354

Possession of property obtained by crime

354 (1) Every one commits an offence who has in his possession any property or thing or any proceeds of any property or thing knowing that all or part of the property or thing or of the proceeds was obtained by or derived directly or indirectly from

(a) the commission in Canada of an offence punishable by indictment; or

(b) an act or omission anywhere that, if it had occurred in Canada, would have constituted an offence punishable by indictment.

Obliterated vehicle identification number

(2) In proceedings in respect of an offence under subsection (1), evidence that a person has in their possession a motor vehicle the vehicle identification number of which has been wholly or partially removed or obliterated or a part of a motor vehicle being a part bearing a vehicle identification number that has been wholly or partially removed or obliterated is, in the absence of any evidence to the contrary, proof that the motor vehicle or part, as the case may be, was obtained,

(a) by the commission in Canada of an offence punishable by indictment; or

(b) by an act or omission anywhere that, if it had occurred in Canada, would have constituted an offence punishable by indictment.

Definition of vehicle identification number

(3) For the purposes of subsection (2), vehicle identification number means any number or other mark placed on a motor vehicle for the purpose of distinguishing the motor vehicle from other similar motor vehicles.

Exception

(4) A peace officer or a person acting under the direction of a peace officer is not guilty of an offence under this section by reason only that the peace officer or person possesses property or a thing or the proceeds of property or a thing mentioned in subsection (1) for the purposes of an investigation or otherwise in the execution of the peace officer’s duties.

Annotations | French

  • Section 354

     

  • For an accused to be found guilty of the offence of possession of property obtained by crime contrary to s354 the Court must be satisfied beyond a reasonable doubt that: (1) the accused was in possession of property; (2) that the proper was obtained by the commission of a criminal offence and (3) that the accused knew that the property had been obtained by crime: R v Asouth, 2017 ONSC 5651 at para 114.

     

  • Possession is defined in s4(3) of the Criminal Code which “contemplates three distinct types of possession: ‘personal possession’, ‘constructive possession’ and ‘joint possession’: R v Wu, 2010 BCCA 589; R v Harms, 2020 BCCA 242 at para. 29.

     

  • Personal possession is also sometimes referred to as “actual possession” and requires the accused to have control over the property: R v Beaver, 1957 CanLII 14 (SCC); R v Henderson, 2016 ONSC 1070 at para 23.

     

  • Control can be established where the accused manually handles the property even where it was handled only for a brief period: R v Henderson, 2016 ONSC 1070 at para 23 ; R v Fisher, 2005 BCCA 444.

     

  • Constructive possession and joint possession do not require proof of manual handling: R v Fisher, 2005 BCCA 444 at para 24.

     

  • “In order to constitute constructive possession, which is sometimes referred to as attributed possession, there must be knowledge which extends beyond mere quiescent knowledge and discloses some measure of control over the item to be possessed.” In other words, knowing that there is cocaine in a particular location does not without more constitute possession of that cocaine. For someone to be said to possess the cocaine that they know to be in a particular location, that person must have a measure of control over that location or a right to a measure of control over that location: R v Fisher, 2005 BCCA 444 at para 24; R v Caldwell, 1972 ALTASCAD 33 (CanLII); R v Smith, 1973 CanLII 1546 (BCCA); R v Pham, 2005 CanLII 44671 (CA), aff’ed 2006 SCC 26; R v Masilamany, 2017 ONSC 947 at para 13.

     

  • The mental element of the crime requires that the accused person knew or was willfully blind as to whether the property was obtained by crime. Recklessness does not satisfy the mental element of the offence: R v Vinokurov, 2001 ABCA 113 at paras. 11-14; R v Harms, 2020 BCCA 242 at para 30.

     

  • Possession of property obtained by crime ia an included offence to the charge of theft for both principals and parties, provided that the party participated in the criminal act along with the requisite knowledge: R v Francis, 2011 ONSC 4323 at para 20.

     

  • 354(2)

     

  • The presumption, that a vehicle with an obliterated vehicle identification number was obtained by the commission of an indictable offence, found in s354(2) is constitutional: Re Boyle and the Queen, 1983 CanLII 1804 (ONCA); R v Rai, 2001 CanLII 2939 (CA) at para. 4.

     

  • In this section term ‘motor vehicle’ means “a vehicle that is drawn, propelled or driven by any means other than muscular power” and includes tractors or other agricultural implements: R v Petrisor, 1997 CanLII 11334 (Sask KB) at para 12.

     

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