r v. Tasha Arlika TAYLOR, 2018 QCCQ 13474

R. c. Taylor 2018 QCCQ 13474 JT1383 COURT OF QUÉBEC CANADA PROVINCEOFE QUÉBEC DISTRICT OF MONTRÉAL Criminal Division N : 500-01-137291-164 DATE : June 26, 2018 ______________________________________________________________________ PRESIDING : THE HONOURABLE CHRISTIAN M. TREMBLAY, Q.C.J. ______________________________________________________________________ HER MAJESTY THE QUEEN Prosecutor v. Tasha Arlika TAYLOR Accused ______________________________________________________________________ WRITTEN VERSION OF THE JUDGMENT RENDERED VERBALLY ON JUNE 20, 2018 [1] ______________________________________________________________________ [ 1 ] Mrs. Taylor faces two counts: fraud (s.380

(1) a) Cr. C .) and possession of identification documents that purports to relate, in whole or in part, to another person (s. 56.1

(1) Cr. C .). ADMISSIONS [ 2 ] The identification of Mrs. Taylor is admitted. [ 3 ] The value of the camera she tried to purchase on February 18, 2016 is $8,577.12 including taxes. [ 4 ] The Driver’s Licence and the Health Insurance Card (RAMQ) seized by the police from the accused are fake documents. [ 5 ] Mrs. Taylor does not contest she went to L.L. Lozeau, a retail store that specializes in equipment such as camera, video camera, etc. On February 17, 2016, she did not finalize the purchase but an order was completed (P-3) [2] .

The day after, she tried to finance the purchase of a camera with the assistance and financing program of Visa Desjardins known as Accord D (P-2). She produced the fake driver’s licence (P-1a) and the fake health insurance card (P-1b). On both identity documents there is a picture of Mrs. Taylor. The documents are issued in the name of Sara Di Rubbo. [ 6 ] After verifying the identity documents submitted, the employees raised serious doubts about the authenticity of the two cards. They called the police who, after investigation, proceeded to arrest Mrs. Taylor. [ 7 ] The constitutional rights of Mrs.

Taylor are not an issue here. THE DEFENCE [ 8 ] For all practical purposes, Mrs. Taylor admits the essential elements of the offences charged in the two counts. But, she claims that she acted under duress. She says that she was forced to defraud L.L. Lozeau with fake ID cards because of her boyfriend Michael which threatened her. Michael claimed that she owed him money because she refused to prostitute herself when she was in Mississauga, Ontario. [ 9 ] My former colleague Mr. Justice Healy wrote in R. v.

Lackman [3] : Duress in our law is an excuse for the commission of a crime by a person under a severe threat of personal violence by another. When it applies it affords an acquittal even though it does not negate either the actus reus or the mens rea of the offence charged. Like another excuse or justification in the criminal law, it cannot be considered unless there is a factual basis for it in the evidence before the court. As the courts have said for some time, a claim of duress cannot be considered unless the evidence gives it an "air of reality." If it does, it

cannot only compel an acquittal if the evidence raises a reasonable doubt on the whole of the case. The only question to resolve in this case is whether Mr. Lackman's evidence of duress raises a reasonable doubt on the whole of the case. [ 10 ] In the present case, the issue is the same. TAYLOR’S TESTIMONY [ 11 ] In February 2015, Mrs. Taylor met a man named Michael. She does not know his family name. She met him outside of the Blizzarts bar on Saint-Laurent Boulevard in Montreal. Michael is from Montego Bay, Jamaica, and he lived in Montreal South Shore, but she does not know where.

She has never been to his place. [ 12 ] Michael became her boyfriend. He was nice to her. They saw each other approximately once a week. It was random. [ 13 ] At one point, Michael told her he is a drug dealer. He was selling marijuana and cocaine as well. He regularly went to Toronto for his business. [ 14 ] During summer or fall 2015, Michael proposed her to work as a prostitute in Calgary. She declined said proposal. [ 15 ] A few months later, he proposed her a free trip to Dominican Republic. He wanted her to act as a drug mule.

