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POSSESSION - CONTROL

R. v. Terrence, [1983] 1 SCR 357 Clii


Respondent, the passenger in a stolen car, was charged with its possession contrary to s. 313 of the Criminal Code. At trial, respondent’s testimony—(1) that he had accepted an invitation from one of his friends to go for a ride in his “brother-in-law’s car” and (2) that he did not know the car to be stolen property—was not contradicted by any direct evidence. The judge disbelieved him, however, and proceeded on the assumption that the respondent’s knowledge of the stolen character of the vehicle was a proven fact and found him guilty. The Court of Appeal quashed the conviction holding that some evidence of control on the accused’s part was necessary to establish possession under s. 3(4)(b). This appeal is to determine whether the word “possession” used in s. 3(4)(b) of the Code imports control as essential element.


Held: The appeal should be dismissed.


A measure of control on the part of the person deemed to be in possession is a constituent and essential element of possession under s. 3(4)(b) of the Criminal Code. The “knowledge and consent” required cannot exist without some measure of control over the subject-matter.

...

The important question raised by this appeal relates to the true meaning to be attached to the word “possession” as the same occurs in the context of s. 3(4)(b) of the Criminal Code and more particularly whether “possession” as there employed imports control as an essential element. Section 3(4)(b) reads as follows:


(4) For the purposes of this Act,

(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.


...







Jim O'Neil, LL.B.

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