Possession

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Introduction

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.

...
R.S., 1985, c. C-46, s. 4; R.S., 1985, c. 27 (1st Supp.), s. 3; 1994, c. 44, s. 3; 1997, c. 18, s. 2; 2008, c. 18, s. 1.


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;


CDSA

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 CanLII 1338 (BC CA), [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, 1983 CanLII 51 (SCC), [1983] 1 SCR 357, 147 D.L.R. (3d) 724
  4. R v Kocsis 2001 CanLII 3593 (ON CA), (2001) 157 CCC (3d) 564 (ONCA)
  5. R v Anderson
    R v Fisher, 2005 BCCA 444 (CanLII)

Interpretation of Possession

Actual/Personal Possession

“Personal possession” (ie. the actual handling of the thing) 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]

There should be more than mere responsibility over the place where the object is found. There must be control.[4]

In certain circumstances personal possession can be drawn from evidence of fingerprints, but this will depend on the circumstances of the case. The determination is a question of fact.[5]

Fingerprints on a container of drugs, by itself, is not sufficient to establish possession of the drug. [6]

  1. R v Beaver, 1957 CanLII 14 (SCC), [1957] SCR 531 at pp. 541-42
    R v Morelli, 2010 SCC 8 (CanLII), [2010] 1 SCR 253 at para 16
    R v York, 2005 BCCA 74 (CanLII) at para 20 ("Personal possession is established where an accused person exercises physical control over a prohibited object with full knowledge of its character, however brief the physical contact may be, and where there is some evidence to show the accused person took custody of the object willingly with intent to deal with it in some prohibited manner")
    R Terrence (1983), 1983 CanLII 51 (SCC)
  2. R v Franks (G.G.), 2003 SKCA 70 (CanLII), [2003] S.J. No. 455; 238 Sask.R. 1; 305 W.A.C. 1 (C.A.)
    R v Kocsis, 2001 CanLII 3593 (ON CA)
    R v Hess (1948), 94 CCC 48 (BCCA) (*no link)
    R v Bonassin, 2008 NLCA 40 (CanLII) at para 26 (" Described generally, the three components of possession have been stated to be: (1) knowledge of the item, (2) intention or consent to have possession of the item, and (3) control over the item")
  3. R v Beaver (1957), 118 CCC 129 (S.C.C.), 1957 CanLII 14
  4. Bertucci, 2002 CanLII 41779 (ON CA), at para 20
  5. R v Lepage, [1995] 1 SCR 654, 1995 CanLII 123 (SCC)
  6. R v Breau, (1987) 33 CCC (3d) 354 (N.B.C.A.) (*no link)
    R v Kuhn (No. 1) (1973), 15 CCC (2d) 1, 1973 CanLII 922 (SKCA)

Constructive Possession

Whether a possession under s. 4(3) exists is a question of fact.[1]

Constructive possession will apply where there is no actual possession, but there is circumstantial evidence that shows "that the accused may still be attributed to having possession of a certain object or thing."[2]

Constructive possession requires the following:[3]

  1. knowledge of the item
  2. intent/consent to have possession of the item
  3. control over the item[4]

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

A person cannot have constructive possession where it is established that another person has exclusive control.[6]

Possession can still be established even if it considered the property of some third party.[7]

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.[8] Even where the accused did not have exclusive control over the place, he can still be found in joint possession of the items.[9]

Constructive possession does not require proof of actual possession at any time.[10]

A person who is to receive a package by mail can be found to be in constructive possession of its contents even where it may have been removed prior to delivery.[11]

  1. R v Pham, 2005 CanLII 44671 (ON CA), at para 27
  2. R v Callan, 2014 SKQB 173 (CanLII), at para 10
  3. R v Kocsis, 2001 CanLII 3593 (ONCA), (2001), 157 CCC (3d) 564
    R v Fisher, 2005 BCCA 444 (CanLII)
  4. R v Terrence, 1983 CanLII 51 (SCC), [1983] 1 SCR 357
  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 SCR 940
  6. R v Marshall (1969), 3 CCC 149 (ABCA) (*no link)
  7. R v Pham
  8. R v Basarowich (C.J.), 2010 MBQB 4 (CanLII), 249 Man.R. (2d) 64 at para 10
  9. R v Basarowich, para 11
  10. R v Fisher at para 24 ("neither constructive possession nor joint possession requires proof of manual handling...")
  11. R v Brenton, 2016 CanLII 24207 (NL SCTD), at para 18

Joint Possession

Joint possession amounts to a form of possession wherein multiple people can be deemed to be in possession or custody of the object. By function of s. 4(3)(b) custody and possession of a second party is deemed where "with the knowledge and consent of the rest" the primary persons "has anything in his custody or possession".

