



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

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 owners 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 judges 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.


