Trial judge’s finding was not based on misapprehension of evidence

Grounds

Trial judge’s finding was not based on misapprehension of evidence

After traffic stop, accused and passenger were arrested for failing to comply with their respective recognizances. Police officers returned to police car while they checked identification and to allow accused to search for letter from surety, observing movement by accused and passenger within vehicle. Accused provided forged note from surety. After accused and passenger exited car, officers observed handle of handgun sticking out from under floor mat in back of car. Accused was convicted of possession of loaded prohibited firearm, unauthorized possession of firearm in motor vehicle, careless storage of firearm, and failure to comply with weapon prohibition order while passenger was acquitted of possession charges. Accused appealed. Appeal dismissed. Trial judge found that movements of accused and passenger during traffic stop were confined to front seat of car and did not include any reaching into backseat area. Accused argued that trial judge erred in concluding evidence eliminated possibility of hastily discarded handgun and deprived him of theory that passenger hid handgun without accused’s knowledge during traffic stop. Trial judge’s finding was open to him on record and was not based on misapprehension of evidence. Police officers’ evidence was that accused and passenger moved side-to-side and that any movement forward and back was confined to front seat. There was no direct evidence that accused or passenger had ever reached into back of car. Obvious implication of trial judge’s finding was that movements were made in search for surety’s note or in forging note that was provided to police. Theory that co-accused hid gun without accused’s knowledge was both speculative and implausible.
R. v. Bonilla-Perez (Jul. 6, 2016, Ont. C.A., S.E. Pepall J.A., M. Tulloch J.A., and G. Pardu J.A., CA C59123) Decision at 112 W.C.B. (2d) 558 was affirmed. 132 W.C.B. (2d) 107.