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Canadian Criminal Law/Possession

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Introduction

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There are three types of possession:[1]

  • personal / actual possession
  • constructive possession
  • joint possession

Possession can be proven through both direct or circumstantial evidence.[2]

These forms of possession are outlined in s.4 of the Criminal Code.

Possession
4. (3) For the purposes of this Act,

(a) a person has anything in possession when he has it in his personal possession or knowingly
(i) has it in the actual possession or custody of another person, or
(ii) has it in any place, whether or not that place belongs to or is occupied by him, for the use or benefit of himself or of another person; and
(b) where one of two or more persons, with the knowledge and consent of the rest, has anything in his custody or possession, it shall be deemed to be in the custody and possession of each and all of them.

– CCC

Possession under s. 2 the Controlled Drugs and Substances Act adopts the same definition as the Criminal Code:

Definitions
2. (1) In this Act,
...
“possession”
“possession” means possession within the meaning of subsection 4(3) of the Criminal Code;


– CCC

At common law, possession requires control[3] as well as knowledge[4].

Likewise, the statutory requirements of s.4(3), require that the totality of evidence establish beyond a reasonable doubt that the accused had knowledge and control.[5]


  1. ↑ R v. Anderson [1995] 29 W.C.B. (2d) 357 (B.C.C.A)
  2. ↑ Warner v. Metropolitan Police Commissioner (1968), 52 Cr. App. R. 373 (H.L.)
  3. ↑ R v Terrance 1982 1 SCR 357
  4. ↑ R v Kocsis 2001 157 CCC 3d 564 (ONCA)
  5. ↑ R. v. Anderson (1995), 67 B.C.A.C. 311>
    R. v. Fisher, 2005 BCCA 444


Interpretation of Possession

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Actual/Personal Possession

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“Personal possession” requires that “the accused must be aware that he or she has physical custody of the thing in question, and must be aware as well of what that thing is. Both elements must co-exist with an act of control (outside of public duty)”[1] Thus, actual/Personal possession requires that:[2]

  1. there be an actual physical custody of the object
  2. a knowledge of the nature of the object while with custody.[3]


Constructive Possession

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Constructive possession requires the following:[4]

  1. knowledge of the item
  2. intent/consent to have possession of the item
  3. control over the item

The crown must prove knowledge extending beyond "quiescent knowledge" that discloses some degree of control of the item[5]

Possession can still be established even if it considered the property of some third party.[6]

Constructive possession of drugs found in a suite or house can be established where the accused is shown to have control over a property searched and knowledge that the items were in the place.[7] Even where the accused did not have exclusive control over the place, he can still be found in joint possession of the items.[8]

  1. ↑ R. v. Beaver, 1957 CanLII 14 (SCC), [1957] S.C.R. 531 at pp. 541-42
    R. v. Morelli, 2010 SCC 8 (CanLII), 2010 SCC 8, [2010] 1 S.C.R. 253 at para. 16
  2. ↑ R. v. Franks (G.G.), [2003] S.J. No. 455; 238 Sask.R. 1; 305 W.A.C. 1 (C.A.)
  3. ↑ R. v. Beaver (1957), 118 C.C.C. 129 (S.C.C.)1957 CanLII 14
  4. ↑ R v Kocsis, 2001 CanLII 3593 (ONCA), (2001), 157 C.C.C. (3d) 564
  5. ↑ R. v. Pham 2005 CanLII 44671 (ON CA), (2005), 36 C.R. (6th) 200 (affirmed by the Supreme Court of Canada, 2006 SCC 26 (CanLII), [2006] 1 S.C.R. 940)
  6. ↑ R v Pham
  7. ↑ R. v. Basarowich (C.J.), 2010 MBQB 4 (CanLII), 2010 MBQB 4, 249 Man.R. (2d) 64 at para. 10
  8. ↑ R v Basarowich, para. 11

Joint Possession

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Joint possession amounts to a form of possession wherein multiple people can be deemed to be in possession or custody of the object. To establish joint possession there must be:

  1. knowledge of the object,
  2. consent of the accused,
  3. and a degree of control over it[1]

Innocent Possession

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There is some suggestion that where the sole intent at all times of possession is to destroy or removing the accused's control over the contraband is not criminal.[2]


