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Evidence of Possession is Required: More Than Just Circumstantial Evidence of a Connection to Stolen Property
Question: Must the Crown prove that a person had possession and control of stolen property beyond mere contact to secure a theft conviction?
Answer: Yes, the Crown is required to establish that the accused had actual possession and control of the stolen property rather than just evidence of contact or connection. Freed Legal Services LLP can help you understand these legal nuances and provide representation if you face theft charges.
Must the Crown Prove Possession and Control Beyond Mere Contact With Stolen Property to Secure a Theft Conviction?
In a Theft Case the Crown Is Required to Present Evidence That the Accused Had Knowing Possession and Control of the Stolen Property Rather Than Mere Contact or Connection With the Stolen Property.
Understanding the Evidentiary Requirement That the Crown Must Prove Actual Possession of Property Within a Theft Case
When a person is accused of, and charged with, theft of property as per section 322 of the Criminal Code of Canada, R.S.C. 1985, c. C-46, there is a requirement that the Crown prove that the person charged was in unlawful possession of the stolen property rather than proving merely circumstantial contact with, or connection to, the stolen property. Furthermore, the word "possession" has a special meaning in law and it is the special legal meaning of "possession" rather than just what may be the ordinary person meaning of "possession" that must be proven.
The Law
The Criminal Code, per section 322(1), describes the basis for which a person commits the crime of theft. Specifically, section 322(1) of the Criminal Code states:
322 (1) Every one commits theft who fraudulently and without colour of right takes, or fraudulently and without colour of right converts to his use or to the use of another person, anything, whether animate or inanimate, with intent
(a) to deprive, temporarily or absolutely, the owner of it, or a person who has a special property or interest in it, of the thing or of his property or interest in it;
(b) to pledge it or deposit it as security;
(c) to part with it under a condition with respect to its return that the person who parts with it may be unable to perform; or
(d) to deal with it in such a manner that it cannot be restored in the condition in which it was at the time it was taken or converted.
Accordingly, when a person is charged with theft, per section 322 of the Criminal Code, the prosecuting Crown must prove, beyond a reasonable doubt, the elements as described. Among the elements is the word "takes" which involves a measure of possession and control over the property involved in the theft. What constitutes as "possession" is defined at section 4(3) of the Criminal Code which states:
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.
In a theft case, where the Crown may be without a witness to the actual theft taking place, proof of the theft may involve the collective of circumstantial evidence that provides enough proof of involvement as necessary to enable common sense inferences to prevail and thereby rise to the level of proof beyond a reasonable doubt. However, mere circumstantial evidence of contact with, and even a mere connection to, the property that is the subject of the theft is insufficient to prove actual involvement, or even complicit involvement, in the theft. Accordingly, the Crown prosecutor must do more than just prove mere contact with, or mere connection to, the subject property. The Crown prosecutor is required to prove that the accused person is the person who, wrongfully, took possession and control of the subject property. This evidentiary requirement was stated in the case of R. v. Phillips, 2020 ONCA 323, where it was said:
[10] There is nothing to connect the appellant to the break-in or the thefts, except for his alleged possession of the stolen vehicle shortly after the break-in and thefts occurred. The reasonableness of the three convictions turns on whether the circumstantial evidence was reasonably capable of supporting the inference the appellant was not only in the Anthony vehicle when it travelled to Kingston, but was also in possession of that vehicle. Possession requires proof of some element of control over the thing said to be possessed: R. v. Pham (2005), 2005 CanLII 44671 (ON CA), 203 C.C.C. (3d) 326, at para. 16 (Ont. C.A.), aff’d, 2006 SCC 26 (CanLII), [2006] 1 S.C.R. 940; R. v. Terrence, 1983 CanLII 51 (SCC), [1983] 1 S.C.R. 357. Absent a finding the appellant was in possession of the truck, the further inferences he was the person who broke into the Anthony home and stole the purse and keys was not reasonably available.
Per Phillips as shown above, proof beyond mere evidence that Phillips was within the stolen vehicle was necessary to proving that Phillips was involved in taking unlawful possession and control of the stolen vehicle. The case of R. v. Pham, 2005 CanLII 44671, as was cited in Phillips, very clearly expressed the necessity of evidence to prove possession and control beyond merely having contact with, or merely having a connection to, the stolen property. Specifically, in the Pham case it was stated:
[15] In order to constitute constructive possession, which is sometimes referred to as attributed possession, there must be knowledge which extends beyond mere quiescent knowledge and discloses some measure of control over the item to be possessed. See R. v. Caldwell (1972), 1972 ALTASCAD 33 (CanLII), 7 C.C.C. (2d) 285, [1972] 5 W.W.R. 150 (Alta. S.C. (A.D.)); R. v. Grey (1996), 1996 CanLII 35 (ON CA), 28 O.R. (3d) 417, [1996] O.J. No. 1106 (C.A.).
[16] In order to constitute joint possession pursuant to s. 4(3)(b) of the Code there must be knowledge, consent, and a measure of control on the part of the person deemed to be in possession. See R. v. Terrence, 1983 CanLII 51 (SCC), [1983] 1 S.C.R. 357, 147 D.L.R. (3d) 724; R. v. Williams (1998), 1998 CanLII 2557 (ON CA), 40 O.R. (3d) 301, [1998] O.J. No. 2246 (C.A.); R. v. Barreau, 1991 CanLII 241 (BC CA), [1991] B.C.J. No. 3878, 19 W.A.C. 290 (C.A.); and R. v. Chambers, 1985 CanLII 169 (ON CA), [1985] O.J. No. 143, 20 C.C.C. (3d) 440 (C.A.).
Conclusion
In a theft case, where it is proven that the accused had contact or connection with the stolen property, it is insufficient to prove merely the contact or connection; and accordingly, it is necessary for the Crown to prove that the person accused of the theft actually took unlawful possession and control of the stolen property or was in some other way complicit with the theft such as knowingly assisting another person who took unlawful possession and control of the stolen property.