



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
    Taylors 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
    Shipmans return to Walpole Island, the three boxes were loaded into the trunk
    of Taylors 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. Goodens DNA was subsequently
    detected on some of the clothing.

[11]

Within
    a short time, the police intercepted Taylors 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 Crowns 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 Taylors rental car, among other matters, as circumstantial
    evidence of the appellants guilt.

III.      Goodens 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 Shipmans services arose.  She professed to have no
    knowledge as to how the firearms came to be in the trunk of Taylors rental
    car.

[14]

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

[15]

The
    trial judge accepted Shipmans 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 Taylors 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 Shipmans 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] 1 S.C.R. 811. She contends that the trial
    judge erred:
(1) by failing to apply the correct level of scrutiny
    to Shipmans testimony; (2) by restricting her examination of the evidence
    potentially corroborative of Shipmans testimony to only that evidence
    supportive of the prosecutions case; (3) by relying on inadmissible or
    rejected evidence to bolster Shipmans credit and reliability; and (4) by
    ignoring or misapprehending evidence that undermined Shipmans credibility and
    enhanced that of Gooden.

[17]

In
    my view, Goodens attack on the trial judges treatment of Shipmans 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 Shipmans 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 Shipmans 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 Shipmans 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 judges use of corroborative
    evidence in relation to Shipmans evidence.

[22]

It
    is true that the trial judge relied on some aspects of Goodens testimony to
    corroborate parts of Shipmans evidence, even though she rejected Goodens
    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 Goodens evidence. 
    The trial judges rejection of Goodens 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 Goodens testimony
    that corroborated Shipmans evidence.

[23]

More
    importantly, in testing Shipmans credibility and the reliability of his
    testimony, the trial judge relied on various sources of corroborative evidence,
    in addition to pertinent aspects of Goodens testimony. These included the physical
    evidence of the firearms and alcohol found by the police in the trunk of
    Taylors rental car shortly after Shipmans 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 Goodens 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 Shipmans testimony.

[24]

Gooden
    especially challenges the trial judges reliance on the text messages for
    corroboration of Shipmans 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, Goodens 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,
    Goodens 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 Goodens
    knowledge of and involvement with the smuggling of the firearms.

[27]

At
    the end of the day, the Crowns 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 Crowns case against her. I see no basis for
    appellate interference with Goodens convictions on the firearms offences.

IV.     Blairs and Taylors
    Conviction Appeals

[28]

I
    reach a different conclusion, however, concerning Blairs and Taylors 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 judges 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 judges 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 Taylors
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]

Blairs
    and Taylors main contention is that the trial judges 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 judges reasons:
    (1) be reasonably intelligible to the parties; (2) reveal the foundations of
    the trial judges 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 judges 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 judges 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
    Shipmans evidence that he was merely the courier for all items in the trunk of
    the vehicle, including the general corroborative nature of Ms. Goodens own
    evidence about the matter, Mr. Shipmans 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. Goodens 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 Crowns 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
    Crowns 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] 1
    S.C.R. 679, at paras. 3 and 4, even where the Crowns case rests entirely on
    circumstantial evidence, [t]he Crown must adduce
some
evidence of
    [the accuseds] 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 Shipmans evidence, the independent sources of
    corroboration that he was merely the courier for the items found in the trunk
    of Taylors car, and the general corroborative nature of Ms. Goodens own
    evidence about the matter, to ground her acceptance of the Crowns 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 accuseds
    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
    Blairs and Taylors appeals.  The trial judge found that both accused assisted
    Gooden and were present when the firearms were placed in the trunk of Taylors
    car. In Blairs 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 Blairs and Taylors 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 judges reasons specific to Blair and Taylor, quoted above,
    adverts to the necessary mental element for the firearms offences. The balance
    of the trial judges reasons contains no mention, express or implied, of
    Blairs or Taylors
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 Goodens 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]

Blairs
    and Taylors 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 Goodens 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 judges 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 Goodens intention to smuggle firearms.

[45]

Blair
    and Taylor characterize these uncertainties as material deficiencies in the
    trial judges reasons,
i.e.
as 
Sheppard
errors. They
    essentially contend, not that the trial judges 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 judges failure to address and come to grips with
    Blairs and Taylors requisite mental states or
mens rea
regarding the
    firearms is an error of law.  Her failure to consider and resolve the issue of
    Blairs and Taylors knowledge or wilful blindness of Goodens 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 judges 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 judges 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 judges 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 Crowns 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
    Blairs intention to smuggle guns.

[50]

I
    would not accede to this submission. During oral argument before this court,
    Blairs counsel pointed out that there was no proof at trial of Blairs 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 Blairs 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 Crowns 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 Taylors
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
    Goodens 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.      Taylors 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 Taylors conviction appeal succeeds, leave to appeal sentence should be
    granted and Taylors sentences on the alcohol-related charges should be
    adjusted. She submits that, in those circumstances, a $500 fine is an
    appropriate disposition for Taylors alcohol-related convictions.

[56]

As
    I have already explained, I would allow Taylors conviction appeal on the
    firearms offences.  In light of the Crowns concession, described above, it therefore
    falls to this court to fashion a fit sentence on Taylors 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 Taylors 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 Taylors 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 Goodens conviction appeal. I would allow
    Blairs and Taylors 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.


