



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Degraw, 2018 ONCA 51

DATE: 20180124

DOCKET: C64268

Feldman, Fairburn and Nordheimer JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Douglas Alan Degraw

Appellant

Robert Sheppard, for the appellant

Randy Schwartz, for the respondent

Heard: December 15, 2017

On appeal from the convictions entered by Justice Allan
    Maclure of the Ontario Court of Justice on May 2, 2017, and from the sentence
    imposed on July 17, 2017.

Fairburn J.A.:

Overview

[1]

While under a lifetime firearms prohibition
    order, the appellant allegedly made a threat to his girlfriend that included
    having access to a gun for sale at a store in a nearby town. The police
    attended at the store and discovered a high-powered rifle for sale under his
    name. The appellant was convicted of being in possession of a firearm while
    prohibited (s. 117.01(1) of the
Criminal Code
) and being in possession
    of a firearm while knowing that he was not the holder of a firearm licence (s.
    92(1) of the
Criminal
Code
).

[2]

The appellant testified at trial. While he
    acknowledged having been involved in putting the firearm up for sale, he
    disavowed any control over the firearm. The trial judge rejected the
    appellants evidence. Crown counsel on appeal concedes that, in the context of
    the entire case, the appellants evidence could have afforded him a defence. Accordingly,
    the trial judges credibility findings were central to the result in this case.

[3]

The appellant raises two issues in his
    conviction appeal. He claims that:

(1)

the trial judge erred
    in his approach to possession; and

(2)

the trial judge erred
    in his approach to the appellants failure to call certain witnesses to testify.

[4]

For the reasons that follow, I would allow the
    appeal on the second point.

Possession Issue

(i)

Constructive Possession

[5]

It was not in dispute at trial that: (1) the
    appellant was prohibited from being in possession of the rifle; (2) the
    appellant did not have a licence to possess the rifle; and (3) the appellant
    knew about the rifle on sale at the store. Consequently, the evidence at trial
    focused on the issue of control. Read in totality, the reasons for judgment
    suggest that the appellant was found to be in constructive possession of the
    firearm while it was at the store.

[6]

The appellant argues that the trial judge erred
    in his approach to constructive possession. When it comes to offences involving
    weapons prohibition orders, like the offences upon which the convictions rest
    in this case, the appellant argues that the Crown must prove that the accused
    was in physical control or, at a minimum, that he intended to take physical
    control of the item. The appellants position rests on what he says is the specific
    legislative purpose of offences rooted in weapons prohibition orders: keeping dangerous
    weapons out of the actual hands of dangerous people. As such, he maintains that
    unless the Crown proves that the accused physically possessed or intended to
    physically possess a weapon that is subject to a prohibition order, the harm at
    which the offence is directed is absent. On this basis, the appellant argues
    that, at a minimum, an intention to physically possess a weapon covered by a
    prohibition order is an element of the offence.

[7]

I disagree.

[8]

There are three routes to possession: personal,
    constructive, and joint possession. Regardless of the route, there must be
    knowledge and some level of control. Section 4(3)(a)(ii) of the
Criminal
    Code
was relied upon in this case:

(3) For the
    purposes of this Act,

(a) a person has
    anything in possession when he has it in his personal      possession or
    knowingly

(ii) has it in
    any place, whether or not that place belongs to or is occupied by him, for the
    use or benefit of himself or of another person .

[9]

The three essential elements of constructive
    possession are:

(1)

did the person have
    knowledge of the character of the object;

(2)

did the person
    knowingly put or keep the object in a particular place, whether or not that
    place belongs to him; and

(3)

did the person intend
    to have the object in the particular place for his use or benefit or that of
    another person?

See:
R. v. Morelli
,

2010 SCC 8, [2010] 1 S.C.R.
    253, at para. 17.

[10]

To make out constructive possession, there is
    simply no requirement that the Crown prove that the accused had physical
    possession or intended to take physical possession of the subject item(s). The plain
    language of the
Criminal Code
makes it clear
    that constructive possession applies where the accused knowingly has an item in
    a place, for the use
or
benefit of [the
    accused]
or
of another person (emphasis added).
    There is no additional or different requirement when it comes to possession for
    offences involving weapons prohibition orders.

