Possession

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

• < Criminal Law
• < Proof of Elements

General Principles

There are three types of possession:

• personal / actual possession
• constructive possession
• joint possession

Possession can be proven through both direct or circumstantial evidence.

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)

---

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.

Knowledge and Control

At common law, possession requires control as well as knowledge.

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.

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)

---

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)” Thus, actual/Personal possession requires that:

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

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.

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.

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

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."

Requirements

Constructive possession requires the following:

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

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

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

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

Wilful blindness

The knowledge requirement can be established by wilful blindness.

Third Parties

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

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

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

Items in Home

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

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

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.

Appellate Review

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

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. 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.

Consent must be more than "indifference or passive acquiescence."

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.

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

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.

Each element must be proven beyond a reasonable doubt.

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. Stated differently, there must be an intent to control the item in question.

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."

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

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.

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

Manual Handling of Object

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

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."

Knowledge

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

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

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

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.

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

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

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

Sparling

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.

Control

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

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.

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.

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

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.

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

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."

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

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.

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

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

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

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.

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.

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.

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.

Items Found in a Residence

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

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”.

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.

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

Possession of Firearms

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

• 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.

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.

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.

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

Other

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

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

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.

Case Digests

• Possession (Cases)

See Also

• Recent Possession - extends liability where possession is recent in time to an index offence
• Continuity
• Proof of Ownership
• Possession and Access of Child Pornography