To establish joint possession there must be:[1]

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

It is necessary that there be some evidence of "active concurrence" by the accused to possession by another person. Passive acquiescence is not enough.[2]

In circumstances of spouses living together in which one is engaging in criminal activity, a court may infer the elements of possession to the non-participatory co-accused spouse where they are shown to be aware of the criminal activity going on in a residence she resides in and does little if anything to stop it.[3]

Joint possession does not require proof of actual possession at any time.[4]

  1. R v Terrence 1983 CanLII 51 (SCC), [1983] 1 SCR 357
    R v Williams, 1998 CanLII 2557 (ON C.A.)
    R v Pham 2005 CanLII 44671 (ON CA), (2005), O.R. (3d) 401, 203 CCC (3d) 326 (Ont.C.A.) at paras 15-17
    R v Bjornson, 2009 BCSC 1780 (CanLII) at para 18
    R v Quach, 2008 SKPC 62 (CanLII)
    R v Franks, [2003] S.J. No. 455, 2003 SKCA 70 (CanLII)
    Re Chambers and The Queen, 1985 CanLII 169 (ON C.A.)
    R v Fisher, 2005 BCCA 444 (CanLII)
  2. R v Marshall (1969), 3 CCC 149 (ABCA) (*no link)
    Pham
    R v Caldwell (1972), 7 CCC (2d) 285 (ABCA), 1972 ALTASCAD 33 (CanLII)
  3. R v Mihalkov, 2009 ONCA 154 (CanLII) - majority upholds trial judge's inference. Dissent trial judge cannot impose duty to report police
  4. R v Fisher, at para 24 ("neither constructive possession nor joint possession requires proof of manual handling...")

Innocent Possession

See also: Innocent Possession

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.[1]

There are certain objects, where "human experience tells us that the nature of the property found would simply not be the subject of unknowing possession."[2]

  1. R v Glushek, 1978 ALTASCAD 175 (CanLII), (1978), 41 CCC (2d) 380 (Alta. S.C. App. Div.)
    R v Christie (1978), 41 CCC (2d) 282 (N.B. S.C. App. Div.) (*no link)
    R v York 2005 BCCA 74 (CanLII), (2005), 193 CCC (3d) 331 (BCCA)
    See also R v Loukas, 2006 ONCJ 219 (CanLII), [2006] O.J. No. 2405 (Ont. C.J.)
  2. R v Ho, 2010 ABPC 258 (CanLII) at para 7
    R v Balasuntharam, 1999 CanLII 1979 (ON CA), (1999), O.J. No. 4861
    R v Drury and Hazard, 2000 MBCA 100 (CanLII)

Elements

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]

In establishing possession, it is expected that there will be gaps in the evidence that can be filled by inferences.[3]

  1. R v Brar (G.), 2008 MBQB 133 (CanLII), 234 Man.R. (2d) 1 at para 37, 38
  2. R v Brar, at para 38
  3. R v Anderson-Wilson, 2010 ONSC 489 (CanLII), at para 73 (“will involve hiatuses in the evidence which can be filled only by inference”)

Manual Handling of Object

The manual handling of an object it not a necessary element of proof in constructive possession or joint possession.[1]

Brief handling of an object for the purpose of disposing of it, even while aware of its illegal character, is not enough to be in possession of it as it is conduct "inconsistent with retaining or dealing with the goods".[2]

  1. R v Fisher, 2005 BCCA 444 (CanLII), Smith J.A.
  2. R v Glushek (1978), 1978 ALTASCAD 175 (CanLII), 41 CCC (2d) 380 - brief handling of stolen goods

Knowledge

See also: Knowledge and Wilful Blindness

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]