[11]

The legislative intent behind weapons
    prohibition orders is not simply to keep firearms and other dangerous weapons
    out of the actual hands of those at whom the orders are directed. People are
    not randomly targeted for weapons prohibition orders. They find themselves the
    subject of such orders on account of their prior conduct, conduct that
    typically suggests a future risk to public safety if weapons are possessed.

[12]

Although preventing personal possession is a
    critical aspect of the public safety goal served by prohibition orders, it does
    not stop there. People who are prohibited from possessing weapons should have no
    form of control over the weapons caught within the reach of the prohibition
    orders. While joint and constructive possession are more distant forms of
    possession than personal possession, there is no good policy reason to exclude
    these other forms of possession.

[13]

Joint and constructive possession also require
    knowledge and some level of control. When they come together, in any form of
    possession, the purpose of the prohibition order is defeated. In particular, a
    person who knowingly has [the firearm] in any place for his or anothers use
    or benefit, has some control over that firearm. Whether he intends to take
    physical possession of it in the future is not the point. It is the fact that
    he has some control over it. A person who is prohibited from possessing
    weapons, but maintains some level of control over them, is still dangerous.

[14]

There is no statutory, legal or logical reason
    to add a new or different element to possession when it comes to offences
    involving weapons prohibition orders.

(ii)

Facts Pointing Toward Possession

[15]

Standing on its own, the Crowns evidence
    clearly supported a finding of constructive possession.

[16]

After the appellant was charged with a number of
    offences in 2007, he sold all of his firearms to his brother-in-law, Doug
    Schweitzer, in order to comply with the terms of his bail. Legal ownership of
    the firearms was transferred to Schweitzer. The appellant was later convicted
    and a lifetime weapons prohibition order was imposed.

[17]

When out on parole in 2016, the appellant
    assaulted his girlfriend. During his guilty plea, he agreed that he told her
    his gun was only a town away in Rodney at a firearms dealer. The girlfriend confirmed
    this comment during her evidence at this trial.

[18]

The owner of the gun store could not recall
    whether the appellant carried the gun into the store, but recalls dealing with
    him when the gun was put up for sale. The appellant was listed on file as the
    person selling the gun and called a few times to inquire about whether anyone
    had shown any interest in purchasing the gun. Had the gun sold, the store owner
    testified that he would have given the money to the appellant.

[19]

This constituted both direct and circumstantial
    evidence of: (1) the appellants knowledge of the firearm; (2) the fact he was
    keeping it at the store; and (3) the fact he intended to benefit from the sale.
    Standing on its own, the Crowns evidence supported a finding of constructive
    possession.

[20]

The difficulty is that the Crowns evidence did
    not stand on its own because the appellant testified. Crown counsel concedes
    that if the trial judge erred in the assessment of the appellants credibility,
    then a new trial is required. I now turn to this issue.

The Appellants Failure to Call Certain
    Witnesses to Testify

(i)

The Appellants Evidence

[21]

The appellant testified that he needed money. Mr.
    Schweitzer was prepared to extend him a loan if the guns that the appellant had
    previously transferred to Schweitzer were sold. The appellant posted some for
    sale signs at sporting goods stores. A man from the town of Exeter responded
    to one of these postings and asked to see the guns. The appellant could not
    recall the mans name. I will refer to him as the Exeter man.

[22]

As Schweitzer could not be present when the
    Exeter man came to look at the guns, the appellant arranged for the attendance
    of someone with a firearms licence to facilitate the transaction: Dave Payne.
    According to the appellant, this was all done with Schweitzers approval. The
    Exeter man bought all of the guns except one rifle. A decision was made to sell
    that rifle at a gun shop in the town of Rodney. As the Exeter man had not been
    to the gun shop and wanted to see it, he agreed to drive the rifle there and
    drop it off. The appellant drove behind the Exeter man.

[23]

The appellant testified that he never touched
    the gun; the Exeter man took it into the store and left it on the counter. The
    appellant admits that he spoke to the owner of the store about the list price. According
    to the appellant, if the gun sold, the money would go to Schweitzer and then
    Schweitzer would advance him the loan.