She told him she did not want to. [ 16 ] Late summer or during fall 2015, he told her that he was pulled over on highway 401 and the police found a gun in his car. The gun had been used in a murder. He denied having killed somebody. [ 17 ] One day, he came over and he said he needed to stay over at her place because the police was at his house. [ 18 ] At another occasion, when Michael was coming to her apartment, he said he had been pulled over by the police and they found marijuana on him and a gun. [ 19 ] At the end of 2015, she moved Michael’s jacket because she wanted to seat on the couch.

She noticed the jacket was heavy. She asked him why the jacket was so heavy. He said it was because he has a gun inside. [ 20 ] In December 2015, Mrs. Taylor learned that her aunt is dying. Her aunt was at the Roswell Cancer Institute of Buffalo. [ 21 ] Mrs. Taylor wanted to go see her aunt. She was close to her. Michael offered his support. He drove her to the bus station. [ 22 ] On her way back, her mother decided to visit some friends in Toronto. She also wanted to meet old friends. Michael contacted her and he offered to sleep at his apartment in Toronto.

At the last minute, she learned the apartment was not in downtown Toronto but in Mississauga. He said he was on his way and that he would meet her there. Her mother drove her to that apartment. It was late at night. [ 23 ] Mrs. Taylor met a man at the condo. He let her enter into the apartment. He explained to Mrs. Taylor he will do a photo shoot with her. Sexy pictures because he has an entertainment company with his partner. He let her understand she will do sex work in one of the condo’s room.

He explained her the rules with clients, and so on. [ 24 ] After she said she refused to do that, the man told her she could stay over for the night but she has to leave in the morning. When she woke up, there was three girls there, dressed in a very sexy way. [ 25 ] When she came back to Montreal, she was confused and angry. She wanted to discuss the situation with Michael but he avoided to answer her questions. He simply replied that she had made him lose money, so she was indebted to him. She cost him a lot of money. [ 26 ] In January 2016, their relationship changed.

She ceased to sleep with him and tried to see him less often. When he came to her apartment, he repeated she had a debt to repay. He also said he wanted her to go buy a camera. She would have to work for him now. [ 27 ] At the end of January or early February 2016, Michael introduced her to another man. The two men discussed a plan to get an expensive camera from L.L. Lozeau. They would make ID cards for her. They explained her the plan. They showed her the picture of the camera they expected she get to repay her debt. She initially refused to participate, but Michael put pressure on her.

He informed her not to talk to anybody about this plan. He said: “You know I carry a gun …” He also said: “You know what happens to snitches, right? Snitches get stitches”. If she goes to the police, she would have a price to pay. She believed that could be her life. [ 28 ] She was afraid. She did not know what to do. He knew where she lived. According to her, he always carried a gun. She presumed he knew where her mother live because she gave him her mother’s address when her aunt had passed away. She was scary for her mother and herself.

She was suffering from depression as a result of her aunt’s death, she was not working a lot and it was winter … [ 29 ] Because Michael is Jamaican and in Jamaica, according to her, criminals kill informers and their families, she presumed the police cannot protect her. [ 30 ] Michael and his body asked her to get two passport photos of her for fake ID cards. She was supposed to use these ID cards to “buy” the camera from L.L. Lozeau. [ 31 ] A couple of days before the “purchase”, Michael came to her apartment and he gave her information she had to memorize. She put said information in her iPhone.

He also gave her some details about the camera he wanted. He explained to her how to proceed with the application for the financing. After her arrest, she admitted she deleted the information on her iPhone.

