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Possession of Stolen Property

The Charge

Closely related to theft, possession of stolen property is an offence punishable by indictment, if the value of the property is over $5000, for up to two years imprisonment. Where the value is under $5000, the offence is punishable on summary conviction for up to two years jail, less a day. Section 354 of the Criminal Code sets out that it is an offence to possess property “knowing that the property was obtained or derived directly or indirectly by the commission of an offence.”  Thus, it is illegal to possess property that has been stolen or obtained fraudulently. It is an essential element of the offence that the Crown proves, beyond a reasonable doubt, that the accused knew that the property was derived from an offence and that the accused exercised control over the property.

The Investigation

Actual theft or fraud is not an essential element of this offence. Rather, the Crown need only prove that the property belonged to someone other than the accused and that the accused had knowledge that the property he possessed was, in fact, obtained through the commission of an offence. The investigating officer will certainly take statements from the property’s true owner and any witnesses who observed the accused in possession of the property. Knowledge that the property was obtained through an offence may be inferred, such as where the suspect is driving a vehicle with a broken door lock and a “punched” ignition. Additionally, police will also very likely seek to obtain an explanation from their suspect in an effort to get the suspect to admit that they knew the property was obtained illegally. This is where we as experienced defence lawyers can help by providing advice to our clients regarding their rights under the Charter, including their right to remain silent.

Recent Successes

R. v. S.B. – Vancouver Provincial Court

Charge: Carrying a Concealed Weapon.
Issue: Given the information Mr. Johnston was able to provide to Crown counsel regarding the circumstances of the incident and our client's background, whether it was in the public interest to proceed with a criminal prosecution.
Result: Mr. Johnston persuaded Crown counsel that there was insufficient public interest, leading Crown to enter a stay of proceedings. No criminal record.

R. v. M.A. Insurance Fraud Investigation

Charge: Insurance Fraud Under $5000.
Issue: Given our client's rehabilitation and repayment of the disputed funds, whether it was in the public interest to proceed with a criminal prosecution.
Result: Mr. Gauthier was able to persuade the insurance company to settle the matter on a civil basis. No criminal charges were forwarded. No criminal record.

R. v. D.S. – Whitehorse Yukon Territorial Court

Charge: Section 810 Recognizance (Peace Bond) Application.
Issue: Whether the Informant could prove her allegations on a balance of probabilities.
Result: After Mr. Gauthier' communications with the Informant, she declined to advance the case and, on the day of the trial, the court withdrew the Application. No record.

R. v. E.N. – North Vancouver Provincial Court

Charge: Fraud Under $5000.
Issue: Given the information Mr. Gauthier provided to Crown counsel regarding our client's personal circumstances and the circumstances of the alleged offence, whether it was appropriate to proceed with a criminal prosecution.
Result: Mr. Gauthier was able to persuade Crown that there wa sno substantial likelihood of a conviction resulting ultimately in Crown declining to approve a charge. No criminal record.

R. v. E.N. – North Vancouver Provincial Court

Charge: Mischief Under $5000.
Issue: Given the information Mr. Gauthier provided to Crown counsel regarding our client’s personal circumstances and the circumstances of the alleged offence, whether it was appropriate to proceed with a criminal prosecution.
Result: Mr. Gauthier was able to persuade Crown that there was no substantial likelihood of a conviction resulting ultimately in Crown declining to approve a charge. No criminal record.

R. v. K.D. – Vancouver Provincial Court

Charges: Failing to Remain at the Scene of an Accident.
Issue: Whether our client's Charter rights were breached due to unreasonable delay.
Result: Mr. Mines was able to provide information to Crown counsel that ultimately caused Crown  to proceed against our client as the owner and not the driver of the vehicle. He plead to the lesser charge of Failing to Remain under the Motor Vehicle Act and received a fine, but no driving prohibition. No criminal record.