(ii)

Reasons for Judgment: The Appellants
    Credibility

[24]

The trial judge correctly reviewed the
    principles in
R. v. W.(D.)
, [1991] 1 S.C.R. 742
,
specifically
    observing that if he believed the accuseds evidence or was left in a
    reasonable doubt by it, then he must acquit. He commenced his credibility
    findings with the following: Now, Mr. Degraw, you testified in your own
    defence, and, frankly, I found your story unbelievable, and Ill tell you why I
    do.

[25]

The trial judge first pointed to the fact that he
    found it unbelievable that the appellant did not know the name of the Exeter
    man. He next pointed to the fact that the Exeter man, Payne, and Schweitzer did
    not testify to support [the appellants] version of events. The trial judge
    found that their evidence would have been essential if the appellants
    evidence were to be accepted.

[26]

The trial judge next observed the Crowns position
    that the trial had been previously adjourned to facilitate Schweitzers
    appearance. The trial judge noted the Crowns position that Schweitzer had not
    attended to give evidence because he did not want to lie. The trial judge
    commented that he could not say for certain whether that is true, but it is
    certainly something that warrants consideration and may probably be true.
    Finally, he observed that, despite the importance of Payne and Schweitzer to
    the gun transaction, neither had attended at the store.

(iii)

Positions of the Parties

[27]

The appellant maintains that the trial judge
    erred in how he approached his credibility findings. He argues that the trial
    judge reversed the onus when he rejected the appellants evidence on the basis
    that the appellant failed to call certain witnesses in his defence. He also
    claims that the trial judge erred by suggesting that the witnesses were not
    called because they were not prepared to lie on the appellants behalf.

[28]

The Crown maintains that in some circumstances
    it is appropriate to draw an adverse inference from the failure of the defence
    to call certain witnesses. This will typically occur where witnesses are
    available to testify and the defence position cries out for their evidence.
    Crown counsel submits that this is one of those cases. He argues that, read in
    context, the reasons for judgment deal with this issue correctly and did not
    result in a reversal of the onus.

(iv)

Law

[29]

In some limited circumstances, a trier of fact
    may draw an adverse inference from the accuseds failure to call a witness. The
    adverse inference principle is derived from ordinary logic and experience. It
    is not intended to punish the accused for failing to call a witness:
R. v.
    Jolivet
,

2000 SCC
    29, [2000] 1 S.C.R. 751, at para. 24.

[30]

An adverse inference may only be drawn where
    there is no plausible reason for not calling the witness:
R. v.

Lapensee
,

2009 ONCA 646, 99 O.R. (3d) 501,
at para. 42. Even where it is appropriate to draw an adverse
    inference, it should not be given undue prominence and a comment should only
    be made where the witness is of some importance in the case:
R. v. Koffman
(1985), 20 C.C.C. (3d) 232 (Ont. C.A.),
at p. 237.

[31]

Commenting upon the failure of the defence to
    call a witness runs the clear risk of reversing the burden of proof:
R. v.
    Ellis
,

2013 ONCA
    9, 113 O.R. (3d) 641, at para. 49; and
Lapensee
,

at para. 45. As well, trial
    counsel will frequently make choices about not calling potential witnesses, the
    reasons for which are often entirely unrelated to the truth of any evidence a
    witness may give.  For instance, an honest person may have a poor demeanour,
    resulting in a strategic choice not to have the individual testify. Or, the
    evidentiary point to be made by a person may already have been adequately
    covered by others:
Jolivet
,

at para. 28. Allowing an adverse inference to be taken from the failure to
    call a potential witness runs the risk of visiting strategic litigation choices
    upon the accused. Accordingly, an adverse inference should only be drawn with
    great caution:
R. v. Zehr
(1980),

54 C.C.C. (2d) 65 (Ont. C.A.), at p. 68
;
R. v. Charrette
(1982),
    67 C.C.C. (2d) 357 (Ont. C.A.), at p. 359
;
Koffman
,
    at p. 237;
Lapensee
, at para. 45; and
Ellis,
at para. 49.