Knowledge can be inferred by recklessness or willful blindness.[9] It can be proven by circumstantial evidence without any direct proof.[10]

The knowledge component of possession can established where contraband is found in plain view in a common area of a residence.[11]

Sparling

  1. R v Beaver, 1957 CanLII 14 (SCC), [1957] SCR 531, (1957), 118 CCC 129 (S.C.C.) and
    R v Martin (1948), 1948 CanLII 101 (ON CA), 92 CCC 257 at p. 266 (Ont. C.A.)
  2. R v Chalk 2007 ONCA 815 (CanLII) at para 18
  3. R v Traimany 2011 MBQB 15 (CanLII) at para 34
  4. R v Sparling (1988), O.J. No. 107, [1988] O.J. No. 107 (Ont. H.C.)(*no link) 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 (CanLII) - 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”)
  9. see Intention
    R v Bennett, 2008 CanLII 3411 (ON SC) at para 17
    R v Aiello (1978), 1978 CanLII 62 (ON CA), 38 CCC (2d) 485, 30 N.R. 558
  10. R v Aiello
  11. R v Sparling, supra

Consent and Intent

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 CCC (2d) 282 (NBCA)(*no link) -- woman held onto discovered drugs in car for 1 hour

Control

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]

Proof of manual handling of the object does not necessary imply control. There may be no control where the handling was for the sole purpose of turning it over to the authorities or to destroy it.[2]

It is not necessary that the accused actually examine or look at the item to be in possession of it. [3]

A finding that the accused was in control of the vessel containing the object at issue, is not sufficient to establish control of the object itself.[4]

Simply being one of several persons residing in a residence is not enough to establish control.[5] 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."[6]

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."[7]

Control can be established by the fact that the accused had the ability to grant and withhold consent to contraband.[8]

  1. R v Marshall, [1969] 3 CCC (3d) 149 (Alta. C.A.) (*no link) -- acquitted of drug possession as he had no control over drugs in vehicle he was in See also R v Pham 2005 CanLII 44671 (ON CA)
  2. R v Terrence, 1983 CanLII 51 (SCC), [1983] 1 SCR 357
  3. R v Daniels 2004 NLCA 73 (CanLII), (2004), 191 CCC (3d) 393 at para 12 (Nfld. C.A.)
  4. R v Bertucci, 2002 CanLII 41779 (ON CA), at para 20 - judge misdirected by stating they may find control if accused in control of vessel
  5. R v Masters, 2014 ONCA 556 (CanLII) at para 23
  6. R v Wu, 2010 BCCA 589 (CanLII) - three adults lived in a house with a grow-op on the upper floor. No evidence of active involvement in grow-op.
  7. Wu
  8. R v Savory, 1996 CanLII 2001 (ON CA), (1996), 94 O.A.C. 318
    R v Sahlen (2005), Carswell Alta. 2115 (ABQB) (*no link)
    R v Chambers, 1985 CanLII 169 (ON CA) - ostensible control of access to accused's room amounted to control over drugs found therein

Specific Scenarios

Items Found in a Vehicle

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]

Simply being a passenger is not prima facie evidence of possession of contraband inside.[2]

"[M]ere passive acquiescence in the transportation of the drugs" is not sufficient [3]

A sole occupant and driver in close proximity to drugs in plain view allows the inference of knowledge and control.[4]

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.[5]

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. [6]

Where there are multiple occupants in a vehicle containing contraband, knowledge and consent can be inferred based on the relationship and mutual activities of the occupants as well as the vehicle's contents.[7]

A driver is not necessarily going to be in the same position as a passenger. The driver, often operating with the owner's consent, can determine who enters and stays in the vehicle. The pasture me "merely acquiesce" to the driver. [8]

