Chapter One: Constitutional Sources of the Criminal Law and the Criminal Code

Chapter Nineteen: Possession

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  Criminal Code 4(3): For the purposes of this Act,
  

(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.

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  IA 34(2): All the provisions of the Code relating to indictable offences created by an enactment, and all the provisions of that Code relating to summary conviction offences apply to all other offences created by an enactment, except to the extent that the enactment otherwise provides.
  
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  CDSA 4(1): Except as authorized under the regulations, no person shall possess a substance included in Schedule I, II or III.
  
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    Schedule I: opiates, cocaine, meth, etc.
    
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    Schedule II: marijuana
    
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    Schedule III: LSD, psilocybin, mescaline,
    
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    Schedule IV: steroids
    
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    + other federal penal statutes.
    
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  Elements of Possession:
  
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    AR: in personal possession, in place, or in possession of a third party (with knowledge and consent)
    
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      “Possession” is defined under s. 4(3) of the Code however the word possession is used and it is therefore not a real definition. A factor judges have read into the definition of possession is that the accused must have had at the material time, a measure of “control” over the thing.
      
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    MR: Knowledge: that it exists / that A has it / what it is
    
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      Re: knowledge: actual knowledge or willful blindness – NOT recklessness
      
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      If no knowledge = no mens rea.
      
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      If mistake (even if unreasonable) = no mens rea.
      
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      Defense of honest mistake – tactical burden only – requires an “air of reality” -if air of reality it can be put to the jury to decide if it raises a reasonable doubt as to the mens rea.
      
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      Consent: requires control
      
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  Beaver v The Queen, 1957 SCC: Accused charged with unlawfully selling diacetylmorphine to an undercover police officer; said he thought it was “sugar of milk;” trial judge erred by interpreting the offence as an absolute liability offence and failed to consider whether the accused had the requisite knowledge for the offence; accused raised a reasonable doubt as to whether he had the sufficient required mens rea; conviction quashed; new trial ordered.
  
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  The Mens Rea requirement for possession: There are two elements to the mens rea for possession.
  
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    1. The accused must have known that they had the substance in their possession.
    
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    2. The accused must have known what that substance in their possession was.
    
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  There are three main types of mens rea defenses:
  
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    1. No intention in fact.
    
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    2. No intention because of an unusual condition (mental disorder, automatism, or intoxication).
    
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    3. Different intention. (NB: may not be a totally “innocent” intention – ex mistake of fact).
    
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      The accused need only raise a reasonable doubt as to whether he or she honestly believed in the innocent state of affairs; the accused need not show that his or her belief was reasonable (statute however may require that the mistake be reasonable).
      
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  R v Chualna, 2003 BCCA: police found guns in an open duffle bag in a stolen car to which Chualna was a passenger. The elements of possession as defined in s. 4(3)(b) of the Code are knowledge and consent. The judge inferred that the two men were “partners in crime” and reasoned from that inference that they had joint possession of the stolen van and prohibited weapons. However, it is the Crown’s obligation to prove knowledge and consent. The appellant and McLellan could not have been “partners in crime” to the extent necessary to fix the appellant with requisite knowledge, unless that knowledge was the only reasonable inference available on the evidence. However suspicious one may be of the appellant’s awareness, in my view the evidence does not establish beyond a reasonable doubt knowledge on the appellant’s part that McLellan was in possession of a stolen vehicle or that the appellant knew what it contained. Therefore, it is not necessary to consider consent, however, consent requires more than indifference or passive acquiescence. Furthermore, it is settled law that knowledge and consent cannot exist without the co-existence of some measure of control over the subject matter. There is no evidence that the appellant exercised control over the stolen vehicle or the prohibited weapons. The appeals against all five counts must be allowed.
  
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  R v Williams, 1998 OCA: appeal by the accused from his conviction for importing a narcotic. Williams was the passenger in a car driven by a Snieg and owned by Snieg’s gf. The car was stopped at the boarder of Niagara Falls and searched. The officers found seven bags of cocaine hidden in the speaker wells of the car. The question of whether or not the appellant had sufficient possession of the cocaine and whether the trial judge adequately instructed the jury are in issue on appeal.
  
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    Possession requires both knowledge and control and the Crown must prove both beyond a reasonable doubt.
    
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    It is possible to be in the car and not see or know the drugs were there.
    
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    R v Savory: The appellant submitted that control means that the appellant did in fact exercise control over the drugs… Neither mere passive acquiescence to his passenger’s possession of drugs, nor merely consorting with the passenger nor having control of the car was sufficient to constitute control.
    