[32]

Where comment is appropriate, the only
    inference that can be drawn is not one of guilt, but an inference that, had
    the witness testified, his or her evidence would have been unfavourable to the
    accused:
Koffman,
at p. 238; and
R. v.
    Marshall
(2005), 200 C.C.C. (3d) 179 (Ont. C.A.), at para. 47. This
    inference can impact on an assessment of the accuseds credibility:
Koffman
,

at p. 238;
Charrette
,

at p. 359;
R. v. Dupuis
(1995), 98 C.C.C. (3d) 496 (Ont.
    C.A.), at p. 508; and
Marshall,
at paras. 44, 47-48.

[33]

I now turn to what I see as the difficulties
    with the reasons for judgment in this case.

(v)

Analysis

(a)
Overview

[34]

I am inclined to agree with Crown counsel on
    appeal that this was one of those rare cases where it was open to the trial
    judge to take into account the fact that the accused did not call the Exeter
    man, Payne or Schweitzer to testify. The relevance of these witnesses was only
    introduced when the appellant testified. They were inextricably woven into the
    appellants narrative about how the gun came to be at the gun shop, put up for
    sale, and the loan that would result if it sold. The appellant was the only one
    who could have located the Exeter mans actual name and address. He failed to
    do so. As well, leaving aside the reasons he provided for the absence of the
    witnesses, the appellant still had greater access to them than the Crown.

[35]

While this was one of those rare cases where it
    was open to the trial judge to exercise his discretion in favour of taking the absence
    of the witnesses into account, he erred in how he approached this delicate
    exercise.

(b)
Failure to consider explanation for
    absence of witness

[36]

The trial judge considered the appellants
    explanation for not being able to provide the Exeter mans name and quite reasonably
    rejected the explanation as unbelievable. In contrast, he failed to deal with
    the appellants explanation for why Payne was not present to testify:  that
    Payne had moved away, likely back to Cornwall where his girlfriend was from,
    and had not been found.  As an adverse inference can only be drawn where no
    plausible reason is given for not calling the witness, the trial judge should
    have considered the reason given for Paynes absence. While he may have
    rejected the reason given as also unbelievable, it should have been specifically
    considered.

(c)
Reasons relating to Schweitzer

[37]

As for Schweitzer, the trial Crowns position was
    summarized in the reasons for judgment as follows:

The Crowns submission on that point with respect
    to your brother-in-law was that Mr. Schweitzer, who also for whatever reason,
    couldnt appear at your first trial, and that that was one of the reasons for
    the adjournment of the first trial date, simply didnt want to lie on your
    behalf.

While the
    trial judge could not say for certain whether that [was] true, in arriving at
    his credibility findings, he held that it was certainly something that
    warrants consideration and may probably be true.

[38]

There are two difficulties with the trial
    judges approach.

[39]

First, there was no evidence that an original
    trial date was adjourned because Schweitzer couldnt appear. When this
    suggestion was put to the appellant in cross-examination, he specifically
    denied it. Indeed, the appellant insisted that it was actually the Crown who had
    asked for the adjournment of the original trial date. The appellant having
    denied the proposition put, the Crown was left without evidence that: (a) Schweitzer
    had failed to attend on an earlier trial date; and (b) Schweitzers failed
    attendance had caused the first trial date to be adjourned. Yet, the reasons
    for judgment suggest that the Crown proposition was treated as fact.

[40]

Read in context, the passage conveys the idea
    that Schweitzer had not attended on two different trial dates because he did
    not want to lie on [the appellants] behalf. This leads into the second
    problem with respect to how Schweitzers absence was dealt with in the reasons
    for judgment.

[41]

The trial judges suggestion that it may probably
    be true that Schweitzer did not appear because he did not want to lie for the
    appellant goes well beyond a mere inference that, had Schweitzer testified, he
    would have given evidence that was unfavourable to the defence. The above
    comment implies that the appellant may have tried to get Schweitzer to lie for
    him and Schweitzer refused. There was no evidence to support the inference that
    Schweitzer was absent because he was refusing to lie.