  1. Gallant v The Queen (1960), 128 CCC 129 (NB SCAD) (*no link) per Ritchie J.A. at p 131 - presumption exists
    c.f. R v Lincoln, 2012 ONCA 542 (CanLII) - no presumption
    R v Watson, 2011 ONCA 437 (CanLII), at paras 11-13
    R v Vauteur (1970), 1 CCC 324 (*no link)
  2. R v Sigouin, [1966] 1 CCC 235 (*no link)
    R v Sutherland et al., 2005 MBQB 230 (CanLII)
  3. R v Williams 1998 CanLII 2557 (ON CA), (1998), 125 CCC (3d) 552 (Ont. C.A.), at page 558
  4. R v Mulligan-Brum, 2011 BCCA 410 (CanLII) at para 13
  5. R v Grey, 1996 CanLII 35 (ON CA), [1996] O.J. No. 1106 (C.A.), at para 15
  6. In R v Lou Hay Hung, 1946 CanLII 118 (ON CA), (1946), 85 CCC 308 (Ont. C.A.)
  7. R v McRae, 1967 CanLII 440 (SK CA), (1967), 3 CCC 122 (Sask. C.A.)
  8. R v Anderson-Wilson 2010 ONSC 489 (CanLII)

Items Found in a Residence

Items found in a house can be subject to constructive possession by a person residing there.[1] However, occupancy alone is not always sufficient to establish possession.[2]

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”.[3]

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.[4]

Frequently, drugs found in a house may be the subject of constructive possession of the resident.[5]

  1. e.g. R v Biggs, 2016 ONCA 910 (CanLII) per MacPherson JA
  2. R v Grey (1996), 1996 CanLII 35 (ON CA), 28 O.R. (3d) 417 (C.A.) per Laskin JA ("I would not prescribe a firm rule for inferring knowledge from occupancy")
  3. R v Emes 2001 CanLII 3973 (ONCA) at 8
    R v Basarowich, 2010 MBQB 4 (CanLII) at para 26
    c.f. R v Biggs, supra
  4. R v Colvin and Gladue (1942), 78 CCC 282 (BCCA)(*no link) 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 (CanLII) at para 23
  5. R v Biggs, supra
    Grey, supra
    R v Pham (2005), 2005 CanLII 44671 (ON CA), 77 O.R. (3d) 401 (C.A.), aff’d 2006 SCC 26 (CanLII), [2006] 1 S.C.R. 940
    R v Turner, 2012 ONCA 570 (CanLII), 295 O.A.C. 274
    R v Savoury, [2008] O.J. No. 2896 (S.C.)
    R v Allison, 2016 ONSC 2446

Possession of Firearms

When considering the circumstances of a discovered firearm, factors to consider when drawing an inference of possession include:[1]

  • The physical proximity of the fire run to the accused;
  • The degree of visibility of the firearm
  • The degree of communal use of A vehicle containing the firearm;
  • The nature and number of weapons in a particular space;
  • The nature of other items located proximate to the firearm capable of providing context for inferences of knowledge in control (E.g. binoculars, map, duct tape,masks etc.)

Generally, where the items hidden, more than physical proximity will be needed.[2]

Criminal responsibility for certain weapons offences such as s. 94(1) can be established by voluntary occupancy in a vehicel knowing there is a weapon inside does not require proof of control.[3]

  1. R v Anderson-Wilson 2010 ONSC 489 (CanLII)
  2. Anderson-Wilson
  3. Anderson-Wilson at para 68 ("Criminal liability for voluntary occupancy in a vehicle knowing there is a weapon in the conveyance does not, unlike a possession charge, require proof of control")

Possession of Drugs

Possession of controlled substances can be made on the totality of the circumstances.

A history of unexplained spending without a proportionate source of income can lead to an inference of possession of drugs found on the premises.[1]

  1. R v Ramos, 2015 SKQB 57 (CanLII)

Other

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

A mould capable of manufacturing counterfeit coins found buried in the backyard, without any other evidence, cannot be used to infer possession by the resident.[3]

  1. R v Lincoln, 2012 ONCA 542 (CanLII), at paras 2-3
  2. R v T.A.K., 2005 BCCA 293 (CanLII)
  3. R v MacLeod (J.M.) et al., 2013 MBCA 48 (CanLII) citing R v Haggarty, [1947] 3 D.L.R. 335(*no link) ("...the mere finding of an article buried in the garden of a householder does not, in itself, and in the absence of some evidence indicating his knowledge of its existence, or consent to its remaining in that place, or some other surrounding circumstances from which a reasonable inference could be drawn inculpating the householder, ...")

Case Digests

See Also