



COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. Shaw, 2013
    ONCA 37

DATE: 20130122

DOCKET: C52641

Laskin, Rosenberg and Gillese JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Richard St. Calvert Shaw

Appellant

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 judges
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.


