COURT FILE NO.: CR 13-10000678-0000

DATE: 20140403

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

OSIRIS BONILLA-PEREZ AND

BYRON ALVAREZ

COUNSEL: David Mitchell, for the Crown Cheryl Robb for Osiris Bonilla-Perez Jason Bogle for Byron Alvarez

HEARD: March 3-6, 2014

M.A. Code J.

REASONS FOR JUDGMENT

A. OVERVIEW

[1] The two accused, Osiris Bonilla-Perez and Byron Alvarez (hereinafter, Bonilla-Perez and Alvarez), are charged in a nine count Indictment with various criminal offences. The first five counts charge both accused jointly with firearms offences that are all related to their alleged possession of a loaded handgun found in the back seat area of the car that they were occupying on the night of March 3, 2013. The last four counts charge both accused separately with breaches of various court orders as a result of their arrest for allegedly possessing the loaded handgun. In other words, all nine counts are related to the handgun.

[2] The two accused elected trial by judge alone and the Crown called its case over the course of three days. No defence evidence was called. Bonilla-Perez brought a Motion, alleging violations of ss. 8 and 9 of the Charter of Rights, and it was heard at the same time as the trial on the merits. Alvarez did not join in the Charter Motion. The s. 9 Charter issue was abandoned, as the trial progressed. Bonilla-Perez did not call any evidence in support of his s. 8 Charter Motion but relied on cross-examination of the police witnesses.

[3] The issues in the case are relatively straight forward. The police undoubtedly stopped the two accused in a motor vehicle shortly after 1:30 a.m. on the night in question. There is no s. 9 Charter issue relating to the lawfulness of the initial detention and subsequent arrests. Bonilla-Perez was driving the car, which belonged to him, and Alvarez was the front seat passenger. After obtaining their identification, the police learned that both accused were on bail. Both were arrested for alleged breaches of their terms of bail ‒ Bonilla-Perez had a 12:00 to 6:00 a.m. curfew and Alvarez was under “house arrest”. There were certain exceptions to both of these conditions. According to Sgt. White’s evidence, she saw the butt of a handgun on the floor in the back seat, as she was completing the arrest of Alvarez. She had another officer seize the handgun.

[4] The s. 8 Charter issue is whether the loaded handgun, seized at Sgt. White’s direction, was in “plain view” and could, therefore, be lawfully seized by the police. The police did not assert that they were searching the car pursuant to common law powers of search incident to arrest. Rather, they testified that they actually saw the gun prior to any search or seizure. Ms. Robb, counsel for Bonilla-Perez, attacks Sgt. White’s credibility and the claim that the gun was partially in “plain view”. If the Charter Motion is dismissed, and the loaded handgun is admitted in evidence, the main issue then becomes whether the Crown has proved that Bonilla-Perez and/or Alvarez were individually or jointly in possession of the gun.

[5] It was agreed by all parties at trial that the handgun was loaded with four rounds of ammunition and that it was a functioning prohibited firearm. No identifiable fingerprints or DNA samples were found on the gun or on a glove that partially covered the gun. Neither accused was licensed to own or possess firearms and both accused were subject to s. 109 firearms prohibition Orders at the relevant time.

[6] At the end of the trial, I reserved judgment.

B. FACTS

[7] P.C. Steven Oliver had been a police officer for nine years at the time of trial. He was working an overtime shift in uniform on the night in question, patrolling the downtown “Entertainment District” in Toronto. It was a Saturday night. His partner was Sgt. Catherine White, who was also working an overtime shift. She had twenty-six years’ experience as a police officer. P.C. Oliver was driving a marked police cruiser and Sgt. White was the front seat passenger.

[8] The officers had attended at the scene of a suspected break and enter near Bathurst and Harbord Streets. Once that matter was resolved, the officers resumed general patrol in the area. Shortly after 1:30 a.m. they were proceeding north on Robert Street. They were behind a motor vehicle with two occupants that came to a stop at Bloor Street at a red traffic light. P.C. Oliver ran the license plate through the onboard police computer. The Ministry of Transport records showed that the registered owner of the car was named “Osiris, Bonilla-Perez”. The car was a 1997 BMW. The police CPIC records showed that this individual was on bail and that he had a 12:00 to 6:00 a.m. curfew, subject to exceptions in emergencies or when he was with his surety or with a person approved by his surety.

[9] P.C. Oliver believed that he knew an Osiris Bonilla-Perez from working on the front desk at 14 Division as this person would check in pursuant to a weekly reporting condition. P.C. Oliver also knew that Bonilla-Perez walked slowly and that he sometimes used a cane. He believed that Bonilla-Perez might be one of the persons in the car and that he might be in breach of his curfew, unless his surety or an approved person was with him in the car. When the traffic light turned green, the BMW turned left and headed west on Bloor Street. P.C. Oliver followed the BMW and activated his cruiser’s emergency lights. The BMW briefly accelerated and then pulled over to the curb on the north side of Bloor Street at Brunswick Avenue, after P.C. Oliver had activated the siren.

