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Evidence of Possession is Required: More Than Just Circumstantial Evidence of a Connection to Stolen Property
Question: Does the Crown have to prove I possessed and controlled stolen property, not just that I was near it or had contact with it?
Answer: In Ontario theft cases, the Crown generally must prove knowing possession with a measure of control, not merely proximity, contact, or association with the property, and that distinction can be decisive when challenging the prosecution’s inferences. Hall Paralegal Services is a Paralegal service in Ontario that can review the disclosure and help you assess whether the evidence actually shows possession and control as required under Criminal Code, R.S.C. 1985, c. C-46, including s. 322 and s. 4(3).
Is the Crown Required to Prove Possession of Stolen Property As Opposed to Merely Proving Contact With Stolen Property In a Theft Case?
To Prove a Theft Case the Crown Must Present Evidence of Knowing Possession and Control of the Stolen Property Rather Than Just 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
Within the Criminal Code, at section 322(1), the foundational elements for what constitutes as the crime of theft are provided and whereas it is specifically stated:
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.
As such, to prove a charge of theft in accordance with the legal definition per section 322 of the Criminal Code, the prosecuting Crown must prove the elements as legally defined. As shown, the elements include the word "takes" thereby involving a certain aspect of possession and control over the property that is allegedly the subject of the theft. Furthermore, what constitutes as "possession" is defined at section 4(3) of the Criminal Code whereat such 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 cases alleging theft, the Crown prosecutor may be without an eyewitness to the actual theft and thus proof of the theft may require collective circumstantial evidence that involves enough as necessary to avail to common sense and thereby inferences rising 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 required level of evidence was expressed within R. v. Phillips, 2020 ONCA 323, whereas it was stated:
[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
When an accused person is facing a theft charge, it is insufficient for the Crown prosecutor to merely prove that the accused person had contact or a connection to the subject property; and accordingly, the Crown must prove that the accused person is who actually took unlawful possession and control of the subject or that the accused person was complicitly involved with the theft by knowingly assisting with the taking of unlawful possession and control of the subject property by another person.
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