By Toronto Criminal Defence Lawyer
Criminal possession is one of the most common set of charges in the Canadian justice system. Yet many Canadians do not know the legal definition of possession. This article will attempt to explain the definition of possession and the definition of its component parts in order to allow you to better understand possible defences to a charge of possession.
Criminal possession is defined in Black’s Law Dictionary as, “the unlawful possession of certain prohibited articles, such as illegal drugs or drug paraphernalia, firearms, or stolen property.” To use the word possession in the definition, however, is obviously not incredible helpful. Possession is often discussed in courts in the following simple formula: Possession = Knowledge + Control.
What is Control?
Control is defined in Black’s as, the “exercise of power or influence over.” But again, this definition is not very helpful. In order to better understand control, reference to a famous Canadian case is necessary.
Perhaps the best known case relating to control as it relates to possession is the case of R. v. Terrence, [1983] 1 S.C.R. 357.
The facts in Terrence were as follows. Mr. Terrence was 17 years old at the time of the alleged offence. His friend arrived and asked if anyone wanted to go for a ride in his brother-in-law’s new Camaro. Mr. Terrence did. The Camaro was stolen, however. The trial judge did not believe Mr. Terrence, when he said that he did not know that the car was stolen and convicted him of possession of stolen property. But the judge also found that Mr. Terrence did not have control of the car.
On appeal, the Ontario Court of Appeal allowed Mr. Terrance’s appeal and overturned the conviction because control was not established beyond a reasonable doubt. In Terrence the Court of Appeal also made reference to R. v. Lou Hay Hung (1946), 85 C.C.C. 308, which says that in the case of drugs, the accused must not only know that drugs are on the premises, but the Crown prosecutor must prove that the accused consented, beyond a reasonable doubt, in order to be found guilty.
In Terrence, the Supreme Court of Canada agreed with the Court of Appeal and dismissed the Crown appeal. In sum, in Canada, the prosecution will have to prove beyond a reasonable doubt that an accused had some measure of control over the illegal object, to get a conviction for possession.
It should be noted, that a person can have possession by actually possessing something or having it in a place for the use and benefit of himself or of another. In other words, it is not a defence to possession to stash something in a place that is not immediately accessible.
What is Knowledge?
Similarly, to be found guilty of possession, you have to have knowledge that the thing is in your control. Knowledge is dined in Black’s as, “an awareness of a fact or circumstance.”
Again, a famous case will help understand knowledge. R. v. Beaver, [1957] S.C.J. No. 32, stands for the principle that knowledge and control are essential to possession. Mr. Beaver indirectly had sold a package, which was later determined to be drugs to an undercover officer. Mr. Beaver did not know that the package contained drugs at the time, but believed it to contain sugar. In that case, the Supreme Court of Canada, after reviewing the case law up to that point in time found that knowledge is essential to possession.
It is not a defence to possession if you think you are selling drugs but are mistaken. Likewise, it is no longer a defence that you know you are selling something other than something prohibited but know that the purchaser believes it to be drugs. But in order to possess something, you still have to know it is there.
Conclusion
To conclude, both knowledge and control are essential to possession. It is not enough that the crown can prove one or the other beyond a reasonable doubt. It is not enough to have something in your control that you don’t know is there. It is not enough that you know something is there if you don’t have control over it. If you are facing a charge of possession, it is advisable to contact a criminal lawyer who can help you explain your rights. Because even if possession can be proven beyond a reasonable doubt, there may be other defences available not covered in this article.
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