What are my defences for possession of stolen property?
If you are found with an item that you knew – or ought to have known – was obtained through criminal activity, you can be charged with being in possession of property obtained by crime. It does not matter if you didn’t commit the initial crime; all that matters is that you are benefitting from criminal activity. The best defence in all cases depends on circumstances and the evidence police have gathered, which is why you need an experienced criminal lawyer to help you either beat the charge or reduce the penalty upon conviction.
What charges could I be facing?
The Criminal Code contains three offences that deal with possessing property obtained by crime. The main one is s. 354 (1) that states it is a crime to be in possession of property obtained through an indictable offence, such as theft. Two closely related charges are s. 355.2 that makes it illegal to traffic in property obtained by crime and s. 355.4 that makes it a crime to possess anything obtained through crime for the purpose of trafficking. Here are some common defences to these charges.
You didn’t do it
The Crown has the burden of proving your guilt beyond a reasonable doubt. If the evidence against you does not reach that bar, you cannot be convicted. If the evidence against you is circumstantial in nature, the Crown prosecutor will have an increased burden to prove that the only inference derived from the evidence is that you are guilty.
Police overstepped their bounds
Law enforcement agencies must follow strict rules when investigating allegations of wrongdoing. The Canadian Charter of Rights and Freedoms guarantees all citizens specific rights such as freedom from unreasonable search and seizure, full disclosure and the right to counsel.
An experienced defence lawyer will be able to see if these rights were violated during the police investigation. If they were, we can ask the court to exclude any evidence related to improper activity by police.
You did not know the item was stolen
Any law-abiding citizen could quite possibly find themselves possessing items obtained through crime. Someone may have a plausible reason for selling an item for a cut-rate price. This can be a difficult defence to make, as the courts have ruled people cannot be wilfully blind about buying items that may have been stolen.
For example, you might have paid a bargain price for an item that is subsequently determined to be stolen. If you failed to make reasonable inquiries about the origin of the item, this defence will not be available to you.
You did not intend to possess stolen items
To be convicted of any crime, the Crown must prove you had the intention, or mens rea, to commit a crime. If you didn’t know what you were doing was illegal, your lawyer can argue you cannot be convicted of the crime. However, you will still have to prove you were not wilfully blind about owning a stolen item.
What is wilful blindness?
The Supreme Court of Canada defined wilful blindness in a 1995 decision, stating: “A court can properly find wilful blindness only where it can almost be said that the defendant actually knew. He suspected the fact; he realised its probability; but he refrained from obtaining the final confirmation because he wanted in the event to be able to deny knowledge. This, and this alone, is wilful blindness.
The definition was expanded in a 2010 case, where the court explained that “wilful blindness imputes knowledge to an accused whose suspicion is aroused to the point where he or she sees the need for further inquiries, but deliberately chooses not to make those inquiries.”
The penalties you will face upon conviction
The sentences given to those who possess stolen property can be harsh, depending on the value of the items. If you are found guilty of possessing items worth more than $5,000 and the charge is prosecuted as an indictable offence, the maximum penalty is 10 years in prison, with less-severe sentences if the Crown proceeds with the case as a summary conviction. Those found guilty of being in possession of less than $5,000 of stolen material face a maximum penalty of two years less a day in jail, with lighter consequences if the charge is treated as a summary conviction.
Your lawyer can ask for a discharge
If this is a first offence and the amount of stolen material you possessed was under $5,000, an experienced defence lawyer will often be able to negotiate with the Crown to have you receive a conditional or absolute discharge as an alternative to jail time and a permanent criminal record. Such offers are generally only given for non-violent offences, recognizing that they are better addressed with counselling or rehabilitation than time behind bars.
What does the Crown have to prove?
With all charges of possessing items obtained through crime, the Crown prosecutor must show two key elements: that you were in possession of the stolen property and that you knew – or were wilfully blind to the fact – that it was obtained through crime.
What does ‘possession’ mean?
When it comes to criminal law, “possession” doesn’t just mean that you had the items on your person or in your home. It also applies if you had some level of control and knowledge about the item in question, even if it was in someone else’s home or in a storage bin, etc. There are three ways you could have possessed the property.
Personal possession is when you have the stolen object in your physical possession, such as in a knapsack or in your pocket or stored in your home. Joint possession is when you know that someone else has the stolen object and you have some level of control over it. Constructive possession is when you know that the stolen object is being kept for your benefit in a place under your control, such as a friend’s house or a storage locker.
How common is this charge?
With theft, police also often charge the accused with possessing stolen property. Laying both charges gives the Crown prosecutor flexibility to pursue the one with the most supporting evidence.
According to information from Statistics Canada, 17,761 people were charged with being in possession of stolen property in 2017, the vast majority males, with 4,011 females facing charges. According to the document, these numbers include those charged with possession of stolen property, possession of stolen goods over $5,000 and possession of stolen goods under $5,000.
Stolen merchandise found in three homes
Three people were charged after a series of large-scale thefts from various retail locations across southwestern Ontario, according to a news report, which states that a 50-year-old woman is alleged to have stolen from six to 10 stores per day, an average of six days a week, “sometimes travelling up to 1,000 km a day to reach different outlets with a similar product.”
The story states that the suspect's vehicle was seized and homes in the Ontario cities of London and Oakville were searched, resulting in the seizure of an estimated $100,000 in stolen property and charges against three people for possession of property obtained by crime for the purpose of trafficking over $5,000 and theft.
Mail can be stolen property
Police in Calgary laid 87 charges – including possession of stolen property over $5,000 and possession of stolen property under $5,000 – against four people after an investigation into break and enters in the city, according to a news report.
It states that police seized seven firearms, various stolen property and more than 5,000 pieces of stolen mail originating from four different provinces, “affecting 2,194 members of the public.”
Heavy equipment theft leads to charges
Three men from London, Ont., were arrested after police found more than $200,000 in goods that had been stolen from four separate locations, a news report states after search warrants were issued for three homes and three vehicles. It adds that among the items seized were two construction machines worth $170,000, two flat-bed trailers valued at $26,000, a Ford F350 pickup truck, a snowmobile and three cellular phones.
Along with theft charges, each man has been charged with possession of property obtained by crime over $5,000 and conspiracy to commit an indictable offence.
Why you need my help
The law relating to possession of stolen property can be complex and the penalties harsh. Aside from jail time, a conviction for possessing stolen property can have consequences on your life, especially when it comes to future employment prospects. If you are facing this charge, contact me for a free consultation, in French or English, so we can begin planning your best defence.