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RECENT POSSESSION OF STOLEN GOODS

R. v. Kowlyk, [1988] 2 S.C.R. 59


                 Per Dickson C.J. and McIntyre, Le Dain and La Forest JJ.: The doctrine of recent possession may be succinctly stated.


Upon proof of the unexplained possession of recently stolen property,

the trier of fact may--but not must--draw an inference of guilt of theft or of offences incidental thereto.


This inference can be drawn even if there is no other evidence connecting the accused to the more serious offence.


Where the circumstances are such that a question could arise as to whether the accused was a thief or merely a possessor, it will be for the trier of fact upon a consideration of all the circumstances to decide which, if either, inference should be drawn.


The doctrine will not apply when an explanation is offered which might reasonably be true even if the trier of fact is not satisfied of its truth.




Queen v. Lapointe and Hickey 2004 QBNB reviews and breaks the case down:


The Respondents were charged under Section 355(b)(ii) of the Criminal Code,

which is the penalty section for Section 354 (“Possession of Property obtained by a

Crime”). In Martin’s Criminal Code [2004], there is an annotation to Section 354 in

which the authors review the elements of the “doctrine” of recent possession as found in

R. v. Kowlyk [1988] 2 S.C.R. 43. They are listed as follows:

1. No adverse inference may be drawn against an accused

from the fact of possession alone unless it were recent:

R. v. Graham, [1974] S.C.R. 59, 7 C.C.C. (2d) 93 (7:0);

2. If a pre-trial explanation of such possession were given

by the accused, and if it possessed that degree of

contemporaneity with the possession making evidence

of it admissible, no adverse inference could be drawn

on the basis of recent possession alone if the

explanation were one which could reasonably be true:

R. v. Graham, supra;

3. In the absence of such explanation, recent possession

alone is quite sufficient to raise a factual inference of

theft;

4. Where the accused does not testify, a jury instruction as

to the inference arising from unexplained possession

does not constitute a “comment” within the meaning of

s. 4(6): R. v. Newton, [1977] 1 S.C.R. 399, 28 C.C.C.

(2d) 286, 34 C.R.N.S. 161 (9:0);

5. Where an explanation which could reasonably be true is

given for the possession, then no inference of guilt on

the basis of recent possession alone may be drawn, even

if the trier of fact is not satisfied as to the truth of the

explanation and thus, to obtain a conviction in the face

of such an explanation, it must establish by other

evidence the guilt of the accused beyond a reasonable

doubt;

6. The unexplained possession of stolen goods, standing

alone, will also warrant an inference of guilt of

breaking and entering and theft of those goods;

7. Upon proof of the unexplained possession of recently

stolen goods, the trier of fact may – but not must – draw

an inference of guilt of theft or of offences incidental

thereto;

8. Where the circumstances are such that a question could

arise as to whether the accused was a thief or merely a

possessor, it will be for the trier of fact, upon a

consideration of all the circumstances, to decide which,

if either, inference should be drawn.

By accepting the Crown’s argument, the Court would be saying that the

Respondents are not entitled to give an explanation for the possession of that one log.

And yet, as can be gleaned from the annotation, the Court is not allowed to draw an adverse inference from the fact of possession alone, unless it were recent.

The learned trial judge canvassed that point, and concluded that the explanations given by the Respondents for the possession of the log “could reasonably be true given

all the circumstances and I’m prepared to give them the benefit of the reasonable doubt to which they are entitled”.

Jim O'Neil, LL.B.

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