  1. ↑ R. v. Terrence [1983] 1 SCR 357 [1];
    R. v. Williams, 1998 CanLII 2557 (ON C.A.) [2];
    R. v. Pham 2005 CanLII 44671, (2005), O.R. (3d) 401, 203 C.C.C. (3d) 326 (Ont.C.A.) at paras. 15-17 [3];
    R. v. Bjornson, 2009 BCSC 1780 at para. 18 [4];
    R. v. Quach, 2008 SKPC 62 [5]
    R. v. Franks, [2003] S.J. No. 455
    Re Chambers and The Queen, 1985 CanLII 169 (ON C.A.) [6]
  2. ↑ R. v. Glushek (1978), 41 C.C.C. (2d) 380 (Alta. S.C. App. Div.)
    R. v. Christie (1978), 41 C.C.C. (2d) 282 (N.B. S.C. App. Div.)
    R. v. York 2005 BCCA 74 (CanLII), (2005), 193 C.C.C. (3d) 331 (B.C.C.A.)
    See also R. v. Loukas, [2006] O.J. No. 2405 (Ont. C.J.)

Elements

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Proof of possession cannot be established by looking at the evidence individually, but rather the court must look at the evidence as a whole.[1]

The onus remains on the crown throughout. Even where the evidence "cries out for an explanation by the accused", it will simply create an evidential onus or even create a prima facie case, however, it will not require the accused to testify or prohibit from arguing that the crown failed to prove the element.[2]

  1. ↑ R. v. Brar (G.), 2008 MBQB 133 (CanLII), 2008 MBQB 133, 234 Man.R. (2d) 1 at para. 37, 38
  2. ↑ R v Brar, 2008 MBQB 133 at para. 38

Knowledge

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There cannot be possession without knowledge of the nature of the object.[1] Knowledge requires that an accused have knowledge of “the criminal character of the item in issue”[2] It must be proven beyond mere “quiescent knowledge” that disclosed some degree of control over the items in question.[3]

Knowledge can be established by circumstantial evidence.[4] It can also be established by direct or circumstantial evidence, or a combination of both.[5]

However, it will often depend on the visibility of the object as well as the accused's connection with the location.[6]

For example, where drugs are found in a vehicle or house the courts consider the control the accused had over the location as well as the likelihood of the accused being aware of where the items were found.[7]

Occupancy does not automatically infer knowledge of the items within the dwelling.[8]

  1. ↑ R. v. Beaver (1957), 118 C.C.C. 129 (S.C.C.) and
    R. v. Martin (1948), 92 C.C.C. 257 at p.266 (Ont. C.A.)
  2. ↑ R. v. Chalk 2007 ONCA 815 at para. 18
  3. ↑ R. v. Traimany 2011 MBQB 15 at 34
  4. ↑ R. v. Sparling, [1988] O.J. No. 107 (Ont. H.C.) at p. 6 :
    "There is no direct evidence of the applicant’s knowledge of the presence of narcotics in the residence. It is not essential that there be such evidence for as with any other issue of fact in a criminal proceeding, it may be established by circumstantial evidence. In combination, the finding of narcotics in plain view in the common areas of the residence, the presence of a scale in a bedroom apparently occupied by the applicant, and; the applicants apparent occupation of the premises may serve to found an inference of the requisite knowledge"
  5. ↑ R. v. Pham, 2005 CanLII 44671 (ON CA), at para. 18
  6. ↑ R. v. Grey, 1996 CanLII 35 (ON C.A.)
  7. ↑ R. v. Gordon, 2011 ONSC 5650 - acquittal - drugs found in vent of car
  8. ↑ R. v. Grey 1996 CanLII 35 (ON CA), (1996), 28 O.R. (3d) 417 (Ont. C.A.), per Laskin J.A. at p. 423 (“I would not prescribe a firm rule for inferring knowledge from occupancy”)
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The element of consent to possess an object requires that the accused consent to the object remaining in place after he or she has knowledge of its existence. This is not limited to those who approve of the custody of the drugs. A person who discovers drugs and spends time maintaining custody of it while considering what to do with it may be found to consent to possessing it.[1]


  1. ↑ R. v. Christie (1978), 41 C.C.C.(2d) 282 (N.B.C.A.) -- woman held onto discovered drugs in car for 1 hour

