Canadian Criminal Evidence/Recent Possession

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Generally[edit | edit source]

The doctrine of recent possession permits the court to make the inference that the possessor of the property had knowledge that the property was obtained in the commission of the offence, and in certain circumstances was also a party to the initial offence.[1]

When considering whether to make the inference of recent possession, the trier-of-fact must take into account all the circumstances.[2] This includes common sense factors such as the amount of time that passed between possession and the offence.[3]

Recency is a matter of circumstances such as type and size of the items.[4] In certain cases recency can include periods longer than a month.[5]

To permit the inference, the Crown must establish 1) that the accused was found in possession of the item and 2) that the item was recently stolen. Where it can be said that the accused was found in recent possession without explanation to trier of fact may, but not necessarily, draw the inference regarding the accused's role in the theft or related offences.[6]

Factors to consider whether the possession was "recent" includes:[7]

  1. the nature of the object;
  2. the rareness of the object;
  3. the readiness with which the object can, and is likely to, pass to another; and
  4. the ease of identification.

Where the doctrine has been invoked, the Defence can counter the presumption by way of a reasonable explanation.[8]

It is not necessary to go beyond the test for recent possession to determine the accused's degree of participation. That is, whether the accused was a principle or accomplice.[9]

  1. see R. v. Terrence, [1983] 1 S.C.R. 357 [1] and R. v. Kowlyk, [1988] 2 S.C.R. 59[2]
  2. R v Abernathy 2002 BCCA 8
  3. R v Gagnon, 2006 MBCA X at 13
  4. R. v. Killam, [1973] 5 W.W.R. 3 at para. 45
  5. e.g. R. v. Rimmer, 2011 BCCA 411
  6. R. v. Gagnon, 2006 MBCA 125 (CanLII)
  7. Gagnon
  8. R. v. Graham, [1974] SCR 206, 1972 CanLII 72
    R. v. Nickerson (1977) 37 CCC (2d) 337 (NSCA);
    R. v. Newton, [1977] 1 S.C.R. 312 1976 CanLII 57
    R. v. L'Heureux, [1985] 2 S.C.R. 159, 1985 CanLII 49
    R. v. Kowlyk, [1988] 2 S.C.R. 59, 1988 CanLII 50
  9. R. v. Thatcher 1987 CanLII 53 (SCC), (1987), 57 C.R. (3d), 97

Cases[edit | edit source]