[ 32 ] Michael might have said to her he will give her $100 for her participation and after the “purchase” of the camera her debt will be refunded. [ 33 ] Michael picked her up and his body. They stopped somewhere because the ID cards were not to his satisfaction. After that, they went to the store. [ 34 ] While in the store she was very nervous. She knew they were waiting outside. Michael already said to her he was carrying a gun in the trunk of his car. [ 35 ] After her arrest, Michael tried to reassure her. He said everything will be fine. He has a lawyer for her. Nothing can happen to her.

When she insisted to get the phone number of his lawyer, she realised he gave her the phone number of the Legal Aid. Then she could not contact him anymore. She felt depressed. This is why she did not say anything about Michael. [ 36 ] Concerning the description of Michael she captured two pictures from Michael’s IPhone (D-1, D-2). Michael is about 6’2” (1.9

m) and his is slim. She is smaller than him. The other man was taller and bigger than Michael. His face was very serious and he looked intimidating but he did not speak much. The man is francophone. She saw him twice very briefly. [ 37 ] She said Michael had never been physically violent with her. Except for the “purchase” of the camera, he never threatened her. DURESS DEFENCE [ 38 ] The defence of duress is a Common Law Defence. This defence has been codified at s. 17 of the Criminal Code : 17.

A person who commits an offence under compulsion by threats of immediate death or bodily harm from a person who is present when the offence is committed is excused for committing the offence if the person believes that the threats will be carried out and if the person is not a party to a conspiracy or association whereby the person is subject to compulsion, but this

section does not apply where the offence that is committed is high treason or treason, murder, piracy, attempted murder, sexual assault, sexual assault with a weapon, threats to a third party or causing bodily harm, aggravated sexual assault, forcible abduction, hostage taking, robbery, assault with a weapon or causing bodily harm, aggravated assault, unlawfully causing bodily harm, arson or an offence under sections 280 to 283 (abduction and detention of young persons). [ 39 ] The exclusions enumerated at s. 17 are not applicable here. [ 40 ] In 2013, the Supreme Court in R. v.

Ryan [4] took advantage to clarify the applicable rules for this defence: [81] The defence of duress, in its statutory and common law forms, is largely the same. The two forms share the following common elements: • There must be an explicit or implicit threat of present or future death or bodily harm. This threat can be directed at the accused or a third party. • The accused must reasonably believe that the threat will be carried out. • There is no safe avenue of escape.

This element is evaluated on a modified objective standard. • A close temporal connection between the threat and the harm threatened. • Proportionality between the harm threatened and the harm inflicted by the accused. The harm caused by the accused must be equal to or no greater than the harm threatened.

This is also evaluated on a modified objective standard. • The accused is not a party to a conspiracy or association whereby the accused is subject to compulsion and actually knew that threats and coercion to commit an offence were a possible result of this criminal activity, conspiracy or association. [ 41 ] The defence has the burden to introduce a plausible evidence .

As the Supreme Court wrote in Latimer [5] : The question is whether there is sufficient evidence that, if believed, would allow a reasonable jury — properly charged and acting judicially — to conclude that the defence applied and acquit the accused. [ 42 ] If the evidence is plausible for every element of the defence, than the Crown has the burden to proof, beyond a reasonable doubt, one of the element is not fulfilled [6] . [ 43 ] In light of the evidence, we will discuss these elements in turn. (

a) Threat of death or bodily harm [ 44 ] At paragraph 63 of Ryan , judges Lebel and Cromwell wrote for the majority: [63] Therefore, in order to fulfill this first requirement of the common law defence of duress, there must have been an explicit or implicit, present or future threat of death or bodily harm, directed at the accused or a third person. [ 45 ] From the testimony of Mrs. Taylor, it is not difficult to consider she has been threatened of bodily harm by Michael. [ 46 ] The Crown considers Mrs. Taylor’s testimony not credible. Her version of facts is implausible. The story she tells does not make sense.