[10] Sgt. White confirmed that the computer license check revealed that the owner of the car was on bail on a charge of fail to comply and that he had a curfew. She also confirmed that P.C. Oliver believed he knew this person from working on the front desk at 14 Division where the person was reporting. Finally, she confirmed that the BMW briefly accelerated but then pulled over just east of Brunswick Avenue. The motor vehicle stop was at 1:34 or 1:35 a.m., according to the officers’ notes. Police records showed that the officers initiated the license check on their computer at 1:31 a.m.

[11] P.C. Oliver parked the cruiser behind the BMW, both officers got out of the cruiser and they approached the BMW. P.C. Oliver went to the driver’s side and Sgt. White went to the passenger side. The two officers provided separate accounts at this point, which is when they took on different roles and had different vantage points.

[12] P.C. Oliver asked for the driver’s license, ownership, and insurance. Bonilla-Perez was the driver of the BMW and P.C. Oliver recognized him. He produced a paper copy of his driver’s license, without a photograph, and he produced valid insurance. P.C. Oliver told Bonilla-Perez that he was required to be with his surety or to have a letter from his surety at this time of night. Bonilla-Perez looked around in his car for the requested letter, checking in the glove box and in the centre console area. The car was fairly messy. Bonilla-Perez explained that he and his passenger “Byron” were hungry and that they had gone out for a hamburger. He did not expressly say whether “Byron” was or was not his surety so P.C. Oliver asked for “Byron’s” identification. The passenger produced his identification and gave it to Sgt. White at the passenger side of the car. The officers returned to their cruiser in order to check the two sets of identification. P.C. Oliver told Bonilla-Perez to flash his four-way emergency lights if he found the letter from his surety.

[13] Sgt. White testified that she could not hear the conversation between P.C. Oliver and Bonilla-Perez, from her vantage point at the front passenger side of the BMW. But she did hear P.C. Oliver ask for the passenger’s identification and saw Alvarez reach in his pocket. She was watching Alvarez and she knocked on his window, he lowered it and he passed his identification to her.

[14] When the officers ran Alvarez’ identification through the police computer they learned that he was on bail on drug charges. His terms of bail included “house arrest” with various exceptions. It was now likely that both the driver and the passenger in the BMW would be arrested and so P.C. Oliver called for back-up, to enable two separate arrests. It was 1:38 a.m.

[15] While P.C. Oliver and Sgt. White were seated in their cruiser, checking Bonilla-Perez’ and Alvarez’ identification in the onboard computer, both officers noted movement in the front seat area of the BMW. P.C. Oliver described both occupants of the car moving from side to side and he described the driver also moving forward and back, but always in the front seat area. He could only see the two occupants’ heads and shoulders. The movement was sufficient that the frame of the car was moving. P.C. Oliver thought that they could have been concealing something but he also conceded that they could have been looking for something. P.C. Oliver could not see their hands and this caused him to be concerned for both officer and public safety. It was busy in this part of Bloor Street on a Saturday night, especially on the south side near the Brunswick House tavern. P.C. Oliver briefly discussed his concern with Sgt. White. Sgt. White testified that she saw both occupants’ shoulders moving from side to side. She confirmed that the car was rocking slightly. She testified that she was not comfortable as both accused were on bail and now there was movement in the car. She thought that they could be hiding something but she also conceded that they could be looking for something. She was not sure and she discussed the matter with P.C. Oliver.

[16] Shortly after P.C. Oliver called for back-up, P.C. Bai and P.C. Dawe arrived at the scene. They were already in the area and they were also in uniform and in a marked cruiser. They pulled in behind P.C. Oliver and Sgt. White. The four officers got out of their cruisers. P.C. Oliver and P.C. Bai went to the driver’s side of the BMW. Sgt. White and P.C. Dawe went to the passenger side of the BMW. P.C. Oliver told P.C. Bai that they would be making arrests for fail to comply. He had decided to arrest Bonilla-Perez for being out after his curfew, and without a note from his surety, and to arrest Alvarez for being in breach of his “house arrest” term of bail. P.C. Oliver did not mention any officer safety concerns to P.C. Bai.

[17] Dealing first with the arrest of Bonilla-Perez, P.C. Oliver’s account was that he asked the driver to exit the car and Bonilla-Perez complied. He had a piece of paper in his hand which he passed to P.C. Oliver, while stating “here’s the letter”. P.C. Oliver had a quick look at the note on the piece of paper but he could not make out anything. The note did not include a date or time or the required permission from the surety. P.C. Oliver handed the piece of paper to P.C. Bai, who was standing nearby, and then continued with the arrest of Bonilla-Perez.

[18] The piece of paper handed to the police was produced as an exhibit at trial. It is a handwritten note and it is on the back of a receipt for legal services from a traffic ticket company made out to one “Augusto Osiris”. The note, which has no date or time or phone number on it, states: “Osiris is out for a burger with Byron, please call me if any questions”, and it is signed by someone whose name is not particularly legible. Bonilla-Perez’ terms of bail included the following exceptions to a 12:00 to 6:00 a.m. curfew: “except for employment purposes, medical emergencies or in the presence of your surety or an adult approved of in writing by your surety, dated and signed”. There is no serious issue that this note, produced to the police by Bonilla-Perez, was not written or signed by Bonilla-Perez’ surety. The surety’s evidence will be summarized later in these reasons.