R. v. H.C. – Vancouver Provincial Court

Charges: Sexual Assault; Sexual Interference.
Issue: Whether the complainant held herself out to be at least 16 years of age and whether our client took reasonable steps to ascertain her age.
Result: Mr. Mines was able to provide information to Crown counsel on our client's behalf that established that our client did take reasonable steps to ascertain the complainant's age. In the result, Crown declined to approve any criminal charges. No criminal record.

R. v. A.L. – Vancouver Provincial Court

Charges: Tax Evasion (Excise Tax Act); Fraud Over $5000 x2.
Issue: Given our client's cooperation with the investigation, his civil settlement and his genuine remorse, whether a jail sentence was appropriate for this almost one million dollar tax evasion case.
Result: Mr. Mines was able to provide medical and financial information to Crown counsel that ultimately led Crown to proceed on the fraud charges rather than seeking an almost one million dollar mandatory fine under the Excise Tax Act. The Court accepted the joint submission for a 2 year less a day conditional sentence and probation. No jail.

R. v. A.R. – Vancouver Provincial Court

Charges: Assault (reduced to Peace Bond).
Issue: Given the rehabilitative steps we were able to guide our client through, whether it was in the public interest continue with a criminal prosecution.
Result: Mr. Mines was able to persuade Crown counsel to proceed with a Peace Bond rather than the criminal assault charge. No criminal record.

R. v. T.C. – Fraud Over $5000 Investigation

Charge: Fraud Over $5000.
Issue: Given the civil settlement of this $245,000 misappropriation from employer case, whether there was any interest in pursuing  a criminal investigation and prosecution.
Result: Mr. Johnson was able to negotiate a civil settlement and obtained a Final Release from the complainant. No criminal investigation occurred. No risk of jail or criminal prosecution.

R. v. Q.D.T. – Vancouver Provincial Court

Charge: Assault.
Issue: Given the rehabilitative steps we were able to guide our client through, whether it was in the public interest to continue the criminal prosecution.
Result: Mr. Gauthier was able to persuade Crown counsel to allow our client into the Alternative Measures program. Upon completion of Alternative Measures, Crown enteresd a stay of proceedings. No criminal record.

R. v. A.M. – Possession of Stolen Property Investigation – Squamish RCMP

Charge: Possession of Stolen Property (motor vehicles).
Issue: Whether there was sufficient evidence that our client was aware that the vehicles that he possessed had been obtained by the commission of crimes.
Result: Mr. Gauthier was able to steer our client through the police investigation. Ultimately, based on insufficient evidence, police declined to forward charges against our client. No prosecution. No criminal record.

The Defence

Unreasonable Search

Section 8 of the Charter guarantees that people must be free from unreasonable search and seizure. The role of defence counsel in any search case is to analyze the actions of the investigating police officers to test whether their search was, in fact, lawful and authorized by the Charter. In some situations, police must obtain pre-authorization from a justice or judge in the form of a search warrant. Where police overreach their authority, and conduct a search based on mere suspicion, rather than probable grounds, we will apply to the court under s.24(2) of the Charter to have the “fruits of the search” excluded from the trial. Without the admission of the property into the trial, the court will likely find insufficient evidence to convict.

Lack of Knowledge

Section 4(3) of the Criminal Code sets out that a person has something in “possession” when they:

  • Are in actual possession of it; or
  • Knowingly keep the thing in any place; and
  • Where one of two persons or more, with the knowledge and consent of the rest, has the thing in their custody, it shall be deemed to be in the custody of all of them.

Even in situations where police find an accused in actual possession of stolen property, absent any confession, the accused will be found not guilty if they can establish that they believed on reasonable grounds that they were in lawful possession of the property or that they were acting under the authority of a person whom they reasonably believed had lawful authority over the property.

Start with a free consultation.

If you are being investigated by police or if you’ve been charged with a criminal or driving offence, don’t face the problem alone. Being accused of an offence is stressful. The prospects of a criminal record or jail sentence can be daunting. Even if you think there is no defence, we may be able to help. To schedule a free initial consultation with one of our Vancouver lawyers, contact us now.