COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Degraw, 2015 ONCA 515

DATE: 20150708

DOCKET: C56271

Strathy C.J.O., MacPherson and Benotto JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Douglas Degraw

Appellant

Counsel:

Gabriel Gross-Stein, for the appellant

Joanne K. Stuart, for the respondent

Heard: July 6, 2015

On appeal from the convictions entered on December 16, 2011 by Justice Wolfram Tausendfreund of the Superior Court of Justice, sitting with a jury.

ENDORSEMENT

[1] The appellant was convicted of ten offences, including attempted aggravated assault, discharge of a firearm, and possession of a dangerous weapon, following a jury trial presided over by Tausendfreund J. of the Superior Court of Justice. He appeals his convictions.

[2] The charges arose out of an incident at an auto repair shop in Newbury on June 1, 2007. Two men, one with a handgun and the other with a sawed-off shotgun, arrived at the shop and terrorized the owner and two employees. The handgun discharged and a bullet grazed the owner’s head. The man holding the handgun kicked the bleeding owner in the face. He tried to lower the garage door, presumably to confine the three men, and he said to the three men “you guys are done”. The owner managed to run from the garage, the man with a handgun chased him, and a second shot was fired.

[3] The appellant raises three grounds of appeal.

[4] First, the appellant contends that the trial judge erred in two respects in the portion of his charge relating to identification evidence – he did not provide a sufficient caution on the use of eyewitness identification evidence generally and with respect to in-court identifications of the appellant specifically.

[5] We are not persuaded by this submission. The trial judge adequately cautioned the jury about the frailties of eyewitness evidence and pointed to the specific weaknesses of such evidence in this case. Moreover, the charge as a whole properly emphasized the dangers of relying on in-court identifications.

[6] Second, the appellant submits that the trial judge erred by telling the jury “[a]n operator of a motor vehicle is presumed to be in possession and control of the items in his car.” This submission relates to counts 7 and 8 in the Information/Indictment – occupy motor vehicle with firearm and possession of a loaded prohibited firearm.

[7] The appellant is correct in his assertion that there is no presumption of possession by a driver of items in a car: see R. v. Lincoln, 2012 ONCA 542, at para. 3. (We note that Lincoln was decided a year after the trial in this case.) However, the trial judge correctly emphasized that on count 7 “the real question for [the jury] to consider is whether Mr. Degraw knew that the shotgun was in the Monte Carlo”. On that question, the police evidence was that the shotgun was in plain view in the Monte Carlo automobile near the appellant who was driving. Moreover, there was evidence that Arsenjevic left the automobile with a shotgun, brandished the shotgun in the course of the assault, and returned to the vehicle with the shotgun. This was sufficient to fix the appellant with knowledge of the presence of the shotgun.

[8] With respect to count 8, even if a fair reading of the jury charge leads to the conclusion that the trial judge linked counts 7 and 8, thereby importing the possession presumption into count 8, this error is of no moment. The jury could not have found that the appellant was the gunman without necessarily finding that he was in possession of a loaded prohibited firearm.

[9] Accordingly, we would apply the proviso in s. 686(1)(b)(iv) of the Criminal Code to the minor error in the trial judge’s charge relating to count 7 and perhaps count 8.

[10] Third, the appellant asserts that the trial judge erred by giving the same charge on attempted murder in relation to both shots. He says that if the jury found, as it could have, that the first shot was an accident, then there was no basis on which the jury could have concluded that the appellant intended to hit the complainant with the second shot.

[11] We disagree. The appellant tried to close the garage door after he fired the first shot. He kicked the bleeding complainant in the face. He told the three men “you guys are done”, he chased the complainant out of the garage, he fired a second shot, and after he dropped his handgun he went back to the garage to get another weapon, a hammer. In these circumstances, even if the first shot was an accident, it was proper to instruct the jury on attempted murder in relation to the second shot.

[12] The appeal is dismissed.

“G.R. Strathy C.J.O.”

“J.C. MacPherson J.A.”

“M.L. Benotto J.A.”