Possession of stolen property Lawyers in Canada

The Crown is the prosecutor. A person charged with an offence is presumed innocent until proven guilty, so the Crown is the side that has to prove the charge. That presumption is part of section 11(d) of the Canadian Charter of Rights and Freedoms.

Section 354(1) lists the parts of the charge. There must be property or a thing, or proceeds of one. It must have been obtained by or derived from an offence punishable by indictment. The person must have it in their possession. And the section says the person must have it knowing that all or part of it came from such an offence. The evidence on each part is for the court to weigh.

Possession has its own definition. Under section 4(3), a person has anything in possession when they have it in their personal possession, or when they knowingly have it in the actual possession or custody of another person, or knowingly have it in any place, whether or not that place belongs to or is occupied by them, for the use or benefit of themselves or of another person. The same subsection adds that where one of two or more persons, with the knowledge and consent of the rest, has anything in custody or possession, it is deemed to be in the custody and possession of each and all of them.

Section 358 says when the offence of having in possession is complete. That happens when a person has, alone or jointly with another person, possession of or control over the property, or when the person aids in concealing or disposing of it.

Section 354(2) adds a rule of evidence for one kind of property. If a person has in their possession a motor vehicle, or a part of one that bears a vehicle identification number, and the number has been wholly or partially removed or obliterated, that is proof, in the absence of any evidence to the contrary, that the vehicle or part was obtained by an indictable offence.

Section 355 sets the punishment and ties it to the value of the property. If the subject matter of the offence is a testamentary instrument, or its value is more than $5,000, the person is guilty of an indictable offence liable to imprisonment for up to 10 years, or of an offence punishable on summary conviction. If its value is not more than $5,000, the person is guilty of an indictable offence liable to imprisonment for up to two years, or of an offence punishable on summary conviction. In both cases the offence can be prosecuted either way.

Unless another penalty is set, a summary conviction offence carries a fine of up to $5,000, imprisonment of up to two years less a day, or both. That rule is in section 787(1). Section 355 sets no minimum term. A maximum is the ceiling the law allows. It does not say what sentence a court would give in any case.

A court that convicts may also make a restitution order under section 738. In the case of damage to, or the loss or destruction of, the property of any person as a result of the offence, the court may order payment of an amount not exceeding the replacement value of the property, less the value of any part that is returned.

Nearby sections create related offences. Section 355.2 covers trafficking in property knowing that it was obtained from an offence punishable by indictment, and section 355.4 covers having property in possession for the purpose of trafficking.

Section 36 of the Immigration and Refugee Protection Act says a permanent resident or foreign national is inadmissible on grounds of serious criminality for having been convicted in Canada of an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years. Whether that applies to a particular person is a question for a lawyer who practises immigration law.

Whether a defence is open in a particular case depends on the evidence. The wording of section 354 points to the questions a court will look at. The section requires knowledge, so one question is whether the evidence shows what the person knew about the property when they had it. Another is whether the property was in fact obtained from an offence punishable by indictment. Another is possession, which section 4(3) defines as described above.

Possession of stolen property is a different charge from theft. Section 322 describes theft as fraudulently and without colour of right taking or converting a thing, with one of the intents the section lists. Section 354 asks instead whether a person has property in possession knowing where it came from.

Charter rights apply from the start. Section 10 gives everyone on arrest or detention the right to retain and instruct counsel without delay and to be informed of that right. Section 8 gives everyone the right to be secure against unreasonable search or seizure. If the property was found in a search, section 8 may raise a question about how that search was done. Under section 24(2), evidence obtained in a manner that infringed Charter rights is excluded if admitting it would bring the administration of justice into disrepute.

In Ontario, every charge under the Criminal Code starts in the Ontario Court of Justice, and about 95% of charges are completed there. The Superior Court of Justice can try any indictable offence but generally tries only the most serious ones.

When a release decision is made, section 515 says the justice shall make a release order without conditions unless the prosecutor shows cause why detention in custody is justified or why another order should be made. Section 493.1 says the decision gives primary consideration to release at the earliest reasonable opportunity and on the least onerous conditions. Section 11(e) of the Charter protects the right not to be denied reasonable bail without just cause.

If the case is prosecuted summarily, a summary conviction appeal in Ontario goes to the Superior Court of Justice sitting in the region, district or county where the case was decided. After a conviction on indictment, an appeal goes to the court of appeal. A person may appeal as of right on a question of law alone. An appeal on a question of fact, or of mixed law and fact, needs leave. So does an appeal against sentence.

Legal Aid Ontario may pay for a lawyer if the person qualifies and is charged with a crime that could mean jail on conviction, or is 12 to 17 and charged under the Youth Criminal Justice Act. Duty counsel is a lawyer at the courthouse for that day. For people who qualify and have no lawyer, duty counsel can advise on rights, ask to delay a court date, act at a bail hearing, help with a guilty plea, speak at sentencing, and meet the Crown.

A legal aid certificate pays a roster lawyer, one approved to take legal aid clients, for the length of the criminal case. Applications are online or by phone at 1-800-668-8258.

The Law Society of Ontario keeps a public Lawyer and Paralegal Directory, which can be used to look up a lawyer. The Ontario lawyers on this site are listed by city. Nothing on this page ranks or recommends any of them.