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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. B.K. – Port Coquitlam Provincial Court

Charge: Assault.
Issue: Whether it was in the public interest for our client to be granted a conditional discharge.
Result: Mr. Gauthier was able to persuade Crown counsel to make a joint submission without the necessity of our client being required to complete counselling. After hearing Mr. Gauthier's submissions the court granted our client the discharge. No criminal conviction.

R. v. R.L. – New Westminster Supreme Court

Charge: Sexual Assault.
Issue: Whether there was a substantial likelihood of a conviction and whether it was in the public interest to continue with the prosecution in this retrial after a deadlocked jury decision.
Result: upon considering all of Mr. Mines' representations, Crown counsel entered a stay of proceedings. No jail. No criminal record.

R. vs. J.H. – Richmond Provincial Court

Charge: Sexual Assault.
Issue: Whether there was a substantial likelihood of a conviction and whether it was in the public interest to continue with the prosecution in this retrial after a deadlocked jury decision.
Result: upon considering all of Mr. Mines' representations, Crown counsel entered a stay of proceedings. No jail. No criminal record.

R. vs. B.J. – Downtown Community Court

Charge: Theft of property of a value not exceeding $5,000
Issue: Whether there was a substantial likelihood of conviction and whether it was in the public interest to proceed with the prosecution.
Result: Mr. Johnston identified weaknesses in the available video evidence which persuaded the Crown to direct a stay of proceedings on the charge. No jail. No criminal record.

R. vs. A.M. = Vancouver Provincial Court

Charges: Assault with a Weapon; Assault Causing Bodily Harm.
Issue: Whether there was a substantial likelihood of conviction and whether it was in the public interest to proceed with the prosecution.
Result: Mr. Johnston provided Crown counsel with information about our client’s circumstances, including his lack of prior criminal offending, his efforts at rehabilitation, and the fact that a conviction for either offence could result in the client’s deportation, an outcome which Mr. Johnston argued would be disproportionate to the seriousness of alleged offences. At the same time, Mr. Johnston pointed out weaknesses in the evidence against our client. The Crown directed stays of proceedings on both charges. No jail. No criminal record.

R. vs. A.V. – Vancouver Provincial Court

Charges: Uttering Threats x3; Criminal Harassment; Breach of Release Order (domestic).
Issue: Whether there was a substantial likelihood of conviction and whether it was in the public interest to proceed with the prosecution of these matters.
Result: Mr. Gauthier was able to persuade Crown counsel that it was more appropriate to deal with these matters in the context of Family Court. Ultimately Crown did not approve the uttering threats and criminal harassment charges and Mr. Gauthier persuaded Crown that there was no public interest in prosecuting the breach charge and to enter a stay of proceedings. No jail. No criminal record.

R. vs. K.L. – Terrace RCMP Investigation

Charges: Assault.
Issue: Whether there was a substantial likelihood of a conviction and whether it was in the public interest to proceed with the prosecution.
Result: Mr. Mines presented additional information to Crown counsel which resulted in Crown  declining to approve any charge.  No criminal record.

R. vs. O.P. – Victoria Provincial Court

Charges: Voyeurism; Criminal harassment.
Issue: Whether Crown could prove that our client actually recorded and distributed images without consent of the complainant.
Result: Mr. Gauthier was able to persuade Crown counsel to proceed only on the criminal harassment charge. After hearing Mr. Gauthier's submissions, the trial judge granted our client a conditional sentence order with a curfew for two months. No jail.

R. vs. T.B. – Vancouver Provincial Court

Charges: Indecent Act; Assault With a Weapon; Possessing of a Weapon for Dangerous Purpose (x2); Robbery; Uttering Threats; Theft of Property of a Value not Exceeding $5,000.
Issue: Whether there was a substantial likelihood of conviction and whether it was in the public interest to proceed with prosecution of all counts; whether a jail sentence was appropriate.
Result: Mr. Johnston identified weaknesses in the evidence which persuaded the Crown there was no reasonable prospect of conviction on the Indecent Act charge.  Mr. Johnston persuaded Crown counsel  to resolve the case on three of the remaining counts and to stay all remaining charges. After hearing Mr. Johnston's submissions regarding our client's personal circumstances and his significant rehabilitation efforts,  the Court agreed to release our client from custody and to place him on a probation order with conditions supporting his rehabilitation. No further jail time.

R. vs. M.G. – RCMP Investigation

Charges: Possession for the purpose of trafficking.
Issue: Whether there was a substantial likelihood that Crown could establish that our client was a willing participant in the alleged drug trafficking scheme.
Result: Mr. Mines was able to provide information and persuade police to not seek any criminal charges against our client. No No charges were approved. Our client's vehicle was retuned. No criminal record.

R. vs. A.K. – New Westminster Provincial Court

Charges: Assault.
Issue: Whether there was a reasonable likelihood of a conviction and whether it was in the public interest to proceed.
Result: Mr. Mines was able to provide additional information and persuaded Crown counsel stay the charge upon our client completing the Alternative Measures Program. No criminal record.  

R. vs. K.L. – Vancouver Police Investigation

Charge: Assault Peace Officer.
Issue: Whether there was a substantial likelihood of a conviction in this case which involved an alleged assault of a police officer.
Result: Mr. Gauthier provided information and a video to Crown counsel which showed that the police made an unlawful arrest thereby giving our client lawful grounds to defend himself. Mr. Gauthier was able to persuade Crown to not approve any charges. No criminal record.

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.