ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

S. Cressman, for Her Majesty the Queen

• and -

ANDINE TAYLOR

D. Midanik, for the accused, Andine Taylor

HEARD: October 26 to November 23, 2012

Thorburn J.

REASONS FOR JUDGMENT

I. OVERVIEW

[ 1 ] Andine Taylor is charged with twelve offences which include possession of two firearms, possession of a magazine for ammunition, possession of a firearm for the purpose of transferring it, and the transfer or offer to transfer a firearm.

[ 2 ] Taylor admits he was in possession of two firearms at the time of his arrest and says he was in the process of returning them to Layne Philips as agent for Warret Martin when he was arrested. Taylor claims he should be found not guilty of all charges as he took the firearms under duress.

[ 3 ] In the alternative, Taylor claims that even if his argument of duress does not succeed, he did not transfer firearms to Philips within the meaning of the Criminal Code , R.S.C., 1985, c. C-46 as he was returning them to the person who had given them to him and should therefore be found not guilty on counts 10 through 12 (the charges involving the transfer of firearms).

[ 4 ] It is agreed that the applicable test is that of the common law defence of duress. Taylor claims he satisfies this three-part test because:

• he was subject to a threat of death or serious physical injury and reasonably believed the threat would be carried out;

• there was no safe avenue of escape or reasonable opportunity to render the threat ineffective; and

• here was “proportionality between the threat and the criminal act to be executed” as the threat was greater than the crime committed.

[ 5 ] The Crown takes the position that on the facts of this case the defence of duress should not succeed. There is no air of reality to this defence and even if there were, on the evidence that should be accepted, the Crown has satisfied the Court beyond a reasonable doubt that the defence of duress must fail.

[ 6 ] I find the Defence of duress does not apply because Taylor voluntarily exposed himself to the risk of involvement in criminal activity with Martin. Moreover, there is no air of reality to Taylor’s claim that he was under duress because, during the time he had firearms in his possession, Taylor had avenues of escape and the means to make the threat ineffective. Even if there were an air of reality to the defence of duress, the Crown has satisfied me beyond a reasonable doubt that the defence of duress must fail.

[ 7 ] Finally, it is agreed that Taylor had the guns in his possession and was in the process of handing them over to Philips. The process of handing over the guns fits within the definition of transfer as transfer is defined in the Criminal Code to include deliver or provide, which includes handing over items to the appropriate recipient. As such, the Crown has proven the charges of transferring or offering to transfer firearms beyond a reasonable doubt.

[ 8 ] I therefore find Taylor guilty on all counts.

II. THE CHARGES

[ 9 ] The twelve charges are as follows:

i. possession of a loaded prohibited firearm, namely a .40 calibre handgun, while he was not the holder of an authorization or licence to have that certificate contrary to section 95(1) of the Criminal Code ;

ii. possession of that firearm knowing he was not the holder of a licence to possess it contrary to section 92(1) of the Criminal Code ;

iii. possession of the firearm without being the holder of a licence pursuant to section 91(1) of the Criminal Code ;

iv. possession of a loaded restricted firearm, a 9 mm Ruger semi-automatic handgun while he was not the holder of a licence or registration certificate contrary to section 95(1);

v. possession of a 9 mm Ruger semi-automatic handgun knowing he was not the holder of a licence contrary to section 92(1) of the Criminal Code ;

vi. possession of a 9 mm Ruger semi-automatic handgun without being the holder of a licence under which to possess it contrary to section 91(1) of the Criminal Code ;

vii. possession of a 9 mm Ruger handgun knowing that the serial number on it had been removed contrary to section 108 of the Criminal Code ;

viii. concealing a weapon without being the holder of a permit to carry the 9 mm Ruger handgun contrary to section 90(1) of the Criminal Code ;

ix. possession of an overcapacity firearm magazine for ammunition without being the holder of a licence to possess it contrary to section 91(2) of the Criminal Code ;

x. transfer or offer to transfer a firearm knowing he was not authorized to do so, contrary to section 99 of the Criminal Code ;

xi. possession of a firearm for the purpose of transferring it or offering to transfer it contrary to section 100 of the Criminal Code ; and

xii. possession of a loaded firearm for the purpose of transferring it or offering to transfer it knowing he was not authorized to do so contrary to section 100 of the Criminal Code .

III. THE EVIDENCE

Taylor’s Evidence Regarding How he Came into Possession of the Guns

[ 10 ] Taylor testified that he received a phone call from Martin. Martin told Taylor that Philips was driving his car and the radiator hose was leaking. Martin asked Taylor to see if he could fix the problem. Taylor examined the vehicle.

[ 11 ] Martin then called Taylor and asked what was wrong with the vehicle. Taylor told Martin there was something wrong with the vehicle and Philips might not be able to make it home in the vehicle. Martin therefore told him there was something he did not want to leave in the vehicle and asked Taylor to hold onto the “two pieces” and he would pick them up the next day. Taylor understood (from previous discussions with Martin) that “pieces” referred to guns.

[ 12 ] Taylor told Martin he did not feel comfortable keeping the firearms in his apartment as they are illegal and his wife usually came to the apartment two or three times a week. Martin told him he had to hold onto it three times and then hung up the phone. Taylor did not call Martin back.

[ 13 ] When Taylor went downstairs he could hear Martin shouting on the telephone at Philips. Martin yelled at Philips that Taylor had to take the bag and Philips then walked up to Taylor and told Taylor he had to take the bag. Taylor took the bag and opened it and saw that it contained two guns and a bulletproof vest. Taylor did not check to see if the guns were loaded.

[ 14 ] Taylor says he was afraid of Martin because Martin told Taylor that when he asked someone to do something and they did not do it, “things could happen.” Taylor said he thought that if he refused to take the guns, Martin would have him killed.

[ 15 ] Taylor said he kept the guns in his apartment and did not call police because, “I was afraid that maybe if I do that -- they arrest him, yes, I understand that but later on, what's going to happen, happen to me? What's going to happen to my family?”

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Thorburn J.

Released: December 20, 2012