Possession

From Criminal Law Notebook
This page was last substantively updated or reviewed January 2024. (Rev. # 95868)

General Principles

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
[omitted (1) and (2)]
(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.

[omitted (4), (5), (6), (6.1), (7) and (8)]
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; 2014, c. 31, s. 2.

– CCC (CanLII), (DOJ)

Note up: 4(3)

Section 4(3) is not limited to merely defining "possession" wherever it is found in the Code. It applies to all offences where the act of possession is a material element to the offence.[3]

Knowledge and Control

At common law, possession requires control[4] as well as knowledge.[5]

The statutory requirements of s.4(3) mean that the totality of evidence establish beyond a reasonable doubt that the accused had knowledge and control.[6]

Controlled Drugs and Substances Act

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) [forms of possession defined] of the Criminal Code; ...
 [omitted (2) and (3)]
1996, c. 8, s. 35, c. 19, s. 2; 2001, c. 32, s. 47; 2017, c. 7, s. 1; 2018, c. 16, s. 194.

– CDSA (CanLII), (DOJ)

Note up: 2

  1. ↑ R v Anderson, 1995 CanLII 1338 (BCCA), [1995] 29 WCB (2d) 357 (BCCA), per Rowles JA
  2. ↑ Warner v Metropolitan Police Commissioner (1968), 52 Cr. App. R. 373 (H.L.) (UK)
  3. ↑ R v Lovis; R v Moncini, 1974 CanLII 170 (SCC), [1975] 2 SCR 294, per Martland J
  4. ↑ R v Terrance, 1983 CanLII 51 (SCC), [1983] 1 SCR 357, 147 DLR (3d) 724, per Ritchie J
  5. ↑ R v Kocsis, 2001 CanLII 3593 (ON CA), 157 CCC (3d) 564, per MacPherson JA
  6. ↑ Anderson, supra
    R v Fisher, 2005 BCCA 444 (CanLII), 200 CCC (3d) 338, per Smith JA

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]

For the purpose of possession under s. 4(3)(a)(ii), there should be more than mere responsibility over the place where the object is found. There must be control over the place where the item is kept.[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, per Cartwright J, at pp. 541-42
    R v Morelli, 2010 SCC 8 (CanLII), [2010] 1 SCR 253, per Fish J, at para 16
    R v York, 2005 BCCA 74 (CanLII), 193 CCC (3d) 331, per Oppal JA, 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 v Terrence, 1983 CanLII 51 (SCC), [1983] 1 SCR 357, per Ritchie J
  2. ↑ R v Franks (G.G.), 2003 SKCA 70 (CanLII), [2003] S.J. No 455; 238 Sask.R. 1; 305 W.A.C. 1 (CA), per Bayda JA
    R v Kocsis, 2001 CanLII 3593 (ON CA), 157 CCC (3d) 564, per MacPherson JA
    R v Hess, 1948 CanLII 349 (BCCA), 94 CCC 48, per O'Halloran JA
    R v Bonassin, 2008 NLCA 40 (CanLII), 236 CCC (3d) 562, per Welsh JA, 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 CanLII 14, (1957), 118 CCC 129 (SCC), per Cartwright J
  4. ↑ R v Bertucci, 2002 CanLII 41779 (ON CA), 169 CCC (3d) 453, per O'Connor JA, at para 20
  5. ↑ R v Lepage, 1995 CanLII 123 (SCC), [1995] 1 SCR 654, per Sopinka J
  6. ↑ R v Breau, 1987 CanLII 6811 (NB CA), 33 CCC (3d) 354, per Ayles JA
    R v Kuhn, 1973 CanLII 922 (SKCA), (No. 1) (1973), 15 CCC (2d) 1, per Culliton CJ

Constructive Possession

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."[1]

Requirements

Constructive possession requires the following:[2]

  1. knowledge of the item
  2. intent/consent to possess the item
  3. control over the location of the item[3]

Assessment must be done in light of the "totality of the facts."[4]

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

Constructive possession does not require proof of actual possession at any time.[6]

