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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. vs. K.C. – Delta Police Investigation

Charges: Assault Causing Bodily Harm.
Issue: Whether it was in the public interest to proceed with criminal charges for this alleged assault that occured in the context of a recreational sporting activity.
Result: Mr. Mines provided information to the police investigator on our clients's behalf. Ultimately police decided to not recommend any criminal charges. No prosecution; no criminal record.

R. vs. K.J. – Surrey Provincial Court

Charge: Uttering Threats.
Issue: Given the circumstances of the alleged offence and the rehabilitative steps we were able to guide our client through, whether it was in the public interest to proceed with the criminal prosecution.
Result: Mr. Gauthier was able to persuade Crown counsel to stay the proceedings and to resolve this matter with a 12 month Peace Bond. No criminal record.

R. vs. Z.A. – Burnaby RCMP Investigation

Charge: Assault (domestic).
Issue: Whether the allegations of this domestic allegation would meet the Crown counsel's charge approval standard.
Result: Mr. Gauthier was able to provide information to Crown counsel that ultimately led to Crown declining to approve any criminal charge. Our client's Undertaking was withdrawn, permitting him to resume contact with his spouse. No criminal record.

R. vs. K.L. – North Vancouver Provincial Court

Charges: Assault.
Issue: Given the information we provided to Crown counsel on behalf of our client, whether  it was appropriate to proceed with a criminal prosecution.
Result: Mr. Gauthier was able tp persuade Crown counsel that this matter did not meet the charge approval standard. Croen elected to not approve any charges. No prosecution. No criminal record.

R. vs. J.Z. – Vancouver Provincial Court

Charges: Assault with a weapon.
Issue: Given the circumstances of the offence and the rehabilitative steps that we were able to guide our client through, whether it was in the public interest for our client to be granted a conditional discharge in this case involving our client not obeying  a traffic flag person and assaulting her with her car.
Result: Mr. Mines was able to persuade Crown and the Court to grant our client  a conditional discharge. Our client was placed on probation with a term to perform community service work.

R. vs. X.Z. – Vancouver Provincial Court

Charges: s.810 Recognizance (Peace Bond) Application.
Issue: Whether there was sufficient evidence for the crown to prove that the complainant's fear was reasonable.
Result: Mr. Gauthier was able to provide information to Crown that helped persuade Crown to enter a stay of proceedings. No Peace Bond was imposed on our client.

R. vs. Z.Y. – Healthcare Insurance Fraud Investigation

Charges: Fraud Under $5000.
Issue: Given the prompt repayment of restitution that we made on our client's behalf, whether it was in the public interest to proceed with a criminal prosecution.
Result: Mr. Gauthier was able to persuade the investigator to not forward any charges for prosecution. No criminal record.

R. vs. A.M. – Port Coquitlam Provincial Court

Charges: Pointing a firearm; assault with a firearm.
Issue: Given the context of the offence and our client's remorse and rehabilitation, whether a jail sentence was appropriate.
Result: Mr. Mines was able to direct our client through a course of counselling and was able to persuade Crown counsel to make a joint recommendation for a community based sentence rather than the 2 year jail sentence that was Crown's original sentencing position. After hearing Mr. Mines' submissions, the court granted our client an 18 month conditional sentence, followed by 12 months probation. No jail.

R. vs. T.B. and M.L. – Surrey RCMP Investigation

Charges: Possession of Stolen Property over $5000.
Issue: Whether police had sufficient grounds to recommend criminal charges against our clients.
Result: After Mr. Gauthier consulted with the investigator, RCMP decided to refer the case for civil forfeiture and to not pursue  any criminal charges against our clients. No prosecution. No criminal record.

R. vs. I.M. – ICBC Insurance Fraud Investigation

Charges: Fraud/misrepresentation.
Issue: Whether our client actually intended to make a misleading or fraudulent automobile accident claim.
Result: After consulting with us, our client provided an explanation to the investigator that resulted in ICBC deciding to not recommend any charges.  No prosecution. No criminal record.

R. vs. D.C. – Vancouver Provincial Court

Charges: Theft (from employeer) Over $5000.
Issue: Whether there was a substantial likelihood of a conviction and whether it was in the public interest to proceed with a criminal prosecution.,br> Result: Upon Mr. Mines providing information to Crown counsel that our client had fully settled the matter civilly and that there was a significant chance that a key Crown witness would be unavailable at trial, Crown counsel entered a stay of proceedings. No criminal record.

R. vs. M.M. – Vancouver Provincial Court

Charges: Residential Breaking and Entering x3; Possession of a prohibited weapon; driving offences.
Issues: Whether it was in the public interest to proceed on all outstanding charges and whether 30 months jail was an appropriate sentence.
Result: Mr. Johnston was able to provide information to Crown counsel about our client's significant rehabilitation plan and persuaded Crown to drop 8 counts against our client. Mr. Johnston persuaded the court to impose a sentence of 12 months' jail rather than the 30 months the Crown was seeking.

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.