You have heard the expression, "possession is 9/10ths of the law"? Though there is an element of truth to this, proving possession is not always that easy.
Calgary criminal lawyers who handle drug cases are very familiar with the law of “possession”. The concept of possession is also directly relevant to other Criminal Code offences, such as “possession of stolen property”, “possession of break and enter tools”, “possession of identity documents” and “possession of the proceeds of crime” (just to name a few). Though it may be easy on an initial review of disclosure to think that the evidence proves possession, it is very important to critically evaluate all of the evidence to ensure the sufficiency of the evidentiary connections and to rule out reasonable doubt.
Even if a person is in possession of a thing, there may be other elements to the offence that cannot be proven. For example, in "possession of stolen property" cases, the Crown must prove that the property was actually "stolen". In "possession for the purpose of trafficking" the Crown must prove that the substance possessed is a scheduled substance pursuant to the Controlled Drugs and Substances Act. "Possession of proceeds of crime" requires that the proceeds be proven criminal.
the cheese grater heist
Who steels a cheese grater? For the purpose of demonstrating some problems with proving possession, the question “who steals a cheese grater” is a good one.
In this video the alleged victim of a theft is holding up various items asking: “who steals” these things? From this video alone, it’s impossible to attribute “possession” of any of this alleged stolen property. To be clear, the full news report provides a more comprehensive answer to the question:"who done it?". As the witness stated, 'I opened the door and he looked like he was packing up for a yard sale". The witness added, that the man threw up his hands and said "like rogues do": 'I didn't do it, I didn't it" and was "blaming everybody else".
Interestingly, though the alleged rogue's spontaneous utterance could be complete fabrication, it could also be a defence. It could even be an actual and true defence. Remember, the man is presumed innocent until he is proven guilty. Notwithstanding that he seems "guilty" at first blush, he may not be.
law of possession
Possession can be actual or constructive. Section 4(3) of the Criminal Code of Canada reads:
For the purposes of this Act,(a) a person has anything in possession when he has it in his personal possession or knowingly(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:
(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;
The old case, R. v. Terrence,  1 S.C.R. 357, remains essential jurisprudence with respect to the law of possession. In Terrence the Supreme Court held that proof of possession requires the Crown to prove “knowledge”, “consent” and “control” beyond a reasonable doubt. These three elements apply whether possession is actual or joint. As the SCC adopted from an earlier case:
Knowledge and consent" which is an integral element of joint possession in s. 5(2) must be related to and read with the definition of "possession" in the previous s. 5(1)(b). 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.
Accordingly, actual possession means that the subject matter of the charge is in the accused’s actual control. For example, if a person is holding an items (as with the cheese grater), the case may prove “actual” possession. Though there may be subtle ways to defend this type of situation, if the thing is controlled by the person there exists a strong inference that the accused “knew” what he was controlling and consented to having it in his possession.
This appears to be the situation in "The Cheese Grater Heist". Though this example appears to make for a strong case against the accused, in the right circumstances, it is not impossible to defend. For instance, imagine that the accused was simply asked to hold the object, but didn’t know it was stolen property or that he was actually stealing property.
“Constructive possession” is different than actual possession. Constructive possession usually occurs in circumstances where persons share a place, such as a dwelling house, and thus are deemed to collectively have possession over the things in the place. For example, if the police execute a search warrant and find drugs in plain-view in a common area, the drugs are deemed to be in possession by all persons having control over the place. Again, however, a normal occupant of the place may not be know about the contraband, and if she does, she may not have control over the illegal items.
raising a reasonable doubt
Again, there are many ways to defend this type of situation. Perhaps one of the occupants wasn’t home at the time of the search? Perhaps an occupant knew about the drugs, but there was evidence that he or she had no control over the contraband? There are many examples where trial judges have been very suspicious about the guilt of the accused, but have been unable to conclude a beyond a reasonable doubt that the accused was in possession of the item(s) alleged. By way of example, see R. v. B.A.
The point is, when assessing whether the Crown has proven “possession” beyond a reasonable doubt requires careful analysis. Every case must be evaluated on its own facts.
Remember, proof beyond a reasonable doubt means that an accused is “likely guilty” should still be acquitted. In R. v. B.A. there was evidence that the accused had exercised strong control over the place where a firearm and drugs was located. However, the evidence did not prove exclusive control and as such, the lack of exclusive control was a significant factor weighing in favour of the accused, who was acquitted at trial.
charged with a possession offence?
If you have been charged with any possession related offence, carefully evaluate your Calgary criminal defence lawyers of choice so that you make the right decision. David Chow is a proven Calgary defence lawyer who was trained to defend narcotics cases by one of Calgary’s finest drug lawyers. Call for a free telephone consultation. To best serve his clients and to protect solicitor-client privilege, David Chow’s office is open by appointment ONLY.