[42]

The lying absent witness theme was one that ran
    throughout the cross-examination of the appellant. The trial Crown (not Mr.
    Schwartz) repeatedly put variations of this theme to the appellant, including: that
    Payne and Schweitzer were not coming to lie for you today; he wont come to
    court to lie for you; Mr. Schweitzers not here because the Schweitzers are
    good, law-abiding people, and hes not coming to lie for you today; Mr. Payne
    is not here today either because he wont come to court to lie for you; and so
    on.

[43]

The cross-examination, focusing so repetitively
    on whether Payne and Schweitzer were absent because they did not want to lie
    for the appellant, was inappropriate and irrelevant. At best, the
    cross-examination suggested that the appellant wanted Payne and Schweitzer to
    lie to the court. At worst, it suggested that he attempted to get them to lie
    and they refused. There was no evidence to support either of these
    propositions.

[44]

Cross-examination on the failure of the defence
    to call a witness will only be appropriate in those rare circumstances where an
    adverse inference is open to be drawn. The inference is not one of guilt. Nor
    is it an inference that the person is refusing to lie for the accused, an
    inference infused with the improper suggestion that the accused wants or has
    encouraged the person to do so. The available inference is that, had the person
    testified, his or her evidence would have been unfavourable to the defence.

[45]

While there was a basis upon which to infer that
    Schweitzer would have provided unfavourable evidence had he testified, there
    was no basis upon which to infer that he refused to lie on the appellants
    behalf. The trial judge erred by concluding that this was an available
    inference to be drawn and may probably be true.

(d)
Reversal of the burden of proof

[46]

Most problematic, though, is the fact that the
    reasons reveal a reversal of the burden of proof. In rejecting the appellants
    evidence, the trial judge said: Given the magnitude of the importance of their
    evidence, their presence would have been essential if the court were to accept
    your version of events. Whether Payne, Schweitzer, and the Exeter man had
    important evidence to give or not, their evidence was not required to accept
    the appellants evidence. Corroboration was not essential before the
    appellants evidence could be accepted or raise a doubt. The effect of this
    comment was to place an onus on the defence to produce corroborative evidence.
    It reversed the burden of proof.

[47]

While Crown counsel acknowledges that, standing
    on its own, this sentence is awkward, he encourages the court to consider the
    impugned comment in context. In particular, he points to the passage following
    the comment as contextualizing what the trial judge meant:

And that is not to say that you have anything
    to prove here, you dont, but the court has to assess the evidence that youre
    offering, and your evidence was that these individuals could explain what
    occurred and provide you with a legal defence to what occurred, and yet none of
    them, notably your own brother-in-law, were either subpoenaed or attended court
    to testify on your behalf.

[48]

Although the trial judge correctly noted that
    the appellant had nothing to prove, he went on to emphasize that the witnesses
    could have provided a legal defence to what occurred, yet did not attend
    court to testify. With or without the evidence of the Exeter man, Payne and or
    Schweitzer, the appellants evidence could have been accepted or raised a
    doubt. This was not about whether the absent witnesses could provide a defence,
    but how their absence might have impacted the assessment of the appellants
    credibility because of the inference that could have been properly taken  that
    their evidence would have been unfavourable had they testified. Even when
    considered in context, the error in reversing the burden of proof is not alleviated.

Conclusion

[49]

The failure to consider the reason given for
    Paynes absence, considering an explanation for a previous adjournment that was
    unsupported on the facts, reasoning that it may probably be true that
    Schweitzer did not appear because he did not want to lie on the appellants
    behalf, and reversing the burden of proof, accumulate to give rise to
    reversible error. We are not asked to apply the proviso.

[50]

I would allow the appeal, set aside the
    convictions, and order a new trial. Accordingly, there is no need to consider
    the sentence appeal. At the appeal, we were informed that the appellant was to
    be released from custody within a few days of the hearing. The Crown will
    undoubtedly take into consideration the time that the appellant has already
    served in custody when determining whether to proceed with another prosecution.

Released: January 24, 2018

Fairburn J.A.

I agree K. Feldman
    J.A.

I agree I.V.B.
    Nordheimer J.A.