[19] P.C. Oliver handcuffed Bonilla-Perez, placed him under arrest for fail to comply with his recognizance, and escorted him back to the cruiser. Bonilla-Perez walked slowly and with some difficulty. P.C. Oliver did a pat search of Bonilla-Perez and then placed him in the back seat of the cruiser that P.C. Oliver had been driving.

[20] P.C. Don Bai testified that he was present when P.C. Oliver arrested Bonilla-Perez for fail to comply. It was 1:40 a.m. P.C. Bai confirmed that Bonilla-Perez produced a written note, as he was being arrested, and he asserted that it allowed him to be out. P.C. Bai took custody of the note. P.C. Oliver had Bonilla-Perez under control so P.C. Bai went back to his own cruiser where he read the note and decided that it was not legitimate. He sat in his cruiser and ran the license plate for the BMW through his onboard computer and he ran a CPIC check on the BMW’s owner. He decided that the BMW would have to be towed. It was parked in a bad place, up against a snow bank in a “no parking” area and on a snow route. P.C. Bai remained in his cruiser and began to fill out a “Tow Report” for the BMW.

[21] Turning to the simultaneous arrest of Alvarez, Sgt. White’s account was that she went to the passenger side of the BMW with P.C. Dawe. She opened the front passenger door and asked Alvarez to get out. He complied and she arrested him for fail to comply with the “house arrest” term of his recognizance. It was 1:40 a.m. P.C. Dawe handcuffed Alvarez and it was P.C. Dawe who then escorted Alvarez to a police cruiser. Sgt. White remained at the passenger side of the BMW.

[22] P.C. Renée Dawe testified that she arrived at the scene with P.C. Bai, after the call for back-up. She proceeded to the passenger side of the BMW with Sgt. White. She understood that the passenger was to be arrested for fail to comply. Alvarez is a large man and he had some difficulty getting out of the BMW. After the arrest, pat search, and handcuffing of Alvarez, P.C. Dawe escorted him to a third police cruiser that had arrived at the scene. P.C. Tam was driving this third cruiser and P.C. Dawe was not sure where it was parked. She walked Alvarez to this cruiser and placed him in the rear seat. She could not say how far she had to walk, or in what direction, in order to escort Alvarez to P.C. Tam’s cruiser.

[23] It is at this point that the critical evidence arises. Sgt. White had remained standing at the rear passenger side of the BMW, after P.C. Dawe took Alvarez away in handcuffs. Sgt. White pulled out her flashlight and shone it into the back seat area of the BMW. The rear passenger door was closed and she shone her flashlight through the rear passenger side window. She had not previously pulled out her flashlight or used it, when approaching and standing by the BMW that night. When the light from her flashlight shone on the floor behind the front passenger seat, she saw a lump under the floor mat and she saw what appeared to be the handle of a gun sticking out from under the floor mat. She immediately believed that it was the handle of a gun. No other officer was present. She opened the rear passenger door and she could now see a bulge under the floor mat more clearly. She could also see a blue fleece glove under the mat with a gun almost entirely inside the glove but with about one-half inch of the gun’s handle visible. This small portion of the gun handle that was sticking out from under the floor mat was at the side of the mat that was closest to the hump for the drive shaft that runs down the centre of the car. Sgt. White lifted up the floor mat and she could now see the entire glove with the gun in it. She put the mat back down.

[24] Sgt. White believed that P.C. Dawe was the first of the other three officers to come back to the BMW. However, she also remembered speaking to P.C. Oliver at the passenger side of the BMW, after Bonilla-Perez and Alvarez had both been arrested. She did not recall whether P.C. Oliver saw the gun handle or the bulge under the mat. What she did recall was telling P.C. Dawe that there was a gun under the floor mat and telling her to seize it. Sgt. White was not sure when P.C. Dawe actually did seize the gun because Sgt. White proceeded to search the front seat area of the car and she was not watching P.C. Dawe. Sgt. White was checking to see if there were any other weapons in the car and she probably checked the glove box and under the front seats. She eventually called for a dog unit to conduct a more thorough search, but there was none available. Sgt. White agreed that it would have been better to have a crime scene identification officer take a photograph of the gun, in the exact place where it was found, before having P.C. Dawe seize it.

[25] P.C. Oliver testified that, after he had placed Bonilla-Perez in the back seat of the cruiser, he walked back towards the BMW. He believed that something might be found in the car, based on the movements that the officers had previously observed. Sgt. White was at the rear passenger side of the BMW and she told P.C. Oliver that there was a gun in the car. It was no more than two minutes after they had made the arrests. P.C. Oliver went to the rear passenger side door, which was open. He could see the butt end of a gun inside some dark material. It was partially under the floor mat where the rear passenger would place his/her feet. The butt end of the gun was towards the rear of the car and the barrel of the gun was towards the front of the car. Only a small portion of the handle was visible at the edge of the floor mat that runs along the front of the rear seat. P.C. Oliver lifted up the floor mat and saw the rest of the dark material that was covering the gun. He put the mat back, without touching the gun. Both Sgt. White and P.C. Dawe were at the passenger side of the BMW. P.C. Oliver was not sure whether he was the second or the third officer to see the gun.