Wilful blindness

The knowledge requirement can be established by wilful blindness.[7]

Third Parties

There is no obligation to prove exclusive access to amount to constructive possession.[8]

Possession can still be established even if it considered the property of some third party.[9] While ownership is relevant to possession, it is a separate concept.[10]

A person cannot have constructive possession where it is established that another person has exclusive control.[11]

Items in Home

Mere tenancy or occupancy of a place where a thing is found does not create a presumption of possession.[12]

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.[13] Even where the accused did not have exclusive control over the place, he can still be found in joint possession of the items.[14]

Possessing Contents of Package

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.[15]

Appellate Review

Whether a possession under s. 4(3) exists is a question of fact.[16]

  1. ↑ R v Callan, 2014 SKQB 173 (CanLII), per Konkin J, at para 10
  2. ↑ R v Kocsis, 2001 CanLII 3593 (ON CA), 157 CCC (3d) 564, per MacPherson JA
    R v Fisher, 2005 BCCA 444 (CanLII), 200 CCC (3d) 338, per Smith JA
    R v Pham, 2005 CanLII 44671 (ON CA), 203 CCC (3d) 326, per MacPherson JA
    R v Roan, 1985 ABCA 24 (CanLII), 17 CCC (3d) 534, per Harradence JA
  3. ↑ R v Terrence, 1983 CanLII 51 (SCC), [1983] 1 SCR 357, per Ritchie J
  4. ↑ R v Ahmadzai, 2012 BCCA 215 (CanLII), per MacKenzie JA
  5. ↑ Pham, supra (affirmed by the Supreme Court of Canada), 2006 SCC 26 (CanLII), [2006] 1 SCR 940, per McLachlin CJ
  6. ↑ Fisher, supra, at para 24 ("neither constructive possession nor joint possession requires proof of manual handling...")
  7. ↑ R v Lights, 2020 ONCA 128 (CanLII), per Watt JA, at paras 51 to 52
  8. ↑ R v Choudhury, 2021 ONCA 560 (CanLII), per Jamal JA, at para 22
  9. ↑ Pham, supra
  10. ↑ Fisher, supra, at para 33
    R v John, 2023 NBCA 28 (CanLII), per LeBlanc JA
  11. ↑ R v Marshall, 1968 CanLII 999 (AB CA), CCC 149 (ABCA), per McDermid JA
  12. ↑ R v Choudhury, 2021 ONCA 560 (CanLII), per Jamal JA, at para 19
    R v Lights, 2020 ONCA 128 (CanLII), per Watt JA, at para 50
  13. ↑ R v Basarowich (C.J.), 2010 MBQB 4 (CanLII), 249 Man.R. (2d) 64, per Greenberg J, at para 10
  14. ↑ Basarowich, ibid., at para 11
  15. ↑ R v Brenton, 2016 CanLII 24207 (NLSCTD), per Handrigan J, at para 18
  16. ↑ R v Pham, 2005 CanLII 44671 (ON CA), 203 CCC (3d) 326, per Kozak J, at para 27

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]

Consent must be more than "indifference or passive acquiescence."[3]

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.[4]

Joint possession does not require proof of actual possession at any time.[5]

Control can be derived from knowledge of the presence of the item in their place of residence coupled with the choice not to refuse storage of the item there by another person.[6]

Each element must be proven beyond a reasonable doubt.[7]

