or were wilfully blind about the firearms. As the Supreme Court confirmed in R. v. Charemski, 1998 CanLII 819 (SCC), [1998] 1 S.C.R. 679, at paras. 3 and 4, even where the Crown’s case rests entirely on circumstantial evidence, “[t]he Crown must adduce some evidence of [the accused’s] culpability for every essential definitional element of the crime for which the Crown has the evidential burden” (emphasis in original).

[35] In this case, the Crown invoked party liability against the appellants, under s. 21(1) of the Criminal Code. The Crown maintained that all the appellants had entered into a joint enterprise or venture to involve themselves in the illegal importation of handguns and alcohol into Canada, using Shipman as a courier. Crown counsel put it this way in his final submissions at trial:

It is the Crowns’ theory that the defendants aided and abetted each other in a variety of means [sic] to achieve their intended end and that was to secure from the United States the four handguns that were subsequently found in the trunk of the vehicle that was stopped by the police on the evening of November 17, 2010.

I am obviously inviting you to find as a fact that what did occur in this particular instance is that the weapons were in a box that was brought across by Nathan Shipman and that it was done at the behest of the defendants before the court.

[36] Thus, the Crown sought to establish that Blair and Taylor participated, together with Gooden, in a plan to smuggle firearms into Canada by aiding and abetting that joint enterprise.

[37] The trial judge relied on Shipman’s evidence, the independent sources of corroboration that he was merely the courier for the items found in the trunk of Taylor’s car, and the “general corroborative nature of Ms. Gooden’s own evidence about the matter”, to ground her acceptance of the Crown’s theory. She found that Blair and Taylor were both present “to assist Ms. Gooden as active participants – rather than as passive passengers in the course of this transaction”.

[38] Section 21(1) of the Criminal Code makes perpetrators, aiders, and abettors of a crime equally liable. Section 21(1) provides:

21.(1) Everyone is a party to an offence who

(a) actually commits it;

(b) does or omits to do anything for the purpose of aiding any person to commit it; or

(c) abets any person in committing it.

[39] In R. v. Briscoe, 2010 SCC 13, [2010] 1 S.C.R. 411, at para. 13, the Supreme Court explained that the actus reus and mens rea for aiding or abetting are distinct from those of the principal offence. The actus reus of aiding or abetting is “doing (or, in some circumstances, omitting to do) something that assists or encourages the perpetrator to commit the offence”: Briscoe at para. 14. The aider or abettor must also have the requisite mental state or mens rea. To establish the mens rea of aiding or abetting, the Crown must prove: (1) that the accused intended to assist the principal in the commission of the offence; and (2) the accused’s actual knowledge or wilful blindness that the perpetrator intends to commit the crime: Briscoe at paras. 14-21.

[40] The actus reus component of the firearms charges is not in issue on Blair’s and Taylor’s appeals. The trial judge found that both accused assisted Gooden and were present when the firearms were placed in the trunk of Taylor’s car. In Blair’s case, the trial judge held that he had directly discussed the smuggling arrangements with Shipman and that he took “a leadership role in [the] instructions and communications” with Shipman. With respect to Taylor, the trial judge held that he wired money to Lynch in the United States on November 16; that he rented the vehicle used to transport the appellants to Walpole Island and to take eventual delivery of the contraband; and that he “attended the trip” for the events in question. There was ample evidence accepted by the trial judge to support these factual findings. They establish the actus reus for Blair’s and Taylor’s party liability on the firearms offences.

[41] The key issue is whether the trial judge also examined whether Blair and Taylor had the requisite mens rea for any of the firearms offences. Based on her reasons, I am unable to conclude that she considered and resolved this crucial question in respect of either Blair or Taylor.

[42] Early in her reasons, the trial judge identified the live issues regarding the firearms offences in these terms: “who put [the firearms] in the trunk, whether they were already in that box or not, who knew about them.” However, apart from this brief initial reference to “knowledge” of the firearms, the trial judge never addresses the issue of the mens rea required for party liability for the firearms offences in her reasons.

[43] Nothing in the trial judge’s reasons specific to Blair and Taylor, quoted above, adverts to the necessary mental element for the firearms offences. The balance of the trial judge’s reasons contains no mention, express or implied, of Blair’s or Taylor’s mens rea or state of mind concerning the smuggling or presence of firearms. Importantly, the trial judge made no finding that Blair and/or Taylor knew of Gooden’s intention to smuggle the firearms or that either or both of them was wilfully blind to this plan. Nor did she make any finding that they intended to assist Gooden in the commission of the firearms offences, as opposed to only the alcohol-related offences.

[44] Blair’s and Taylor’s necessary mens rea for the aiding or abetting of Gooden in the commission of the firearms offences cannot be assumed. Nor can it be extrapolated from Gooden’s state of mind. The mens rea component of aiding or abetting is an essential element of party liability under ss. 21(1)(b) or 21(1)(c) of the Criminal Code. It is unclear from the trial judge’s reasons that she considered whether Blair and Taylor intended to assist Gooden in the smuggling of firearms and alcohol, or just alcohol. It is similarly unclear whether she considered and concluded that Blair and Taylor both knew or were wilfully blind about Gooden’s intention to smuggle firearms.

[45] Blair and Taylor characterize these uncertainties as material deficiencies in the trial judge’s reasons, i.e. as “Sheppard errors”. They essentially contend, not that the trial judge’s reasoning is defective, but rather that her reasons are fatally silent or unclear on the mental element required to fix Blair and Taylor with party liability for the firearms offences under s. 21(1) of the Code.

[46] I agree. In my view, the trial judge’s failure to address and come to grips with Blair’s and Taylor’s requisite mental states or mens rea regarding the firearms is an error of law. Her failure to consider and resolve the issue of Blair’s and Taylor’s knowledge or wilful blindness of Gooden’s intention to commit the firearms offences constitutes a legal error that necessitates a new trial for Blair and Taylor on the firearms charges.

