ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CR-12-40000269-0000
DATE: 20130425
B E T W E E N:
HER MAJESTY THE QUEEN
S. Cressman, for Her Majesty the Queen
- and -
ANDINE TAYLOR
D. Midanik, for Andine Taylor
HEARD: April 15, 2013
Thorburn J.
REASONS FOR SENTENCE
I. THE CONVICTIONS
[1] At trial, Andine Taylor admitted that he was in possession of two firearms at the time of his arrest. He claimed he was in the process of returning them to an agent for the owner when he was arrested. Taylor claimed he took the firearms under duress. In the alternative, Taylor claimed that 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).
[2] In my judgment of December 20, 2012, I held that the Defence of duress did not apply because Taylor voluntarily exposed himself to the risk of involvement in criminal activity. Moreover, there was no air of reality to Taylor’s claim that he was under duress because, during the week 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 had satisfied me beyond a reasonable doubt that the defence of duress must fail. Moreover, the process of handing over the guns to Philips fit within the definition of transfer.
[3] Taylor was therefore found guilty of the following offences:
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](https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html>; 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](https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html>.
II. THE EVIDENCE REGARDING THE OFFENCES
[4] Philips was driving his car and the radiator hose was leaking. It could not be driven home. Martin therefore asked Taylor to hold onto the “two pieces” and he would pick them up the next day. Taylor understood that “pieces” referred to guns.
[5] Taylor said he believed Martin was involved in criminal activity and earned his living robbing people and selling drugs.
[6] Taylor testified that he told Martin he did not feel comfortable keeping the firearms in his apartment but Martin told him he had to hold onto them three times and then hung up the phone. Taylor did not call Martin back.
[7] Taylor took the bag, opened it and saw that it contained two guns and a bulletproof vest. Taylor did not check to see if the guns were loaded. Taylor said he thought that if he refused to take the guns, Martin would have him killed.
[8] Taylor said he kept the guns in his apartment for a week 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?”
[9] Later that day and the next day Taylor said he tried to contact Martin but was unable to reach him. Taylor did not try and reach Philips, although his number was in Taylor’s cellular telephone. After three or four days of trying to reach Martin, Taylor gave up and decided to wait for a few days for Martin to call him. Toward the end of the week Martin called him but Taylor said he missed the call.
[10] Taylor received no visits or threats from Martin during the week he had the guns in his possession.
[11] On the day of Taylor’s arrest, Taylor said he brought the bag down because Martin was going to retrieve it. Taylor wrapped the guns in paper towels. He went downstairs to the parking lot. Taylor did not bring the bag or bullet-proof vest he says he was given along with the guns, when he went to the parking lot to return the guns. One gun was tucked into his waistband and the other was in his pocket. He was in the process of handing the guns to Philips when he was arrested.
[12] Philips was found with $930 on his person at the time of his arrest.
[13] Officer McKenzie saw that Taylor was holding something low down on the right side of his hip with both hands. He observed that Taylor had a white cloth and used two hands to hold a large object about 6 to 8 inches wide and 8 inches high. The two males were looking at the object Taylor had. It took less than 30 seconds for this interplay to take place.
[14] Officer Frederick yelled “Police.” The two males who met Taylor 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, kicked 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.
[15] Taylor and the other two men were arrested. The firearm on the ground was 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 was found in the magazine. It is agreed that the two firearms seized are prohibited devices.
[16] Taylor said his wife told him that Martin threatened to have Taylor and his whole family “wiped out” if he testified. Taylor’s mother told him that Martin said if Taylor brought up Martin’s name in court Martin would have all of them wiped out, including Mr. Taylor. Taylor received this information after the trial commenced and before choosing to testify at this trial.
[17] Taylor has no criminal record and has never been charged with a criminal offence before these charges were laid.
THE PRINCIPLES OF SENTENCING
[18] Section 718 of the Criminal Code, R.S.C., 1985, c. C-46 provides that, in sentencing a person convicted of offences, the following objectives must be considered:
(1) denunciation of unlawful conduct;
(2) deterring the offender and others from committing offences;
(3) separation of offenders from society where necessary;
(4) rehabilitation of offenders;
(5) reparations for harm done to victims or to the community; and
(6) promotion of a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community.
[19] The sentence imposed must be proportionate to the gravity of the offence and the degree of responsibility of the offender.
[20] A sentence should be increased or reduced to account for aggravating or mitigating circumstances relating to the offence or the offender. Similar sentences should be imposed on similar offenders for similar offences committed in similar circumstances.
[21] A person cannot be convicted of two offences where both arise out of the same facts and in substance only one “crime” has been committed. Where such offences are committed, a conditional stay on the lesser charge will be entered.[^1] Consecutive sentences may however be imposed where the offences are temporally linked but constitute invasions of different legally protected interests.[^2]
[22] Where there is a sentence for multiple offences, the principle of totality requires the court to craft a global sentence that is not excessive.[^3] If the total sentence is excessive the court must adjust the sentence so that the total sentence is proper.[^4] This can be done either by adding the individual sentences and then adjusting accordingly[^5] or by making a global sentence and calculating individual sentences from that number.[^6]
[23] Sentencing ranges are useful in ensuring that the parity principle is met because they provide guidelines to trial judges who must impose similar penalties for similar offences of a similar nature involving similar offenders.[^7] However, they are guidelines only.
THE POSITIONS OF THE PARTIES
[24] Taylor’s counsel submits that a global sentence of three to three and one-half years is appropriate given Taylor’s good prospects for rehabilitation, the fact that he has no prior record, a solid employment record and skill and the fact that this was a “fleeting” interaction with police.