  1. ↑ R v Terrence, 1983 CanLII 51 (SCC), [1983] 1 SCR 357, per Ritchie J
    R v Williams, 1998 CanLII 2557 (ON CA), 125 CCC (3d) 552, per McMurtry CJ
    R v Pham, 2005 CanLII 44671 (ON CA), O.R. (3d) 401, 203 CCC (3d) 326, per Kozak J, at paras 15 to 17
    R v Bjornson, 2009 BCSC 1780 (CanLII), per Bennett J, at para 18
    R v Quach, 2008 SKPC 62 (CanLII), 319 Sask R 223, per Hinds J
    R v Franks, 2003 SKCA 70 (CanLII), [2003] S.J. No 455, per Bayda CJ
    Re Chambers and The Queen, 1985 CanLII 169 (ON CA), 20 CCC (3d) 440, per Martin JA
    R v Fisher, 2005 BCCA 444 (CanLII), 200 CCC (3d) 338, per Smith JA
  2. ↑ R v Marshall, 1968 CanLII 999 (AB CA), CCC 149 (ABCA), per McDermid JA
    Pham
    R v Caldwell, 1972 ALTASCAD 33 (CanLII), 7 CCC (2d) 285 (ABCA), per Allen JA
  3. ↑ R v Piaskoski, 1979 CanLII 2920 (ON CA), 52 CCC (2d) 316, per Martin JA
  4. ↑ R v Mihalkov, 2009 ONCA 154 (CanLII), 243 CCC (3d) 173, per Doherty JA (2:1) - majority upholds trial judge's inference. Dissent trial judge cannot impose duty to report police
  5. ↑ Fisher, supra, at para 24 ("neither constructive possession nor joint possession requires proof of manual handling...")
  6. ↑ Chambers and The Queen, 1985 CanLII 169 (ON CA), 20 CCC (3d) 440, per Martin JA
  7. ↑ Fisher, supra

Innocent Possession

See also: Innocent Possession

There is 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] Stated differently, there must be an intent to control the item in question.[2]

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."[3]

  1. ↑ R v Glushek, 1978 ALTASCAD 175 (CanLII), 41 CCC (2d) 380 (Alta. S.C. App. Div.), per Sinclair JA
    R v Christie, 1978 CanLII 2535 (NB CA), 41 CCC (2d) 282 (N.B. S.C. App. Div.), per Hughes CJ
    R v York, 2005 BCCA 74 (CanLII), 193 CCC (3d) 331, per Oppal JA
    See also R v Loukas, 2006 ONCJ 219 (CanLII), [2006] OJ No 2405 (Ont. C.J.), per M Green J
  2. ↑ Christie, supra
  3. ↑ R v Ho, 2010 ABPC 258 (CanLII), AJ No 1160, per Semenuk J, at para 7
    R v Balasuntharam, 1999 CanLII 1979 (ON CA), OJ No 4861, per curiam
    R v Drury and Hazard, 2000 MBCA 100 (CanLII), 47 WCB (2d) 512, per Huband JA

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] It is a matter that is determined on the facts of each case.[2]

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.[3]

In establishing possession, it is expected that there will be gaps in the evidence that can be filled by inferences.[4]

  1. ↑ R v Brar (G.), 2008 MBQB 133 (CanLII), 234 Man.R. (2d) 1, per MacInnes JA, at paras 37 to 38
  2. ↑ R v Smith, 1973 CanLII 1546 (BC CA), 10 CCC (2d) 384, per Taggart JA ("possession ... is a matter to be determined on the facts of each case.")
  3. ↑ Brar, ibid., at para 38
  4. ↑ R v Anderson-Wilson, 2010 ONSC 489 (CanLII), OJ No 377, per Hill J, 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), 200 CCC (3d) 338, per Smith JA
  2. ↑ R v Glushek, 1978 ALTASCAD 175 (CanLII), 41 CCC (2d) 380, per Sinclair JA - 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 be 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, per Cartwright J
    R v Martin, 1948 CanLII 101 (ON CA), 92 CCC 257, per Laidlaw JA, at p. 266 (Ont. C.A.)
  2. ↑ R v Chalk, 2007 ONCA 815 (CanLII), 227 CCC (3d) 141, per Doherty JA, at para 18
  3. ↑ R v Traimany, 2011 MBQB 15 (CanLII), 261 Man R (2d) 101, per Clearwater J, at para 34
  4. ↑ R v Sparling (1988), OJ No 107, [1988] OJ No 107 (Ont. H.C.)(*no CanLII links) , 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), 203 CCC (3d) 326, per Kozak J, at para 18
  6. ↑ R v Grey, 1996 CanLII 35 (ON CA), 47 CR (4th) 40, per Laskin JA
  7. ↑ R v Gordon, 2011 ONSC 5650 (CanLII), 97 WCB (2d) 182, per Backhouse J - acquittal - drugs found in vent of car
  8. ↑ Grey, supra, 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), per Belobaba J, at para 17
    R v Aiello, 1978 CanLII 62 (ON CA), 38 CCC (2d) 485, per Martin JA
  10. ↑ Aiello, ibid.
  11. ↑ 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 CanLII 2535 (NB CA), 41 CCC (2d) 282 (NBCA), per Hughes CJ -- woman held onto discovered drugs in car for 1 hour