[26] P.C. Oliver returned to his cruiser. It was now 1:48 p.m. and he advised Bonilla-Perez of his right to counsel, both in relation to a charge of fail to comply and a charge of possession of a firearm. Bonilla-Perez asked P.C. Oliver where the gun had been found and P.C. Oliver told him to speak to the detectives at the station. P.C. Oliver and Sgt. White transported Bonilla-Perez to the station in their cruiser at 2:10 a.m. They left P.C. Bai and P.C. Dawe in charge of the BMW and it was these officers who arranged for a tow truck and any inventory search of the contents of the BMW.

[27] P.C. Dawe testified that she returned to the BMW after she had escorted Alvarez to P.C. Tam’s cruiser. Sgt. White advised her that there was a handgun under the floor mat and told her to seize it. The rear passenger door of the BMW was now closed and other officers were present – Sgt. White, P.C. Oliver, and P.C. Bai. P.C. Dawe did not know whether the other officers had all seen the gun at this point. She proceeded to open the rear passenger door. She saw a bulge under the floor mat and she saw what looked like a glove sticking out of the floor mat. She could also see a small one inch or two inch part of a gun protruding from under the floor mat. It was the bulge under the floor mat that was more visible than the gun. She lifted up the mat and could now see that the gun was inside a glove. The muzzle of the gun was fully inside the glove and the handle was sticking out. She believed that the muzzle was facing forwards, on the passenger side of the car.

[28] P.C. Dawe seized the gun and proved it safe. There were four bullets in the magazine. She took the gun back to her cruiser and secured it in the cruiser. She did not conduct an inventory search of the car with P.C. Bai. The BMW was in a “no parking” snow removal zone on Bloor Street and it was to be towed. P.C. Bai was responsible for the towing of the car and for taking an inventory of its contents. P.C. Dawe saw him in the car but she was not part of any inventory process.

[29] P.C. Bai testified that he ran computer checks on the BMW and its owner, and began filling out the “Tow Report”, while seated in his cruiser. He then proceeded back to the BMW to inspect it for any damage, to take an inventory of any valuables amongst its contents, and to enter all this information on the “Tow Report”. He did not actually get inside the car. He just put his head in and made a visual inspection of the contents. The BMW’s interior was messy with food containers and papers. He noticed a bulge under the rear passenger side floor mat. He was at the rear driver’s side door and it was obvious, from this vantage point, that something was under the floor mat. P.C. Dawe was opposite P.C. Bai, at the rear passenger side of the car. At some point she must have lifted up the floor mat. P.C. Bai did not actually see P.C. Dawe lift up the mat but, at some point, the mat was removed and P.C. Bai could now see the butt of a gun and the glove. P.C. Bai did not know whether any of the mess in the car had to be moved by P.C. Dawe, before the bulge under the floor mat became visible. From his vantage point, at the rear driver’s side door, he could only see the bulge under the floor mat and he did not see the gun itself, protruding from under the mat, until after P.C. Dawe had lifted the mat. The bulge under the mat was closer to the centre hump of the car that runs between the seats. P.C. Bai could see the far edge of the mat, closest to the rear passenger door, and he could see the rear edge of the mat, closest to the back seat. But he was not sure whether he could see the edge of the floor mat that was closest to the centre hump.

[30] Pauline Bryant was Bonilla-Perez’ surety at the relevant time. She is the mother of Bonilla-Perez’ girlfriend. She had agreed to act as his surety on condition that he live with her at her home on Hector Avenue, which is north-west of Dupont and Christie in the west end of Toronto. Bonilla-Perez had just been granted bail on February 25, 2013, about a week before the relevant events, so he had only been living with Ms. Bryant for a short time.

[31] On the night of March 2/3, 2013, Ms. Bryant and Bonilla-Perez were watching television. She was hungry and she wanted a hamburger. She asked Bonilla-Perez to go out and get hamburgers. She wrote him a note, with the date and her name and phone number on it, stating: “Osiris Perez gone for burgers in the AM”. The note that she wrote out was produced and made an exhibit at trial. It was not the note that Bonilla-Perez produced to the police that night. Ms. Bryant testified that the note produced by Bonilla-Perez, which refers to being “with Byron”, was not written or signed by her. She had never heard of Byron Alvarez and she had not given Bonilla-Perez permission to be out “with Byron” after his curfew.

[32] Ms. Bryant testified that it was around midnight when Bonilla-Perez left Ms. Bryant’s home. He took the note that she had provided. She expected that it would take Bonilla-Perez about ten to fifteen minutes to drive to one of the two places where she suggested he could get their hamburgers. She assumed that he would drive in his own car. There was no discussion about him doing anything other than getting the hamburgers. She had been in the back seat of Bonilla-Perez’ car on prior occasions, when shopping for groceries.

