Recent Possession

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General Principles

The doctrine of recent possession permits the court to make the inference that the possessor of the property had knowledge that the property was obtained in the commission of the offence, and in certain circumstances was also a party to the initial offence.[1]

Test for Recent Possession
To permit the inference, the Crown must establish 1) that the accused was found in possession of the item and 2) that the item was recently stolen. Where it can be said that the accused was found in recent possession without explanation to trier of fact may, but not necessarily, draw the inference regarding the accused's role in the theft or related offences.[2] When these elements exist, a prima facie case has been made out, which, absent any explanation, may permit the trier-of-fact to make a finding of guilt.[3]

It is not necessary to go beyond the test for recent possession and determine the accused's degree of participation. That is, whether the accused was a principle or accomplice.[4]

A jury must be instructed on the ability to make a finding of guilt on a prima facie case.[5]

Circumstantial Factors
When considering whether to make the inference of recent possession, the trier-of-fact must take into account all the circumstances.[6] This includes common sense factors such as the amount of time that passed between possession and the offence.[7]

Factors to consider whether the possession was "recent" includes:[8]

  1. the nature of the object;
  2. the rareness of the object;
  3. the readiness with which the object can, and is likely to, pass to another; and
  4. the ease of identification.

Timeliness of Possession
Recency is a matter of circumstances such as type and size of the items.[9] In certain cases recency can include periods longer than a month.[10]

  1. see R v Terrence, [1983] 1 SCR 357, 1983 CanLII 51 (SCC)
    R v Kowlyk, [1988] 2 SCR 59, 1988 CanLII 50 (SCC)
  2. R v Gagnon, 2006 MBCA 125 (CanLII)
  3. R v Newton, 1976 CanLII 157 (SCC), [1977] 1 SCR 399, at page 405 ("...where it has been established that the accused was in possession of recently stolen goods and where no explanation whatever has been advanced,... raises a prima facie case upon which [the trier is] entitled to bring in a verdict of guilty.")
  4. R v Thatcher 1987 CanLII 53 (SCC), (1987), 57 C.R. (3d), 97
  5. see Newton, supra at p. 405
  6. R v Abernathy, 2002 BCCA 8 (CanLII)
  7. Gagnon, supra at para 13
  8. Gagnon, supra
  9. R v Killam, [1973] 5 W.W.R. 3, 1973 CanLII 1347 (BC CA) at para 45
  10. e.g. R v Rimmer, 2011 BCCA 411 (CanLII)

Rebutting the Presumption

See also: Burden of Proof#"Might Reasonably Be True" Test

Where the doctrine has been invoked, the Defence can counter the presumption by way of a reasonable explanation.[1]

The presumption may be rebutted by an explanation (either in testimony or prior statement) that "might reasonably be true".[2]

The explanation can be an unsworn statement prior to trial where it is either successfully tendered by the Crown or admitted under res gestae.[3]

  1. R v Graham, [1974] SCR 206, 1972 CanLII 72, per Ritchie J
    R v Nickerson (1977) 37 CCC (2d) 337 (NSCA), 1977 CanLII 1914 (NS CA)
    R v Newton, [1977] 1 SCR 312 1976 CanLII 57, per Ritchie J
    R v L'Heureux, [1985] 2 SCR 159, 1985 CanLII 49, per Lamer J
    R v Kowlyk, [1988] 2 SCR 59, 1988 CanLII 50 (SCC), per McIntyre J
  2. R v McKenzie, 1972 CanLII 173 (SCC), [1974] SCR 233, per Ritchie J at p. 234 (SCR)
    Kowlyk, supra at para 12
  3. R v Graham, 1972 CanLII 172 (SCC), [1974] SCR 206, per Ritchie J

Case Digests