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POSSESSION - KNOWLEDGE


R. v. Williams, 1998 CanLII 2557 (ON CA), affirmed by SCC

...


[13]           This court had occasion to deal with this issue in R. v. Piaskowski reflex, (1979), 52 C.C.C. (2d) 316. In that case, the appellant was convicted of possessing items knowing those items were obtained by the commission of an offence. The appellant was seated in the front passenger side of a vehicle accompanied by the driver and another passenger in the back seat. The police pursued the vehicle and signalled it to stop. The vehicle slowed down and some objects were thrown out of the window. The objects were subsequently discovered to have been stolen from a near-by jewelry store. The court ordered a new trial on the ground of misdirection of the jury.

[14]           Martin J.A. stated at pp. 318-319:

The learned trial Judge, in our view, also erred in not expressly instructing the jury that Lauzon's possession was not attributable to the appellant unless the prosecution proved that Lauzon had possession of the stolen property with the "knowledge and consent" of the appellant, and in failing to instruct the jury that "consent" requires more than mere indifference or passive acquiescence: see R. v. Lou Hay Hung, (1946), 85 C.C.C. 308 at pp. 322-3, [1946] 3 D.L.R. 111, [1946] O.R. 187 [(Ont. C.A.)].

...

There was no direct evidence of any act done or omitted by the appellant for the purpose of assisting Lauzon. There was no direct evidence of any encouragement given by the appellant to Lauzon's possession. The jury may, in the absence of an adequate direction, have concluded that the appellant's mere passive acquiescence was sufficient to support a conviction on a theory of a joint venture.





Jim O'Neil, LL.B.

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