[33] Ms. Bryant testified that Bonilla-Perez used a cane or a walker, and he sometimes used a wheelchair if he was in significant pain. He told Ms. Bryant that the reason for his pain and for his difficulty walking was that he had a bullet in his back. He did not tell her how he got the bullet in his back.

[34] Ms. Bryant agreed, in hindsight, that the genuine note that she had given to Bonilla-Perez that night was not in compliance with the exception to his curfew. She erroneously thought that she could give him permission to go out for hamburgers but she realized, afterwards, that she should have accompanied him or she should have given him permission to go with some other adult.

C. ANALYSIS

[35] As set out at the beginning of these reasons, there are only two significant issues in the case: first, the s.8 Charter issue concerning whether the gun was in “plain view”; and second, the issue concerning the merits, namely, whether the Crown has proved that one or both of the accused was in “possession” of the loaded handgun.

[36] In relation to the s. 8 Charter issue, the parties agree that the onus is on the Crown, on a balance of probabilities, to prove that the gun was in “plain view” when the officers seized it. Bonilla-Perez and Alvarez were lawfully detained and under arrest, at the time of the warrantless seizure of the gun. I agree with the parties that the onus is on the Crown to establish the lawfulness of the seizure on a civil standard of proof. See: R. v. Brown (1996), 47 C.R. (4th) 134 (Ont. C.A); R. v. Collins (1987), 33 C.C.C. (3d) 1 at 14 (S.C.C.); R. v. Kang-Brown (2008), 2008 SCC 18, 230 C.C.C. (3d) 289 at para. 59 (S.C.C.).

[37] There is no question that the police are entitled to conduct a visual inspection of the interior of a motor vehicle, with the aid of a flashlight at night, as an incident of a lawful motor vehicle stop. In this case, the lawful stop had proceeded to the stage of a lawful arrest. The visual inspection of the car’s interior, aided by the flashlight, was justified for officer and public safety reasons. See: R. v. Caslake (1998), 121 C.C.C. (3d) 97 at paras. 19-20 (S.C.C.); R. v. Mellenthin (1992), 76 C.C.C. (3d) 481 at paras. 2 and 14 (S.C.C.).

[38] There is also no question, if the testimony of Sgt. White is accepted, that the handgun was in “plain view” as a matter of law. She testified, as summarized above, that she immediately recognized the handle of a gun protruding out from under the floor mat, with the aid of her flashlight and without having to move anything or search in any fashion. See: R. v. Jones (2011), 2011 ONCA 632, 278 C.C.C. (3d) 157 at paras. 56-8 (Ont. C.A.).

[39] Accordingly, the only issue in relation to Bonilla-Perez’ s. 8 Charter Motion is the credibility and reliability of Sgt. White’s testimony on this point. Defence counsel submitted that Sgt. White was not credible or reliable. They rely, inter alia, on her failure to hear or observe any of the interaction between P.C. Oliver and Bonilla-Perez when the officers first approached the BMW, on her failure to observe that the interior of the car was messy, and on alleged inconsistencies between her and the other officers as to the exact location of the handgun. It is submitted that these kinds of deficiencies in her evidence are illustrative of a general lack of credibility and reliability.

[40] In my view, none of the defence criticisms of Sgt. White’s evidence are persuasive or determinative. Her failure to note the details of P.C. Oliver’s interaction with Bonilla-Perez is understandable, given her vantage point at the other side of the car and given her primary focus which was on keeping the passenger Alvarez under observation. In any event, nothing turns on the details of P.C. Oliver’s interaction with Bonilla-Perez as it was admittedly a lawful motor vehicle stop and a lawful arrest. Similarly, Sgt. White’s failure to note or recall whether the interior of the car was, or was not, messy is at most an omission in relation to a minor detail. Any inconsistency between the four officers as to the location of the gun, on the other hand, could potentially be more serious.

[41] Turning to that issue, Sgt. White testified that the bulge under the floor mat, with a small part of the gun handle sticking out, was located closest to the edge of the mat that runs next to the hump in the centre of the car (as depicted in Sgt. White’s drawing, Exhibit 3). P.C. Bai’s testimony was generally consistent with this location, as he too placed the bulge closer to the centre hump of the car. This was the one edge of the floor mat that may not have been visible to P.C. Bai, from his vantage point at the driver’s side of the car, which could explain why P.C. Bai did not see the butt of the gun’s handle but did see the bulge under the mat. Both P.C. Oliver and P.C. Dawe confirmed Sgt. White’s evidence to the effect that the butt of the gun’s handle was visible, protruding out from under the rear passenger side floor mat. P.C. Dawe was the least reliable of the four officers, as she recalled little about the events in question, including the exact location of the gun. She believed that the muzzle of the gun was pointing forwards in the car but she was unsure on this point. P.C. Oliver testified that the barrel of the gun was pointing forward in the car and he placed the bulge at the back edge of the floor matt that runs along the front of the rear seat.