[47] I have considered whether the trial judge’s findings about Blair indicate that she found him culpable of the firearms offences as a perpetrator or principal. There is some support for this conclusion in the trial judge’s reasons – she refers expressly to “aiding and abetting” only in relation to Taylor.

[48] However, I am compelled to reject this reading of the trial judge’s reasons. The trial judge refers to Blair as having been present “to assist Ms. Gooden” as an “active participant”. This is the language of aiding or abetting. Moreover, neither at trial nor before this court did the Crown contend that Blair was liable as a principal for the firearms offences.

[49] I am also cognizant of the Crown’s argument that at least two of the incriminating text messages sent to Lynch on November 12, 2010, asking him to “Look 4 one named S & W bodyguard” and “See if u can get one like that”, came from a cellphone or other device used by Blair, thus affording some evidence of Blair’s intention to smuggle guns.

[50] I would not accede to this submission. During oral argument before this court, Blair’s counsel pointed out that there was no proof at trial of Blair’s actual use of the device in question, as distinct from Gooden, his spouse, at the relevant times. The record supports this claim and I did not understand Crown counsel to dispute it. In any event, the trial judge did not rely on these text messages to ground any finding regarding Blair’s mental state in relation to the firearms offences. She made no finding that the device in question had been used by Blair at the relevant times. Nor, it appears, was she asked to do so.

[51] For similar reasons, I would reject the Crown’s submission that the numerous text and telephone messages exchanged with Lynch on the day of the smuggling incident, and the money sent by Taylor to Lynch in the United States on the day prior to this incident, established Taylor’s mens rea in relation to the firearms offences.

[52] The trial judge made no finding that the incriminating text and telephone messages were sent by Taylor or that the device employed to send these messages was used by him at the relevant times. The fact that Taylor wired money to Lynch at Gooden’s request does not establish that he knew or was wilfully blind to the fact that Gooden intended to use the money to purchase firearms, as opposed to alcohol. Certainly, the trial judge made no such finding.

[53] I therefore conclude that the firearms convictions against Blair and Taylor cannot stand. A new trial is required to determine whether either or both of these accused had the requisite mens rea to establish their guilt on the firearms charges.

V. Taylor’s Sentence Appeal

[54] Taylor was sentenced, on the basis of a joint submission, to a total effective sentence of 33 months’ imprisonment, as required by the mandatory minimum sentence provided under the Criminal Code in respect of two of his firearms offences, after three months’ credit for pre-sentence custody. As I have said, as part of this global sentence, the trial judge sentenced Taylor to six months’ imprisonment for each of his two alcohol-related convictions, concurrent to his sentences on the firearms offences.

[55] Taylor argues that if his conviction appeal on the firearms offences is allowed, he should be granted leave to appeal against sentence on the alcohol offences and his sentences on those offences should be varied to time served. The Crown concedes that if Taylor’s conviction appeal succeeds, leave to appeal sentence should be granted and Taylor’s sentences on the alcohol-related charges should be adjusted. She submits that, in those circumstances, a $500 fine is an appropriate disposition for Taylor’s alcohol-related convictions.

[56] As I have already explained, I would allow Taylor’s conviction appeal on the firearms offences. In light of the Crown’s concession, described above, it therefore falls to this court to fashion a fit sentence on Taylor’s two alcohol-related convictions.

[57] I am satisfied that a custodial sentence for these convictions is not warranted. At the sentencing hearing, defence counsel and provincial Crown counsel made submissions only on the appropriate global sentence to be imposed on Taylor. Federal Crown counsel, who appeared separately, made no submissions in support of his position that Taylor’s alcohol-related convictions should attract six-month custodial sentences.

[58] Nor do the sentencing reasons provide any justification for these sentences. Rather, they suggest that the six-month custodial sentences derived from counsels’ joint submission regarding an appropriate global sentence of 36 months’ imprisonment (before credit for pre-sentence custody). In effect, at the time of imposition, the concurrent custodial sentences on the alcohol-related charges had no practical significance.

[59] I also agree with Taylor’s submission that if he had been charged and convicted only on the alcohol-related offences, it is most unlikely that any custodial sentences would have been imposed, let alone six-month terms of imprisonment.

[60] Further, I do not accept that a fine is warranted for this offender and these offences in the circumstances now applicable.

[61] At the time of sentencing, Taylor was a first offender. He also had a favourable pre-sentence report and he complied with his bail provisions between his release date and his remand into custody for sentencing. He has served a total of 62 days in pre-trial custody and 24 days in post-sentence custody. Moreover, the offences at issue (possession of contraband alcohol on which duty was owed to the state) are not extremely serious, the quantities of alcohol involved are not large (18 bottles in total), and the loss to the treasury occasioned by their unlawful importation and the non-payment of duty was less than $500. Finally, the trial judge found that Taylor had the “most peripheral involvement” of any of the three appellants in the offences at issue.

[62] Given these factors, including the time already spent by Taylor in custody, I regard time served as a fit sentence for his alcohol-related offences.

VI. Disposition

[63] For the reasons given, I would dismiss Gooden’s conviction appeal. I would allow Blair’s and Taylor’s conviction appeals, set aside the verdicts on their firearms convictions and direct new trials on the firearms charges for each of these appellants. Finally, I would grant Taylor leave to appeal sentence on his alcohol-related convictions, allow his sentence appeal on those convictions, set aside the sentences imposed, and vary his sentences on the alcohol-related charges to time served.

Released:

“EAC” “E.A. Cronk J.A.”

“OCT 31 2013” “I agree S.T. Goudge J.A.”

“I agree E.E. Gillese J.A.”