Control

Control over an object refers to the accused's ability to exert "some power or authority" over that object.[1]

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.[2]

Proof of manual handling of the object does not necessarily 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.[3]

It is not necessary that the accused actually examine or look at the item to be in possession of it. [4]

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.[5]

Simply being one of several persons residing in a residence is not enough to establish control.[6] 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."[7] A "measure of control" does not require predominant control.[8] There must be the ability to "exercise a directing or restraining power" over the item.[9]

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."[10]

Control can be established by the fact that the accused had the ability to grant and withhold consent to contraband.[11] This will include power to grant or withhold access to a residence.[12]

  1. ↑ R v Colvin, 1942 CanLII 245 (BCCA), [1943] 1 DLR 20, per O'Halloran JA, at p. 25 (DLR) ("It follows that `knowledge and consent' cannot exist without the co-existence of some measure of control over the subject-matter. If there is the power to consent there is equally the power to refuse and vice versa. They each signify the existence of some power or authority which is here called control, without which the need for their exercise could not arise or be invoked")
  2. ↑ R v Marshall, 1968 CanLII 999 (AB CA), 3 CCC 149 (ABCA), per McDermid JA -- 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), 203 CCC (3d) 326, per Kozak J
  3. ↑ R v Terrence, 1983 CanLII 51 (SCC), [1983] 1 SCR 357, per Ritchie J
  4. ↑ R v Daniels, 2004 NLCA 73 (CanLII), 191 CCC (3d) 393, per Welsh JA, at para 12 (Nfld. C.A.)
  5. ↑ R v Bertucci, 2002 CanLII 41779 (ON CA), 169 CCC (3d) 453, per O'Connor ACJ, at para 20 - judge misdirected by stating they may find control if accused in control of vessel
  6. ↑ R v Masters, 2014 ONCA 556 (CanLII), 313 CCC (3d) 275, per curiam, at para 23
  7. ↑ R v Wu, 2010 BCCA 589 (CanLII), 92 WCB (2d) 9, per Frankel JA, at para 20 ("The law with respect to control in the context of constructive possession is well known. What the Crown must 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: ") - three adults lived in a house with a grow-op on the upper floor. No evidence of active involvement in grow-op.
    R v Webster, 2008 BCCA 458 (CanLII), 238 CCC (3d) 270, per Frankel JA, at #par42 paras 42 to 44
  8. ↑ R v Dipnarine, 2014 ABCA 328 (CanLII), 316 CCC (3d) 357, per curiam
    Terrence, supra
  9. ↑ Dipnarine, ibid., at para 18
  10. ↑ Wu, ibid.
  11. ↑ R v Savory, 1996 CanLII 2001 (ON CA), 94 OAC 318, per curiam
    R v Sahlen (2005), Carswell Alta. 2115 (ABQB)(*no CanLII links)
    R v Chambers, 1985 CanLII 169 (ON CA), 20 CCC (3d) 440, per Martin JA, at p. 446 - ostensible control of access to accused's room amounted to control over drugs found therein
  12. ↑ R v Fisher, 2005 BCCA 444 (CanLII), 200 CCC (3d) 338, per Smith JA (3:0), at para 41

