Canadian Criminal Law/Possession

Introduction
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 under s. 2 the Controlled Drugs and Substances Act adopts the same definition as the Criminal Code:

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

Likewise, the statutory requirements of s.4(3), require that the totality of evidence establish beyond a reasonable doubt that the accused had knowledge and control.

Actual/Personal Possession
“Personal possession” 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.

Constructive Possession
Constructive possession requires the following:
 * 1) knowledge of the item
 * 2) intent/consent to have possession of the item
 * 3) control over the item

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

Possession can still be established even if it considered the property of some third party.

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.

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. 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

Innocent Possession
There is some 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.

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.

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.

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.

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
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.

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

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 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."

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.

"[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. (R v Mulligan-Brum, 2011 BCCA 410 at para 13)

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.

Items Found in a Residence
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.

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 passengers ability to see the damage to the ignition from starting without a key