Possession is defined legally in Section 4(3) and states that possession occurs in 3 ways
- Personal Possession – on the person
- Joint Possession – in custody of another person or location (car, locker, gym bag)
- Constructive Possession – one person has actual possession but others have knowledge (of the illegal item), and consent to its presence.
Knowledge, Consent and Control
The most difficult legal element to prove for possession is knowledge. Evidence that the accused knew the illegal item was present. A lack of knowledge is more difficult for the accused to argue if they are in personal possession of the item, however, the moment that the property is located under a seat, in a bag, on a computer or away from the accused the more likely defence will argue that the accused was unaware of the illegal item, as the receptacle, had been used by some other unknown party.
Consider treating any item that you have to place in the possession of the accused as a forensic exhibit.
Fingerprints, DNA or computer analysis may be able to put the item in the custody of the accused.
In R. v. Morelli 2010 the Supreme Court of Canada (available on CanLII) in a split decision, ruled that viewing child porn on a computer is not “possessing” child pornography, if the accused does not “know” that a copy is kept on his computer once he has viewed it. Possession of child porn requires that the officer prove that accused saved the images or had knowledge on how to retrieve them once they were viewed.
Statutory Definition of “Possession”