ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CR-12-40000269-0000
DATE: 20121114
BETWEEN:
ANDINE TAYLOR Applicant – and – HER MAJESTY THE QUEEN Respondent
David Midanik, for the Applicant, Andine Taylor
Sheila Cressman, for the Respondent
HEARD: November 8, 2012
Thorburn J.
RULING RE APPLICATION FOR DIRECTED VERDICT
Part 1. The Issue
[ 1 ] Andine Taylor is charged with twelve firearms offences. Three of the twelve counts include:
(a) transfer or offer to transfer a firearm knowing he was not authorized to do so, contrary to section 99 of the Criminal Code ;
(b) possession of a firearm for the purpose of transferring it or offering to transfer it contrary to section 100 of the Criminal Code ; and
(c) 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 .
[ 2 ] At the close of the Crown’s case, Defence counsel brought a motion for a directed verdict relating to the above three counts. A directed verdict will be entered only where there is no evidence upon which a jury properly instructed could convict.
[ 3 ] The key issue in this case is whether the Crown has adduced “some evidence of culpability” regarding the essential element in section 99 of the Criminal Code of transfer or offering to transfer a firearm, and the essential elements in section 100 of the Criminal Code of possession of a firearm or loaded firearm for the purpose of transferring or attempting to transfer it.
[ 4 ] For the reasons that follow, the Application for a directed verdict is denied.
Part II. The Law
The Test on an Application for Directed Verdict
[ 5 ] A trier of fact should make the determination as to the appropriate verdict after hearing all of the evidence, where "there is admissible evidence which could, if it were believed, result in a conviction." (United States of America v. Sheppard , [1997] 2 S.C.R. 1067 at p. 161as reaffirmed in R v. Arcuri , (2001), 2001 SCC 54 , 157 C.C.C. (3d) 21 (S.C.C.) per McLachlin C.J.C. at 30-31.) The trial judge may direct a verdict of acquittal only if the Crown fails to adduce “some evidence of culpability” for every essential element of the offence charged. ( R. v. Charemski , 1998 , [1998] 1 S.C.R 679, at para. 3 .)
[ 6 ] That evidence may be adduced by direct evidence or circumstantial evidence. Circumstantial evidence is evidence that tends to prove a fact by proving other events or circumstances from which the occurrence of another fact can be reasonably inferred. ( R. v. Cinous 2002 SCC 29 , [2002] S.C.J. No. 28 at para 89 .)
[ 7 ] The test to be applied in the case of both direct and circumstantial evidence is the same but the process to be engaged in is different.
[ 8 ] Where there is direct evidence as to every element of the offence, a judge does not weigh the evidence on an application for a directed verdict. The only conclusion that needs to be reached in such a case is whether the evidence is true. ( R. v. Cinous (supra) at para 88.)
[ 9 ] Where there is only circumstantial evidence on an essential element, the judge must engage in limited weighing of the evidence because inferences must be drawn from the evidence. The inferences must be ones which can be reasonably and logically drawn from a fact or group of facts established by the evidence. (Doherty J.A. in R. v. Morrissey , (1995), 1995 , 97 C.C.C. (3d) 193 (Ont. C.A.) at p. 209 and R v. Arcuri , (2001), 2001 SCC 54 , 157 C.C.C. (3d) 21 (S.C.C.)). Inferences to be drawn from circumstantial evidence need not be “compelling” or even “easily drawn” in order to be reasonable.
[ 10 ] If there are competing inferences, these are for the trier of fact to resolve. It is a jurisdictional error to weigh competing inferences or choose among them. ( R. v. Katwaru (2001), 2001 , 153 C.C.C. (3d) 433 (Ont. C.A.) per Moldaver J.A. at 444 and R. v. Munoz 2006 , 86 OR (3d) 134 at para 21 .)
[ 11 ] The judge’s role on an application for directed verdict is to say whether any facts have been established by evidence from which other matters may reasonably be inferred. The trier of fact determines whether on the basis of those facts, the matter ought to be inferred. ( R. v. Cinous , supra , at para 91 .) The court should review the entirety of the circumstantial evidence together with any inferences that could reasonably be drawn. ( R .v. Campbell 1999 , [1999] 140 C.C.C. (3d) 164 at para. 6 .)
[ 12 ] Where there is contradictory evidence that gives rise to competing inferences, the place to assess those competing inferences is at trial. ( R. v. Bogiatzis [2002] O.J. No. 736 at para. 25 .)
The Counts in the Indictment that are at Issue
[ 13 ] Section 99(1) of the Criminal Code deals with trafficking in weapons. Section 99(1) reads as follows:
- (1) Every person commits an offence who,
(a) manufactures or transfers, whether or not for consideration, or
(b) offers to do anything referred to in paragraph (a) in respect of a firearm, a prohibited weapon, a restricted weapon, a prohibited device, any ammunition or any prohibited ammunition knowing that the person is not authorized to do so under the Firearms Act or any other Act of Parliament or any regulations made under any Act of Parliament.
[ 14 ] In this case, the only issues in dispute are whether there was a transfer or offer to transfer the prohibited firearm.
[ 15 ] Section 84(1) of the Criminal Code provides that "transfer" means sell, provide, barter, give, lend, rent, send, transport, ship, distribute or deliver.
[ 16 ] Section 100 of the Criminal Code outlines the offence of possession for the purpose of weapons trafficking.
