COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Bonilla-Perez, 2016 ONCA 535

DATE: 20160706

DOCKET: C59123

Pepall, Tulloch and Pardu JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Osiris Bonilla-Perez

Appellant

Philip Campbell, for the appellant

Dena Bonnet, for the respondent

Heard: June 15, 2016

On appeal from the conviction entered by Justice Michael Code of the Superior Court of Justice on April 3, 2014, with reasons reported at 2014 ONSC 2031.

ENDORSEMENT

[1] The appellant appeals his convictions for possession of a loaded prohibited firearm, unauthorized possession of a firearm in a motor vehicle, careless storage of a firearm, and failure to comply with a s. 109 weapon prohibition order. The convictions arose out of the seizure of a loaded handgun that was found in the back of the appellant’s BMW motor vehicle during a traffic stop.

[2] The appellant submits that the trial judge misapprehended the evidence and rendered an unreasonable verdict.

[3] For the following reasons, the appeal is dismissed.

Background

[4] After a traffic stop at about 1:35 a.m., the appellant and the passenger in his car were arrested for failing to comply with their respective recognizances. The appellant had a curfew between 12:00 a.m. and 6:00 a.m., while his passenger was on house arrest.

[5] The arresting officers had allowed the appellant some time to search for a letter from his surety while they returned to the police car and checked the identification of both occupants of the BMW. During that interlude, which lasted about two minutes, the officers observed movement by the appellant and his co-accused. When the officers returned to the BMW, the appellant provided them with a forged note from his surety.

[6] Once the appellant and co-accused had exited the appellant’s car, one of the arresting officers looked into it, and, aided by a flashlight, saw the handle of a handgun sticking out from under the floor mat in the back of the car behind the passenger’s seat. Both the appellant and his passenger were charged with possession of the handgun.

[7] The appellant brought a Charter application to exclude the handgun, which was dismissed at trial and not renewed on appeal.

[8] Possession was then the central issue on all charges at the trial on the merits.

[9] The trial judge convicted the appellant, but acquitted his co-accused. He was not convinced beyond a reasonable doubt that the co-accused had the requisite knowledge and control to establish possession.

Discussion

[10] On the issue of misapprehension of evidence, the appellant challenges the trial judge’s finding that the movements of the appellant and his co-accused during the traffic stop were confined to the front seat of the car and did not include any reaching into the backseat area. He notes that there was no evidence that they did not reach into the backseat area, and that both officers were clear they could not see their hands. Counsel submits that the trial judge erred in concluding that the evidence eliminated the possibility of a hastily discarded handgun.

[11] This misapprehension of the evidence, he argues, deprived him of his defence theory that his co-accused hid the handgun without his knowledge during the traffic stop.

[12] We disagree. That finding was open to the trial judge on the record before him; it was not based on a misapprehension of the evidence.

[13] The arresting officers’ evidence was that the appellant and his co-accused moved side-to-side. While one of the officers saw the appellant move forward and back, that officer testified that the movement was confined to the front seat. There was no direct evidence that the appellant, or more importantly his co-accused, had ever reached into the back of the car, or made any motions consistent with reaching into the back of the car. The obvious implication of the trial judge’s finding is that the movements witnessed by police were the two of them looking for the surety’s note, or engaged in forging the one provided to police. The theory that the co-accused hid the gun without the appellant’s knowledge is both speculative and implausible.

[14] On the issue of an unreasonable verdict, the appellant submits that there were other rational inferences available on the evidence that were inconsistent with him having knowledge and control.

[15] We disagree.

[16] The trial judge concluded that the appellant was either a principal or a party to the gun possession. He based that conclusion on the following considerations:

• No one else had possession of the BMW and the appellant was driving it.

• That it is a common sense inference that people generally know what is in their car, especially when the object in question has some real value, when it is ready for use, when it is at least partially visible, and when it is within reach, as in the case at bar.

• That it is a common sense inference that other parties generally do not hide their valuables in someone else’s car, unless they know and trust the owner of the car to look after the valuables for them.

• That the only other person with access to the car on the night in question was [the co-accused] and he must have entered the car between 12:00 midnight and 1:30 a.m., while [the appellant] had direct personal custody and control of the car. If [the co-accused] brought the gun into the car and partially concealed it on the floor of the back seat, [the appellant] would have seen him and must have expressly or implicitly permitted or consented to this use of his car, or been wilfully blind to it.

[17] Based on these considerations, it was open for him to conclude that the inference was overwhelming that the appellant knew the loaded gun was in the back seat of his car and that guilt was the only reasonable inference available on all the evidence.

Disposition

[18] Accordingly, the conviction appeal is dismissed.

“S.E. Pepall J.A.”

“M. Tulloch J.A.”

“G. Pardu J.A.”