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. ↑ R v Gallant v The Queen, 1960 CanLII 492 (NB CA), 128 CCC 129, per Ritchie JA, at p. 131 - presumption exists
    cf. R v Lincoln, 2012 ONCA 542 (CanLII), 106 WCB (2d) 58, per curiam - no presumption
    R v Watson, 2011 ONCA 437 (CanLII), 94 WCB (2d) 733, per Laskin JA, at paras 11 to 13
    R v Vauteur, 1969 CanLII 1012 (NB CA), 1 CCC 324, per Bridges CJ
  2. ↑ R v Sigouin, 1964 CanLII 716 (QC CA), [1966] 1 CCC 235, per Taschereau JA
    R v Sutherland et al., 2005 MBQB 230 (CanLII), 196 Man R (2d) 296, per Jewers J
  3. ↑ R v Williams, 1998 CanLII 2557 (ON CA), 125 CCC (3d) 552, per McMurtry CJ, at p. 558
  4. ↑ R v Mulligan-Brum, 2011 BCCA 410 (CanLII), 311 BCAC 204, per Levine JA, at para 13
  5. ↑ R v Grey, 1996 CanLII 35 (ON CA), [1996] OJ No 1106 (CA), per Laskin JA, at para 15
  6. ↑ In R v Lou Hay Hung, 1946 CanLII 118 (ON CA), 85 CCC 308, per Robertson CJ
  7. ↑ R v McRae, 1967 CanLII 440 (SK CA), 3 CCC 122 (Sask CA), per Wood J
  8. ↑ R v Anderson-Wilson, 2010 ONSC 489 (CanLII), OJ No 377, per Hill J

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), 34 CR (7th) 147, per MacPherson JA
  2. ↑ R v Grey, 1996 CanLII 35 (ON CA), , 28 OR (3d) 417, per Laskin JA ("I would not prescribe a firm rule for inferring knowledge from occupancy")
  3. ↑ R v Emes, 2001 CanLII 3973 (ON CA), 157 CCC (3d) 124, per curiam at 8
    R v Basarowich, 2010 MBQB 4 (CanLII), 249 Man R (2d) 64, per Greenberg J, at para 26
    cf. Biggs, supra
  4. ↑ R v Colvin and Gladue, 1942 CanLII 245 (BCCA), 78 CCC 282 (BCCA), per McDonald CJ 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), per Paciocco J, at para 23
  5. ↑ Biggs, supra
    Grey, supra
    R v Pham, 2005 CanLII 44671 (ON CA), , 77 OR (3d) 401, per Kozak J aff’d 2006 SCC 26 (CanLII), [2006] 1 SCR 940, per McLachlin CJ
    R v Turner, 2012 ONCA 570 (CanLII), 295 OAC 274, per Armstrong JA
    R v Savoury, [2008] OJ No 2896 (S.C.)(*no CanLII links)
    R v Allison, 2016 ONSC 2446(*no CanLII links)

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 vehicle knowing there is a weapon inside does not require proof of control.[3]

  1. ↑ R v Anderson-Wilson, 2010 ONSC 489 (CanLII), OJ No 377, per Hill J
  2. ↑ Anderson-Wilson, ibid.
  3. ↑ Anderson-Wilson, ibid., 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.

The sheer value of illegal items such as drugs and guns can be sufficient to find that it is implausible to believe a third party left it behind.[1]

A history of unexplained spending without a proportionate source of income can lead to an inference of possession of drugs found on the premises.[2]

  1. ↑ R v Richardson, 2023 BCCA 29 (CanLII), per Horsman JA, at paras 19 and 42
    R v Lola, 2020 SKCA 103 (CanLII), per Ottenbreit JA, at para 13
  2. ↑ R v Ramos, 2015 SKQB 57 (CanLII), 469 Sask R 112, per Acton J

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 passenger's 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), 106 WCB (2d) 58, per curiam, at paras 2 to 3
  2. ↑ R v TAK, 2005 BCCA 293 (CanLII), 213 BCAC 48, per Low JA
  3. ↑ R v MacLeod (J.M.) et al, 2013 MBCA 48 (CanLII), 298 CCC (3d) 327, per Cameron JA citing R v Haggarty, 1946 CanLII 367 (BCCA), [1947] 3 DLR 335, per Sloan CJ ("...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

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