Whether you are facing drug charges, weapons charges, stolen property charges, or firearms charges, the prosecutor will have to prove that you had possession of the illegal item.
Possession in Canadian criminal law does not equal ownership.
Two elements that the prosecutor must prove beyond a reasonable doubt to establish possession are:
Knowledge and control
The Crown will rely on circumstantial evidence to prove possession of an item found in a vehicle. Some of the things the Crown could rely on include:
- Ownership of the vehicle
- Registration of the vehicle
- Is the item found in plain sight?
- Are there fingerprints on the item?
- Did the accused provide statements suggesting knowledge of the item?
- Would an occupant of the vehicle smell the item?
- How many people are found in the vehicle?
- How long was the accused in the vehicle?
- Is the item large or small?
- If the police stop your vehicle and you have a loaded firearm sitting on the passenger seat next to you, and you are the only occupant of the vehicle, the prosecutor will not have difficulty establishing possession. The firearm was in plain sight.
- If, however, there are multiple occupants of the vehicle, and the firearm is found in a backpack located between two occupants in the backseat of a vehicle, then the prosecutor may have a more difficult time establishing knowledge and control.
There is a common-sense presumption that a person knows the contents of his/her vehicle. Consequently, the prosecutor will typically have a strong possession case if the accused is the sole occupant of the vehicle.
Often, when an illegal item is found in a vehicle, the police will charge every occupant of the vehicle with possession of the illegal item. The police do this to protect the investigation; otherwise, a person who is not charged could show up to trial and take the fall for the item.
Further, officers will frequently try to elicit statements from an accused person at the roadside to establish that the accused had knowledge and control of the item found. Whether or not those statements can be relied on by the prosecutor at trial will depend on whether the police officers violated Charter rights.
Defending cases that involve the possession of illegal items in a vehicle goes far beyond the law of possession. Often, these trials have nothing to do with what the accused did and everything to do with what the police did:
Did the police have a lawful reason to pull the vehicle over?
- To question the accused?
- To detain the accused?
- To arrest the accused?
- To search the accused?
- To search the vehicle?
Simply because an accused does not have a possession defence does not mean that the case is open and shut. There may be procedural or constitutional defences at play.