Court of Appeal for Ontario

Date: 2018-10-16 Docket: C62505

Judges: Simmons, Rouleau and Huscroft JJ.A.

Between

Her Majesty the Queen Respondent

and

Nathan Holdsworth Appellant

Counsel

Matthew Gourlay, appearing as duty counsel Nathan Holdsworth, in person Jessica Smith Joy, for the Crown

Heard: October 4, 2018

On appeal from the conviction entered on April 11, 2016, and the sentence imposed on July 15, 2016, by Justice F.E. McWatt of the Superior Court of Justice, sitting with a jury.

Reasons for Decision

[1] The appellant pleaded guilty to several charges relating to events that occurred on October 24, 2014, including possession of a loaded prohibited firearm. Following a jury trial on charges relating primarily to events that occurred on October 21, 2014, the appellant was acquitted of attempted murder but found guilty of discharging a firearm with intent to endanger life and pointing a firearm. The appellant was sentenced to ten years' imprisonment less 32 months' credit for pre-sentence custody, leaving a total sentence of 7 years' 4 months' imprisonment.

[2] The October 21, 2014 charges related to a shooting that occurred in an apartment. The victim did not testify at trial, but medical evidence indicated he was shot in the chest. Along with the victim, the appellant was present in the apartment with three other men. Two of the men gave evidence indicating the appellant was armed with a revolver with a brown handle at the time of the shooting. Their evidence also implicated him in the shooting. The appellant did not testify at trial. However, he took the position through counsel that the shooter was one of the two witnesses who implicated him and who was standing behind the victim at the time of the shooting.

[3] On a preliminary severance motion brought by the appellant, the Crown took the position that the gun the appellant had in his possession on October 24, 2014, namely, a black semi-automatic handgun with a brown handle, could have been the same gun witnesses said he had on October 21, 2014. The Crown submitted that that possibility had to be left with the jury and, if accepted, could be used to substantiate the appellant's involvement in the shooting – whereas if the jury did not accept that possibility, any prejudice arising from the evidence of the appellant's possession of a gun of October 24, 2014 could be addressed by a clear propensity instruction from the trial judge.

[4] The evidence emerged somewhat differently at trial. Based on the trial evidence, the Crown submitted to the jury that the semi-automatic handgun the appellant had on October 24, 2014 was "descriptively identical" to a gun the victim had on October 21, 2014. At trial, at least one witness (the witness the appellant asserted was the shooter) testified that following the shooting, the appellant searched the victim, took his handgun and gave it to a third man who later gave it back to the appellant.

[5] On appeal, duty counsel, on behalf of the appellant, argues that the trial judge erred by failing to give a limiting instruction with respect to the use the jury could make of the evidence of the appellant's possession of a handgun at the time of his arrest. In his submission, the jury ought to have been instructed that the appellant's possession of a handgun on the day of his arrest, some three days after the shooting, does not mean that he is the type of person who would have gotten angry and shot the victim. Further, the jury should have been told that if they found the handgun was not the victim's gun, they should not consider the evidence that the appellant was in possession of a gun.

[6] We reject this submission. As we have noted, there was evidence led at trial that the handgun found in the appellant's possession on the date of his arrest matched the description by two witnesses at trial of the handgun allegedly taken (at least according to one of the witnesses) by the appellant from the victim immediately following his being shot. The evidence about the October 24, 2014 handgun was, therefore, highly relevant evidence as it could connect the appellant to the shooting and was potentially corroborative of the testimony of the two witnesses to the shooting – in particular, the witness who testified that the appellant took the victim's gun (the same witness the appellant claimed was the shooter). Corroboration of the testimony of the two witnesses was important given that the jury had been given a Vetrovec warning with respect to their testimony. Further, in the context of the evidence that emerged at trial, the evidence that, on October 24, 2014, the appellant was in possession of a handgun similar to the victim's handgun became part of the narrative of the events. It was not relevant simply because it was evidence of the appellant having a gun that could have been the gun he had on October 21, 2014 – as had been the case on the severance motion. Moreover, it was not evidence of totally unrelated discreditable conduct.

[7] Considering the evidence in context, we see no realistic possibility the jury would have engaged in improper propensity reasoning. Neither the Crown nor the trial judge suggested to the jury any improper use of the evidence. This case came down to the impact of the medical evidence and whether the jury accepted the evidence of the two Vetrovec witnesses. We see no air of reality to the suggestion that the jury made impermissible use of the evidence concerning the appellant's possession of a gun on October 24, 2014 in reaching their verdict. In the circumstances of this case, we have concluded that the failure to give the caution did not amount to material misdirection or non-direction.

[8] Although defence counsel at trial told the jury to expect a direction on improper propensity reasoning and outlined that caution to the jury, defence counsel did not raise any objection when the trial judge did not include such a caution in her charge to the jury.

[9] For these reasons, the conviction appeal is dismissed. The appellant did not make any oral submissions on sentence. We see no basis on which to interfere with the sentence imposed by the trial judge. As a result, leave to appeal sentence is granted, but the sentence appeal is also dismissed.

Janet Simmons J.A. Paul Rouleau J.A. Grant Huscroft J.A.