Control

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The element of control over the object is established by showing that the accused had an intention to exercise control. Where the person is shown to have control over the area where the object is stored, they can be found to exercise control over the object itself.[1]

It is not necessary that the accused actually examine or look at the item to be in possession of it. [2]

Control requires that the Crown "prove is that an accused had the ability to exercise some power (i.e., some measure of control) over the item in issue. It is not necessary for the Crown to prove that such power was in fact exercised."[3]

A trier-of-fact may conclude that "someone living in premises in which marihuana plants or other illegal drugs are openly located is in a position to exercise some measure of control over those drugs."[4]

  1. ↑ R. v. Marshall, [1969] 3 C.C.C. (3d) 149 (Alta. C.A.) -- acquitted of drug possession as he had no control over drugs in vehicle he was in See also:R. v. Pham (K.T.), [2005] O.J. No. 5127; 204 O.A.C. 299 (C.A.)
  2. ↑ R. v. Daniels 2004 NLCA 73 (CanLII), (2004), 191 C.C.C. (3d) 393 at para. 12 (Nfld. C.A.)
  3. ↑ R v Wu, 2010 BCCA 589 - three adults lived in a house with a grow-op on the upper floor. No evidence of active involvement in grow-op.
  4. ↑ Wu

Specific scenarios

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Items found in a Vehicle

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There are differing lines of cases on whether finding of an item within a motor vehicle owned and operated by an accused is prima facie proof of possession by the accused. [1]

"[M]ere passive acquiescence in the transportation of the drugs" is not sufficient [2]

A sole occupant and driver in close proximity to drugs in plain view allows the inference of knowledge and control. (R v Mulligan-Brum, 2011 BCCA 410 at para 13)

The Crown must prove the accused knew of the presence of the drug in the vehicle and that that he had a measure of control over it.[3]

However, "where one of two persons has opium in his custody or possession, another who knows that fact, even though he has no measure of control over it, but nevertheless co‑operates with the person who has such custody in an effort to prevent detection" that person has possession. [4]

  1. ↑ Gallant v The Queen (1960), 128 CCC 129 (NB SCAD) per Ritchie J.A. at p 131 - presumption exists
    c.f. R. v. Lincoln, 2012 ONCA 542 - no presumption
    R. v. Watson, 2011 ONCA 437 (CanLII), at paras. 11-13
  2. ↑ R. v. Williams 1998 CanLII 2557 (ON CA), (1998), 125 C.C.C. (3d) 552 (Ont. C.A.), at page 558
  3. ↑ R. v. Grey, [1996] O.J. No. 1106 (C.A.), at para. 15
  4. ↑ In R. v. Lou Hay Hung (1946), 85 C.C.C. 308 (Ont. C.A.)

Items Found in a Residence

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Generally, personal papers are to be found in a location where a person has access and control. It is a valid inference to infer that where documents such as “income tax forms, invoices, cancelled cheques, leases, insurance papers and the like” are found in a residence that the person identified in the documents is an occupant with “a significant level of control”.[1]

Mere presence in a residence and knowledge of the presence of contraband in the room or residence is not sufficient to establish possession, evidence must show control.[2]

  1. ↑ R v Emes 2001 CanLII 3973 (ONCA) at 8
    R v Basarowich, 2010 MBQB 4 at para. 26
  2. ↑ R. v. Colvin and Gladue (1942), 78 C.C.C. 282 (B.C.C.A.) both accused persons were found visiting a premise where narcotics were present, found not in possession of the drugs
    R. v. Edwards, 2012 ONCJ 422 at para 23

Other

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Knowledge may be inferred from physical possession of a receptacle containing concealed contraband, however, it cannot create a presumption.[1]

A passenger may be in possession of a stolen car. It depends on the number of factors suggesting knowledge and control. Suggested factors include:[2]

  1. recency of theft
  2. driver fled once there was a collision
  3. actions, demeanour and utterances of passenger suggesting knowledge and control
  4. fleeing from the car with the driver and attempt to dispose of evidence
  5. the passengers ability to see the damage to the ignition from starting without a key
  1. ↑ R. v. Lincoln, 2012 ONCA 542 (CanLII), at paras. 2-3
  2. ↑ R. v. T.A.K., 2005 BCCA 293 (CanLII)

See Also

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