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    R v Aiello: it was not necessary for the prosecution to prove the required knowledge by direct evidence, but that it could be inferred from surrounding circumstances.
    
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    R v Cooper: the jury must be satisfied beyond a reasonable doubt that the guilt of the accused is the only reasonable inference to be drawn from the circumstantial evidence.
    
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    The circumstances of this case required the trial judge to give a more careful instruction to the jury regarding the role of the appellant. Conviction quashed and new trial ordered.
    
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  R v Chambers, 1985 OCA: the respondent was charged with unlawfully having in their possession cocaine for the purposes of trafficking after 104 grams of 95% pure cocaine was found in the respondent’s closet. Mr. Justice Gray quashed the respondent’s committal for trial after determining that there was no evidence that the applicant was in possession of the cocaine and that there was no evidence that she aided and abetted the possession of the cocaine by her co-accused. Mr. Justice Gray held that the occupancy of the room by the respondent was not per se evidence of possession and that the necessary measure of control was lacking.
  
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    It is well established that on a motion to quash a committal for trial the reviewing court is not empowered to determine whether in its opinion there is any evidence upon which a properly instructed jury could convict, but is confined to considering whether there is any evidence before the committing justice upon which acting judicially he could form an opinion that the evidence is sufficient to put the accused on trial. This is the correct test, however, the OCA reached a different conclusion.
    
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    The respondent’s right to grant or withhold consent to the drugs being store in her room gave her the necessary measure of control over the drug essential to constitute consent within s. 3(4)(b) of the Code.
    
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    CC s. 3(4)(b): “Where one of two or more person, with the knowledge and consent of the rest has anything, in his custody or possession, it shall be deemed to be in the custody or possession of each and all of them.
    
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      Consent requires a measure of control over the subject matter.
      
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    The OCA found that there was some evidence upon which a reasonable jury properly instructed could find that the respondent could have had possession of the drug under s. 3(4)(b) of the Code or was a party to the offence under s. 21 of the Code.
    
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    I would allow the appeal, set aside the order of Gray, J. quashing the respondent’s committal for trial and restore the committal for trial.
    
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  R v Venneri, 2012 SCC: At trial, Venneri was convicted of eight counts including possession of cocaine for the purpose of trafficking. The Court of Appeal quashed this conviction holding that the evidence failed to demonstrate that Venneri jointly possessed the cocaine seized at the homes of two unindicted co-conspirators. While Venneri regularly purchased and sold to the home where the cocaine was found, the Crown failed to prove that the drugs seized bore any relation to the conspiracy to which he was a part.
  
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    Crown contended his conviction could be upheld under s. 21(2) of the Code: “Where two or more persons form an intention in common to carry out an unlawful purpose and to assist each other therein and any one of them, in carrying out the common purpose, commits an offence, each of them who knew or ought to have known that the commission of the offence would be a probable consequence of carrying out the common purpose is a party to that offence.”
    
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    Crown is not relieved of proving the elements of possession simply by establishing the existence of a conspiracy to traffic in cocaine.
    
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    Conviction quashed: verdict was unreasonable. There was a lack of reasons to support the finding that Venneri had constructive or joint possession of the cocaine.
    
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  R v Chaulk, 2007 OCA: The appellant was convicted by a judge without a jury on a charge of possession child pornography. The trial turned on whether the Crown had proved that the appellant had a sufficient measure of control over the videos to put him in possession of those videos within the meaning of possession under s 4(3) of the Code. When the appellant’s gf told him that the Children’s Aid society he asked her to delete his files. On looking at the files she found child pornography which she showed to the police. The accused provided a statement where he admitted he knew that they were there for several months but did not delete them. He denied downloading them or watching them. The videos were accessed 5 times, however, there is no way of knowing which of the four family members accessed them.
  
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    Possession requires knowledge of the criminal character of the item in issue. The appellant’s knowledge of the videos was established by his own testimony.
    
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    Possession also requires control. Control refers to power or authority over the item whether it was exercised or not. Possession was established by the fact that the regularly used the computer and did not delete the videos. The control existed for several months and was not merely incidental to an innocent purpose.
    
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    The defense pleaded “innocent possession” which refers to a line of authority that supports the proposition that exercising control over contraband with the requisite knowledge, but solely with the intent of destroying or permanently removing it from one’s control does not constitute criminal possession.
    
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      Based on the trial judges findings this was not an innocent and transient possession.