



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Holdsworth, 2018 ONCA 828

DATE: 20181016

DOCKET: C62505

Simmons, Rouleau and Huscroft JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Nathan Holdsworth

Appellant

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 appellants involvement in the
    shooting  whereas if the jury did not accept that possibility, any prejudice
    arising from the evidence of the appellants 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, 2104. 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 appellants possession of a handgun
    at the time of his arrest. In his submission, the jury ought to have been
    instructed that the appellants 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 victims 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 appellants 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 victims 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 victims 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 appellants 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.