[42] It can be seen that the evidence of the four officers is substantially consistent on the central issue of whether a small portion of the gun’s handle was protruding and was, therefore, in “plain view”. Three of the four officers testified to this effect and the fourth officer, P.C. Bai, may simply not have seen the small protruding part of the gun’s handle because of his vantage point. He was the only one of the four officers who was at the driver’s side of the BMW. The four officers’ evidence is also generally consistent as to the location of the gun, that is, it was under the rear passenger side floor mat. Finally, their evidence is consistent that there was an obvious bulge under this floor mat, that the gun was inside a glove, and that the gun and glove were substantially underneath the floor mat. There is only one inconsistency, as to the exact location of the gun under this floor mat, as P.C. Oliver placed it closest to the back edge of the floor mat whereas Sgt. White and P.C. Bai placed it closest to the edge of the floor mat that runs next to the centre hump. In my view, this one minor inconsistency on a somewhat peripheral detail is not a sufficient basis for the defence attack on Sgt. White’s general credibility and reliability.

[43] I found Sgt. White, P.C. Oliver, and P.C. Bai to be generally credible and reliable witnesses for a number of reasons. Their accounts made sense and fitted with the known circumstances. No internal inconsistencies of any significance, within their own individual accounts, were put to them. The documentary evidence generally supported their accounts. In addition, their manner of testifying was careful and thoughtful, they were not defensive or evasive, they did not overstate or exaggerate their evidence, and they made fair concessions to the defence. For example, both P.C. Oliver and Sgt. White effectively neutralized the evidence about suspicious movements by the two occupants of the BMW and about any attempt to flee when the BMW briefly accelerated on Bloor Street. In both cases, both officers fairly conceded in cross-examination that there were innocent explanations for the conduct in question. Their testimony, in this regard, was of assistance to the defence in relation to the merits of the case. Finally, I note that the officers appeared to give independent accounts as they did not perfectly mirror or mimic each other’s testimony. For example, P.C. Bai conceded that he did not see the butt of the gun’s handle, from his vantage point at the rear driver’s side of the vehicle. P.C. Oliver and Sgt. White did not place the gun in the exact same location, although all the officers placed it under the rear passenger side floor mat. Sgt. White was unsure as to when P.C. Oliver returned to the BMW and whether he observed the gun under the passenger side floor mat. All of these examples involve testimony that did not advance the Crown’s interests. In the result, there was nothing about the officers’ evidence that suggested a concerted effort to give identical accounts that would bolster the credibility of Sgt. White’s account. Their differences on minor points of detail were understandable and helped to persuade me of their independence.

[44] For all these reasons, I am satisfied on a balance of probabilities that Sgt. White’s evidence was credible and reliable to the effect that she saw the gun in “plain view”, prior to any search or seizure. I also note that there was no evidence to the contrary on this point. In the result, the s. 8 Motion is dismissed as I am satisfied that there was no violation of the Charter.

[45] Turning to the second issue, namely, the merits of the case, the law has always been to the effect that “possession” in its various legal forms, requires proof beyond reasonable doubt of both knowledge and control of the thing allegedly possessed. See: R. v. Beaver (1957), 118 C.C.C. 129 (S.C.C.); R. v. Terrence (1983), 4 C.C.C. (3d) 193 (S.C.C.); R. v. Humphrey (2011), 2011 ONSC 3024, 237 C.R.R. (2d) 109 at paras. 142-3 (Ont. S.C.J.).

[46] In relation to the driver and owner of the car, namely, Bonilla-Perez, the main issue is knowledge and not control. If he knew that the loaded handgun was partially hidden, under the rear passenger side floor mat of his car, it could easily be inferred that he had either placed the gun there himself or that he had permitted or allowed someone else to place it there. In either case, the element of “control” would be established. As O’Halloran J.A. stated in R. v. Colvin and Gladue (1942), 78 C.C.C. 282 at 287(B.C.C.A.):

If there is the power to consent there is equally the power to refuse and vice versa. They each signify the existence of some power or authority which is here called control.

Martin J.A., speaking for the Ontario Court of Appeal, applied the Colvin and Gladue definition of control in Re Chambers and the Queen (1985), 20 C.C.C. (3d) 440 at 446-9 (Ont. C.A). Re Chambers was a case where it could be inferred that the accused Chambers had allowed her boyfriend Cardenas, who was visiting from Buffalo, to store his cocaine in her bedroom in Toronto. Martin J.A. reasoned as follows:

There was evidence that the room in which the drug was found was the respondent’s [Chambers’] room and, consequently, she could give or withhold her consent to the drug being in her room …the respondent in the present case had the power to either consent or withhold her consent to her room being used to store cocaine … a court [may draw] appropriate inferences from evidence that a prohibited drug is found in a room under the control of an accused where there is also evidence from which an inference may properly be drawn that the accused was aware of the presence of the drug. [Emphasis added.]

