Court of Appeal for Ontario

CITATION: R. v. Shaw, 2013 ONCA 37

DATE: 20130122

DOCKET: C52641

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

[1] The appellant argues two grounds of appeal, one on the trial judge’s Charter ruling, the other on her charge to the jury.

[2] On 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.

[3] On 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.

[4] The conviction appeal is, therefore, dismissed.

[5] The 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.

[6] Accordingly, the sentence appeal is also dismissed.

“John Laskin J.A.”

“M. Rosenberg J.A.”

“E.E. Gillese J.A.”