- (1) Every person commits an offence who possesses a firearm, a prohibited weapon, a restricted weapon, a prohibited device, any ammunition or any prohibited ammunition for the purpose of
(a) transferring it, whether or not for consideration, or
(b) offering to transfer it, knowing that the person is not authorized to transfer it under the Firearms Act or any other Act of Parliament or any regulations made under any Act of Parliament.
[ 17 ] In this case, the essential elements of this criminal offence are whether Taylor was in possession of a firearm for the purpose of transferring or offering to transfer it.
Part III. The Evidence
[ 18 ] The evidence of Officer McKenzie, one of the police officers who executed the search warrant, was that he observed Taylor looking out the window of his apartment. Officer Frederick noted that the male was on a cell phone while looking out the window. Shortly thereafter, both officers saw Taylor in the driveway of his apartment building at the front of his truck.
[ 19 ] According to Officer McKenzie, he observed two men in a white vehicle backed into an open parking space next to Taylor’s vehicle. They both got out of the vehicle and walked up to Taylor on the driver’s side of Taylor’s pickup truck. Taylor was holding something low down on the right side of his hip with both hands. Officer McKenzie saw Taylor hold a white cloth and use two hands to hold what he thought was a large object about 6 to 8 inches wide and 8 inches high. The two males were looking at what Taylor had by his hip. It took less than 30 seconds for this interplay to take place.
[ 20 ] Officer Frederick yelled “Police”. The two males went back to their vehicle. Officer McKenzie testified that he then yelled, “Police don’t move”. Officer McKenzie testified that Taylor did not obey any commands and continued to hold something in his hand. Officer McNeil came toward Taylor and Taylor dropped what he had and with his right foot and threw it under the vehicle. As it dropped, Officers McKenzie and McNeil testified that it made a metal clink. Officer McKenzie could see a firearm and yelled “Gun” to the rest of the team. That firearm was later seized by Officer McKenzie. A second firearm was seized by Officer McNeil from Taylor’s waist during the takedown. Officer McNeil testified that he seized a gun with a magazine and ammunition found in the magazine.
[ 21 ] It is agreed that the two items seized: the first from underneath Taylor’s vehicle and the second from his waist, are firearms. They are prohibited devices and continuity of this evidence is not in issue.
[ 22 ] Philips was one of the two males who arrived in the white vehicle. $930 was seized from Philips’ person when he was arrested at the scene.
Part IV. The Positions of the Parties
[ 23 ] Taylor’s counsel submits that Officer Mackenzie’s evidence does not support a reasonable inference that Taylor was there to transfer a firearm or firearms. Taylor’s counsel claims the whole interchange took less than 30 seconds and there was no reason for them to stand around looking at a firearm to transfer it. He suggests the other two males could have brought the firearm to Taylor or that Taylor was simply looking at a firearm with no intention to transfer. Taylor’s counsel points out that there is no evidence Taylor was carrying a firearm when he left his apartment and no transfer of a firearm from Taylor to one of the two men with him was observed.
[ 24 ] Crown counsel submits that the evidence of the officers provides a reasonable inference that this was not a chance encounter. Moreover there is direct evidence that two men came to Taylor, that Taylor had something in his hands, that he showed the thing in his hands to the two men who were with him, one of whom had $930 on his person, and that thereafter, the object fell to the ground and was found to be a gun which is a prohibited weapon.
[ 25 ] Crown counsel submits that a reasonable inference can be drawn from this evidence that Taylor was in possession of one or more firearms and that he was showing the firearm to the two men in order to offer to transfer it to one of them.
Part V: Application of the Law to the Evidence Adduced
[ 26 ] I believe that taken together, the evidence of Officers McKenzie, McNeil and Frederick and the Agreed Statement of Facts provide evidence that could reasonably support the inference that Taylor was (a) in possession of a firearm for the purpose of transferring or offering to transfer it, and (b) Taylor was offering to transfer a prohibited weapon without authorization.
[ 27 ] Officer McKenzie saw Taylor with a large object that dropped to the ground and he retrieved and discovered was a firearm. Officer McNeil testified that he found a second firearm on Taylor’s waist as he was being detained. Moreover, the Agreement Statement of Facts filed jointly by the parties provides that two firearms and ammunition were seized in connection with the investigation of Taylor. As such, a reasonable jury properly instructed could conclude that Taylor was in possession of two firearms.
[ 28 ] There is circumstantial evidence of an offer to transfer a firearm. Evidence was adduced by Crown witnesses that Taylor was on the telephone and shortly thereafter, he left his apartment to his truck and two men drove in and came over to Taylor. Taylor had something in his hands, Taylor showed the thing in his hands to the two men who were with him, one of whom had $930 on his person, and thereafter, the object fell to the ground and was found to be a prohibited firearm. These facts taken together could reasonably support the inference that Taylor was transferring or offering to transfer the firearm.
[ 29 ] For these reasons, I find that there is admissible evidence which could, if it were believed, result in a conviction on the three charges in question. For these reasons the application for a directed verdict on counts 10 through 12 is dismissed.
Thorburn J.
Released: November 14, 2012
COURT FILE NO.: CR-12-40000269-0000
DATE: 20121114
ONTARIO SUPERIOR COURT OF JUSTICE
ANDINE TAYLOR Applicant – and – HER MAJESTY THE QUEEN Respondent
RULING RE APPLICATION FOR DIRECTED VERDICT Thorburn J.
Released: November 14, 2013