Also see: R. v. Mohamad (2004), 182 C.C.C. (3d) 97 at para. 61 (Ont. C.A.); R. v. Savory (1996), 94 O.A.C. 318 (C.A.). The same principles apply to the owner or driver of a car who generally has authority to control both access to the car and any uses of the car, as opposed to a mere passenger or occupant of a car who generally lacks such authority. See: R. v. Terrence (1980), 55 C.C.C. (2d) 183 (Ont. C.A.), aff’d R. v. Terrence, supra; R. v. T.(S.) (2001), 140 O.A.C. 122 (C.A.); R. v. Williams (1998), 125 C.C.C. (3d) 552 at 555-8 (Ont. C.A.); R. v. Belnavis and Lawrence (1996), 107 C.C.C. (3d) 195 at 209 (Ont. C.A.), aff’d (1997) 1997 320 (SCC), 118 C.C.C. (3d) 405 at 419 (S.C.C.).

[47] Applying the principles set out in the above authorities to the owner and driver of the car in this case, namely, Bonilla-Perez, I am satisfied that the element of “control” of the gun can be inferred from Bonilla-Perez’ undoubted ownership and control of the car, provided his “knowledge” of the gun can be proved beyond reasonable doubt.

[48] In relation to the element of “knowledge”, the evidence against Bonilla-Perez is entirely circumstantial. Accordingly, the Crown cannot succeed unless the only reasonable inference from the primary facts is that Bonilla-Perez knew that the loaded handgun was being stored in the rear passenger area of his car. See: R. v. Cooper (1978), 34 C.C.C. (2d) 18 at 33 (S.C.C.); R. v. Elmosri (1985), 23 C.C.C. (3d) 503 at 506 (Ont. C.A.); R. v. Griffin and Harris (2009), 2009 SCC 28, 244 C.C.C. (3d) 289 at 303 (S.C.C.).

[49] The primary facts in the case at bar are not seriously in dispute and they include the following:

• The car was owned by Bonilla-Perez;

• Bonilla-Perez was driving the car on the night in question;

• There is no evidence of some other person or persons driving the car or having access to the car when Bonilla Perez was not present;

• The gun was operable and loaded, that is, it was ready for use;

• The gun was only partially hidden in a glove with the butt end protruding from under the edge of the rear passenger side floor mat, leaving an obvious and visible bulge under the floor mat;

• The location of the gun could be reached by an occupant of either front seat;

• It can be inferred that the gun had some value;

• On the night in question, Bonilla-Perez left his residence on his own and took his car, at about 12:00 midnight. He was seen and stopped by the police at some point between 1:30 and 1:35 a.m. It was during this one and a half hour interval that Bonilla-Perez must have picked up Alvarez, who entered the front passenger seat. There were no other occupants in the car when it was stopped by the police;

• There was no forensic evidence, such as DNA samples, fingerprints, or gunshot residue, linking either accused to the gun;

• There was some evidence of suspicious movements in the front seat of the car, after the police stopped the vehicle, and some evidence of a brief acceleration of the car prior to the police stop. However, the police witnesses conceded that there were innocent explanations for these circumstances and, in my view, they carry little or no weight.

[50] I should add that there were a number of facts that did not assist in relation to the issue of “possession” of the gun. For example, the fact that Bonilla-Perez was in breach of his terms of bail, the fact that he had been out for longer than it would take to purchase hamburgers for himself and his surety, Ms. Bryant, and the fact that he must have forged the note that he provided to the police, do not advance the case one way or the other as to whether Bonilla-Perez was in “possession” of the gun. Similarly, the fact that Bonilla-Perez apparently has a bullet lodged in his back, which caused him to walk slowly and with some pain, does not assist in relation to the issue of “possession” of the gun. The Crown submitted that, if Bonilla-Perez had been shot, he would then have a motive to carry the gun. I simply do not have enough evidence as to how Bonilla-Perez came to have a bullet lodged in his back. I do not know when or where the incident occurred and I do not know whether it was the result of a deliberate shooting or an accident or whether it was somehow self-inflicted.

[51] Based on the relevant circumstances, I am satisfied that Bonilla-Perez must have known that the loaded handgun was being stored in his car. 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. It is also 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. Finally, the only other person with access to the car on the night in question was Alvarez and he must have entered the car between 12:00 midnight and 1:30 a.m., while Bonilla-Perez had direct personal custody and control of the car. If Alvarez brought the gun into the car and partially concealed it on the floor of the back seat, Bonilla-Perez 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. In other words, the inference is overwhelming that Bonilla-Perez knew the loaded gun was in the back seat of his car. As a result, he was either a principal or a party to possession of the gun. See: R. v. McIntosh (2003), 57 W.C.B. (2d) 481 at paras. 59-63 (Ont. S.C.J.); R. v. Husaini, [2013] O.J. No. 1936 at paras. 168-173 and 179-181 (S.C.J.). The only theory, consistent with Bonilla-Perez’ innocence, it that some third party secretly hid his/her loaded handgun in Bonilla-Perez’ car, without Bonilla-Perez’ knowledge. This theory is entirely speculative and is not a reasonably possible inference based on the evidence. See: R. v. Morrissey (1995), 97 C.C.C. (3d) 193 at 209 (Ont. C.A.); R. v. Figueroa et al (2008), 2008 ONCA 106, 232 C.C.C. (3d) 51 at paras. 33, 35 and 42 (C.A.); R. v. Finlay and Grellette (1985), 23 C.C.C. (3d) 48 at 58 (Ont. C.A.).