[ 47 ] The Court is not naïve. Many aspects of Mrs. Taylor’s testimony are strange and hard to believe, but the Court has the privilege to consider some parts of Mrs. Taylor’s testimony as not credible [7] . [ 48 ] Concerning the first element, the Crown doubts the existence of Michael, but did not prove, beyond reasonable doubt, he never exists or that he did not threaten Mrs. Taylor. [ 49 ] The burden is on the Crown’s shoulders to prove, beyond reasonable doubt, that one of the element of the defence of duress is not fulfilled.

It is not to the defence to prove, beyond reasonable doubt, each element of the defence. [ 50 ] Mrs. Taylor filed two pictures of Michael coming from his iPhone (D-1 & D-2). The Court considers the existence of Michael had been demonstrated here. (

b) Reasonable belief that threat will be carried out [ 51 ] This element is analyzed on a modified objective basis, that is, according to the test of the reasonable person similarly situated [8] . [ 52 ] The subjective belief of Mrs. Taylor must be reasonable given the circumstances and the personal characteristics of the accused. [ 53 ] Mrs. Taylor said she was afraid for her mother and herself, but Michael never threatened Mrs. Taylor’s mother. She presumed he could cause harm to her mother, but it is her assumption. [ 54 ] Michael was a friend of her. He had never been physically violent with her.

Before the Mississauga incident, he had never threatened her even if she refused his proposal to act as a prostitute or as a drug mule. [ 55 ] She believed Michael has a gun with him because he is a drug dealer, but she never saw a weapon. [ 56 ] She did not testify she saw Michael being violent with someone. [ 57 ] He said he has been intercepted at least two times by the police. Once, he had a gun related to a murder and the second time the police found marijuana and a gun on him. Then, how is it that Michael had never been arrested? Why he had never been preventively detained for such offences?

There is nothing in the evidence to answer these interesting questions. A reasonable person similarly situated would have questioned the credibility of Michael. It does not sounds serious … [ 58 ] She described Michael has a criminal, but without his family name, it is difficult to confirm that this was the case. It is not possible to know if he had a bad reputation or not. [ 59 ] Mrs. Taylor attended him almost a year. She saw him at least once a week. They slept together. Should she not know him better than that? The only things she testified about him concern general information.

She is not specific about Michael. He looks more like a character than someone she really knows. [ 60 ] She also based her belief on Michael’s origin. According to her, in Jamaica, they killed informers and their family. This statement is totally free. This is an ethical prejudice.

There is no evidence to support this unjustified belief. [ 61 ] A reasonable person similarly situated would have no reasonable belief that threat will be carried out. [ 62 ] It is also important to recall what the Supreme Court wrote in Ryan [9] : (…) the accused cannot reasonably believe that the threat would be carried out if there was a safe avenue of escape and no close temporal connection between the threat and the harm threatened. [ 63 ] We will see there was a safe avenue of escape and no close temporal connection between the threat and the harm threatened. [ 64 ] One last observation concerning the second element.

The Court does not believe she was nervous when she was in the store. The L.L. Lozeau’s employees, Mr. Nokovitch and Mrs. Caron, affirmed they saw Mrs. Taylor and she was really calm, even in the presence of the police. The credibility of these two witnesses has not been challenged by the defense. The Court has no doubt they told the truth. They have no interest in lying about Mrs. Taylor’s state of nervousness when she was in the store. (

c) No safe avenue of escape [ 65 ] In Ryan [10] , judges Lebel and Cromwell wrote: In order to rely on the defence, the accused must have had no safe avenue of escape, as measured on the modified objective standard of the reasonable person similarly situated. [ 66 ] At paragraph 65, judges specify: (…) In other words, a reasonable person in the same situation as the accused and with the same personal characteristics and experience would conclude that there was no safe avenue of escape or legal alternative to committing the offence.

