Court of Appeal for Ontario
BEFORE: Laskin, Rosenberg and Gillese JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Richard St. Calvert Shaw
Appellant
COUNSEL:
Sam Scratch and Theodore Sarantis, for the appellant
Matthew Asma, for the respondent
HEARD AND RELEASED ORALLY: December 14, 2012
On appeal from the conviction entered on January 25, 2010 and the sentence imposed on March 8, 2010 by Justice Janet M. Wilson of the Superior Court of Justice, sitting with a jury.
ENDORSEMENT
1The appellant argues two grounds of appeal, one on the trial judge’s Charter ruling, the other on her charge to the jury.
2On the Charter ruling the appellant submits that the officers did not have reasonable grounds to open the black bag (which contained cocaine) therefore, their pat-down search went beyond what Mann authorizes and was unreasonable. We do not accept this submission. At para. 71 of her Charter ruling, the trial judge accepted the evidence of Officer Gould and made findings that he had, both subjectively and objectively, reasonable grounds to open the bag because of the concern it may have contained a weapon. These findings were available on the evidence. Thus, this ground of appeal must fail.
3On the jury charge, the appellant submits that the trial judge did not properly explain constructive possession. He points to a passage in her charge at pp. 74-75 where she appeared to conflate the elements of knowledge and control. In other circumstances, a charge such as this might be an error, but in this case the charge was appropriate. The gun was in plain view in the console of the car. Thus, the only issue for the jury on this aspect of the case, and the issue counsel argued in their closing submissions, was whether the Crown had proved beyond a reasonable doubt that the appellant had control of the car. As we find no error in the charge, this ground of appeal must fail.
4The conviction appeal is, therefore, dismissed.
5The appellant also appeals his sentence but, as he acknowledges that the sentence was within an appropriate range, we have no basis to interfere with it.
6Accordingly, the sentence appeal is also dismissed.
“John Laskin J.A.”
“M. Rosenberg J.A.”
“E.E. Gillese J.A.”