



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 appellants 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 appellants 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 passengers 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 judges 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 judges finding is that the movements witnessed by
    police were the two of them looking for the suretys note, or engaged in
    forging the one provided to police. The theory that the co-accused hid the gun
    without the appellants 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 elses 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.