If a reasonable person similarly situated would think that there was a safe avenue of escape, the requirement is not met and the acts of the accused cannot be excused using the defence of duress because they cannot be considered as morally involuntary. [ 67 ] After the Mississauga event, she said Michael changed his behavior towards her. He insisted that she repay her debt. He said she will have to work for him. He referred to the purchase of a camera. [ 68 ] At the end of January or beginning of February, Michael started the planning of the “purchase” of the camera. She knew he will

ask her to do something illegal. Michael told her she will need fake ID cards. This is why he asked her to obtain two passport pictures of her. [ 69 ] The “purchase” occurred on February 17 and 18. Michael and his friend took around two weeks to prepare the fraud. Mrs. Taylor had enough time to leave Montreal for Toronto, a city where she has friends to hide her for a while. [ 70 ] The evidence does not demonstrate Mrs. Taylor had important links with Montreal, as a stable job, responsibilities, a family, etc. Her mother lived near Niagara Falls.

It would have been easy for her to leave Montreal to escape from Michael. [ 71 ] Mrs. Taylor said she was depressed after her aunt’s death. The Court considers it is not a serious reason here not to react. We have no medical report to evaluate how serious was this so-called depression. [ 72 ] She also said she was afraid of Michael. The Court does not believe she was so afraid. She continued to see Michael many times at her apartment in January and February. They watch TV together. They listen music. They talk together. They spend time together as friends do. [ 73 ] Mrs.

Taylor was not vulnerable as she hopes to let us believe. [ 74 ] She also had enough time to call the police and inform them what Michael and his friend asked her to do. When she was in the store, she was alone with employees. She went to the store twice. [ 75 ] For the reasons mentioned previously, the Court considers that her affirmation, she does not believe the police can do something for her because Michael is a Jamaican, is a pure pretext.

d) Close temporal connection [ 76 ] One more time, it is important to refer to the Supreme Court in Ryan [11] : [68] The first purpose of the close temporal connection element is to ensure that there truly was no safe avenue of escape for the accused. If the threat is too far removed from the accused’s illegal acts, it will be difficult to conclude that a reasonable person similarly situated had no option but to commit the offence.

The temporal link between the threat and the harm threatened is necessary to demonstrate the degree of pressure placed on the accused. [69] The second purpose of the close temporal connection requirement is to ensure that it is reasonable to believe that the threat put so much pressure on the accused that between this threat and the commission of the offence, “the accused los[t] the ability to act freely” ( Ruzic , at para. 65 ). It thus serves to determine if the accused truly acted in an involuntary manner. [ 77 ] In this case, Michael threatened Mrs. Taylor many days before February 17, 2016.

She did not testified Michael repeated his threat when she was in the car or a few minutes before she went to L.L. Lozeau store. [ 78 ] It is also important to recall that Michael never threatened Mrs. Taylor’s mother. [ 79 ] She referred to Michael’s threats as vague threats of possible harm in the future. It is not sufficient. The freewill of Mrs. Taylor was not neutralized by the vague threats.

e) Proportionality [ 80 ] In this case, it is a non-issue aspect. It is easy to affirm that the harm threatened is greater than the harm caused.

f) Participation in a Conspiracy or Criminal Assertion [ 81 ] Mrs. Taylor denied having been involved in the conspiracy or having been associated to Michael and his friend. [ 82 ] The Crown did not question this element. CONCLUSION [ 83 ] Mrs. Taylor did not prove she was victim of duress. The Crown proved, beyond reasonable doubt, the defence of duress cannot find application here. [ 84 ] The evidence admitted by the accused supports all essential elements of both offences. FOR THESE REASONS, THE COURT: DECLARES Mrs. Taylor guilty of the two counts contained in the denunciation.

_________________________________ CHRISTIAN M. TREMBLAY, Q.C.J. Me Laurent-Alexandre Duclos-Bélanger Directeur des poursuites criminelles et pénales Attorney for the Prosecutor Me Dahlia Gaiptman Aide Juridique de Montréal Attorney for the Accused Dates of hearing: March 1 st , 2018, January 10 th , 2018