[25] The Crown submits that denunciation and deterrence are primary concerns in this case and that a sentence of five years would be appropriate. She notes that Taylor is not a youthful offender, that he was found with two loaded firearms and that he did not comply with police commands when requested to do so in a public place.
SENTENCING DECISION
[26] I have considered the principles of sentencing set out in the Criminal Code and have applied those considerations to the facts in this case. I have also considered the aggravating and mitigating circumstances, Taylor’s prospects for rehabilitation, and the case law that addresses the appropriate range of sentences for offences of this nature committed in similar circumstances by similar offenders.
[27] General denunciation and deterrence are of primary importance when dealing with firearms offences. Protection of the public must be safeguarded.[^8]
[28] Moreover, there is a mandatory minimum sentence of three years for possession of a loaded restricted firearm, without a licence or registration certificate where the Crown elects to proceed by way of indictment.
[29] The aggravating factors in this case are as follows:
(a) two firearms were found in this case. A loaded firearm was found on Taylor’s person that was immediately accessible;
(b) the firearms were located in a parking lot which is a public place;
(c) Taylor did not immediately obey police commands not to move. Instead there was an aggressive take-down while he had a loaded and concealed firearm on his person; and
(d) he should have known the firearms were for an illegal purpose as they were in a bag with a bulletproof vest.
[30] The mitigating circumstances in this case are as follows:
(a) Taylor has a consistent and unblemished employment record; and
(b) he has no criminal record.
[31] Taylor chose to make no statement during the sentencing proceeding nor did his counsel address the issue of remorse. Lack of remorse is not an aggravating factor.[^9] It is simply the absence of a factor which can sometimes mitigate the seriousness of an offence.
[32] Taylor does not have the benefit of a guilty plea nor is he a youthful offender.
[33] It is agreed that as a thirty two year old man with no prior criminal record and a very positive employment history, Taylor’s prospects for rehabilitation are good.
[34] Both counsel agree that in accordance with the principle that a person cannot be convicted of two offences where both arise out of the same facts and in substance only one “crime” has been committed, (the Kienapple[^10] principle), the offences listed in counts 2, 3, 5, 6 and 10 should be stayed.
[35] In keeping with the requirement that like offenders in like circumstance should be treated in a consistent manner, I have examined the cases referred to me by counsel. In R. v. McKenzie 2011 ONCA 42, [2011] O.J. No. 156 (C.A.) the court imposed a sentence of six years’ imprisonment where the accused was part of a high risk takedown wherein a fully loaded automatic machine pistol was found. I note that this case was decided before the implementation of the Tackling Violent Crimes Act and resultant changes to the sentencing provisions for firearms offences.
[36] In R. v. Whyte [2011] O.J. No. 98 (S.C.J.) the court imposed a sentence of 6 ½ years where a youthful offender was convicted of six firearms offence including having three handguns in the trunk while a passenger in a motor vehicle and a fourth in the centre console of the vehicle. Two of the firearms were loaded and two were not. The youth had a prior conviction. However, he had demonstrated remorse and made a number of significant admissions that resulted in a shortened and expedited trial.
[37] In R. v. Harutyunyan 2012 ONSC 58, [2012] O.J. No. 177 (S.C.J.) a 25 year old offender received a sentence of four years for possession of a loaded handgun. He attempted to flee but was arrested. A loaded firarm fell from his trousers. He had no prior record and while on bail, he had taken a number of steps to rehabilitate himself and contribute to the community.
[38] In R. v. Scarlett 2013 ONSC 562, [2013] O.J. No. 644, a youthful offender with no prior record received a three year sentence for possession of a loaded handgun with the serial number rubbed off, found on his person along with a small quantity of cocaine.
[39] Finally, in R. v. Nur 2011 ONSC 4874, [2011] O.J. No. 3878, a 19 year old first offence who pleaded guilty to possession of a loaded prohibited firearm just outside a community centre and fled from police received a sentence of 40 months.
[40] Based on the treatment of offenders in similar cases, and the circumstances of this offender in this case, I believe the appropriate global sentence is 4 1/2 years. I take particular note of the fact that Taylor had two loaded firearms on his person in a public place (although there were few if any people present at the time he was apprehended), there was a takedown by police, albeit shortlived, and that notwithstanding this, Taylor has a previous unblemished record and good prospects of rehabilitation.
[41] Counsel agree that Taylor should be awarded 9 months’ credit for the four days spent in custody and three years spent on house arrest.
[42] Finally, there will be an order imposed to prohibit Taylor from possessing weapons for life pursuant to section 109 of the Criminal Code, a DNA order, and a forfeiture order regarding the firearms and ammunition seized at the time of Taylor’s arrest.
Thorburn J.
Released: April 25, 2013
Footnotes
[^1]: Kienapple v. R., 1974 14 (SCC), [1975] 1 S.C.R. 729
[^2]: R. v. Houle, 2008 ONCA 287
[^3]: R. v. M. (C.A.), 1996 230 (SCC)
[^4]: R. v. D.S.K., 2005 SKCA 18
[^5]: R. v. Newhook, 2008 NLCA 28
[^6]: R. v. Lombardo, 2008 NSCA 96
[^7]: R. v. Stone, 1999 688 (SCC)
[^8]: R. v. Sturge, [2001] O.J. No. 3923 (C.A.); R. v. Popovics, [2005] O.J. No. 2456 (C.A.)
[^9]: R. v. Ambrose, 2000 ABCA 264
[^10]: R. v. Kienapple, supra note 1