[52] Turning to the Crown’s evidence on the merits as against Alvarez, Mr. Mitchell fairly conceded that it is a weaker case than against Bonilla-Perez. In particular, Alvarez was not the owner of the car, he was not the driver of the car, and he had not otherwise been given custody and control of the car by its owner. Accordingly, the Colvin and Gladue and Re Chambers approach to the element of “control”, as set out above, is not available in the case of Alvarez. His presence as a passenger in the car, even if he had knowledge that the gun was on the floor of the back seat, is equally consistent with “mere indifference or passive acquiescence”, as opposed to “control”. See: R. v. Piaskoski (1979), 52 C.C.C. (2d) 316 (Ont. C.A.); R. v. Terrence, supra; Re Chambers and the Queen, supra; R. v. Williams, supra.

[53] The case against Alvarez, therefore, depends on proof that he personally had “control” of the gun, as a principal, and brought it into the car or that he became a party by doing some positive act to help or encourage Bonilla-Perez’ “control” of the gun. In this regard, the Crown relies on the evidence of suspicious movements by both accused in the BMW, after the police had stopped the car, and on the fact that the gun was not well hidden. From these circumstances, the Crown seeks to infer that the gun was hidden in haste on the floor of the back seat by both Alvarez and Bonilla-Perez, acting in concert. On this theory, they would both be co-principals in joint possession of the gun or one would be aiding and abetting possession by the other. The difficulty with this theory, as previously noted, is that the evidence of suspicious movements by both occupants of the BMW was effectively neutralized in cross-examination. The movements were confined to the front seat of the car and did not include any reaching into the back seat. Furthermore, the movements were admittedly consistent with efforts to find the note provided by Bonilla-Perez’ surety (or to find a pen and piece of paper in order to forge a false note).

[54] For these reasons, I am not satisfied that the Crown has proved the element of “control” as against Alvarez. The counts in the Indictment that require proof of “possession” of the handgun are, therefore, dismissed in relation to Alvarez.

[55] The Crown submits that Count Four of the Indictment does not require proof of “control” of the handgun. That count alleges the offence of being an occupant of a motor vehicle, in which Alvarez knew there was a firearm, and where no occupant of the motor vehicle was lawfully permitted to possess the firearm, contrary to s. 94(1) of the Criminal Code. The only element of this particular offence that is in dispute, as against Alvarez, is the element of “knowledge”.

[56] It is a close case as to whether the Crown has proved that Alvarez was aware of the gun on the floor of the back seat area of the BMW. The gun was partially visible, it was within Alvarez’ reach, he had probably been in the car for at least an hour, and he was undoubtedly a friend or associate of Bonilla-Perez. In all these circumstances, there is a reasonable inference of knowledge. On the other hand, Alvarez was not the owner or driver of the car, and he had no past history with the car, and so the Crown conceded that the common sense inference as to knowledge of the valuable contents of your own car does not apply to Alvarez. Furthermore, it would have been dark in the car at this time of night, the gun was partially hidden inside a glove and under the floor mat, and the gun was in the back seat area whereas Alvarez was in the front passenger seat. In all these circumstances, I am not satisfied that the Crown has proved beyond reasonable doubt that Alvarez had knowledge that the gun was in the car.

D. CONCLUSION

[57] In the result, Bonilla-Perez is found guilty on Counts One to Five, all of which relate to the handgun, and Alvarez is found not guilty on these same five counts. Count One alleges unlicensed possession of a firearm, contrary to s. 91(1); Count Two alleges knowing unlicensed possession of a firearm, contrary to s. 92(1); Count Three alleges possession of a loaded prohibited firearm, contrary to s. 95(1); Count Four alleges being an occupant of a motor vehicle, knowing there was a firearm in the vehicle for which no occupant held a lawful permit, contrary to s. 94(1); and Count Five alleges careless storage of a firearm, contrary to s. 86(1). I will hear submissions, at the time of sentencing, as to whether any of the findings of guilt on these five counts should be stayed pursuant to the rule in Kienapple.

[58] Bonilla-Perez is also found guilty on Counts Six and Seven in which he is charged alone with being in breach of a s. 109 firearms prohibition order, contrary to s. 117.01, and with failing to comply with the curfew term of his recognizance, contrary to s. 145(3).

[59] I am advised that the charge of fail to comply with his recognizance was withdrawn against Alvarez, at the preliminary inquiry, and it is not before me. Alvarez is found not guilty on Counts Eight and Nine in which he is charged alone with breach of probation and with breach of a s. 109 firearms prohibition order. Both counts depend on proof that Alvarez was in possession of the handgun. This element of Counts Eight and Nine has not been proved.

[60] Alvarez is, therefore, found not guilty on all seven counts in which he is charged and Bonilla-Perez is found guilty on all seven counts in which he is charged.

M.A.Code J.

Released: April 3, 2014

COURT FILE NO.: CR 13-10000678-0000

DATE: 20140403

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

OSIRIS BONILLA-PEREZ AND

BYRON ALVAREZ

REASONS FOR JUDGMENT

M.A. Code J.

Released: April 3, 2014