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APPEALS - Grounds - Unreasonable verdict

Monday, September 28, 2020 @ 9:35 AM  

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Appeal by the accused from conviction for possession of a loaded restricted firearm, possession of a firearm while prohibited from doing so and possession of a restricted firearm. The appellant argued the trial judge erred in her instructions to the jury on the essential element of knowledge and that the verdict was unreasonable. The appellant was arrested for driving while prohibited and possession of drugs. Police searched the vehicle driven by the appellant incidental to the arrest and located a handgun under the driver’s seat of the vehicle loosely wrapped in a brown paper towel. The firearm was not registered or licensed. The appellant was prohibited from possessing a firearm of any kind. The appellant’s DNA was found on the handle, muzzle and certain operating parts of the gun. The appellant argued the jury misunderstood the elements of constructive possession and whether knowledge could be inferred from the appellant’s admission that the gun was a restricted weapon. The appellant also argued the officer’s handling of the gun at the scene, particularly the handle, together with the multiplicity of individuals associated with the vehicle did not rule out the possibility that the appellant was unaware that the gun was in the vehicle. He argued the officer could have transferred the appellant’s DNA from elsewhere in the vehicle onto his gloves when he put them on and subsequently onto the handgun.

HELD: Appeal allowed in part. The count for possession of a restricted firearm was stayed based on Kienapple. The judge correctly set out the legal test relating to constructive possession. The three elements of constructive possession were expressly stated to the jury in oral and written instructions. The jury was told that that knowledge of the character of the object was a distinct element from “knowingly puts or keeps the object in a particular place” and that all three elements of constructive possession must be proved. The jury instructions did not leave the jury with the impression that proof of the nature of the object would be sufficient proof of the presence of the object. The trial judge also expressly articulated the knowledge elements of constructive possession in the instructions. At defence counsel’s suggestion, the judge explained to the jury that the admission that the firearm was a restricted firearm did not constitute proof of knowledge for the purposes of establishing possession. The judge properly explained the use and limits of the admission to the jury. The verdict was not unreasonable. There was an abundance of evidence upon which a properly instructed jury acting judicially could have rendered the verdicts in question. It was open to the jury to find that the defence contamination theory did not raise a reasonable doubt. It would not have been unreasonable for the jury to conclude that at least some of the appellant’s DNA on the various surfaces of the gun came from the appellant directly.

R. v. Mills, [2020] B.C.J. No. 1261, British Columbia Court of Appeal, P.M. Willcock, S.A. Griffin and P. Abrioux JJ.A., August 13, 2020. Digest No. TLD-September282020002