What are defences to possession of stolen property?
Like all criminal offences, defences to possession of stolen property are based heavily on the circumstances of the case. The most important first step in determining what defences exist for your case is to contact a criminal defence lawyer who has experience representing individuals charged with possession of stolen property. Cory Wilson has successfully represented countless individuals charged with possession of stolen property.
Lack of knowledge that the item was stolen
In order to be convicted, the Crown must prove beyond a reasonable doubt that you knew or ought to have known that the property was stolen. There is no onus on the accused to prove that he was unaware that the property was stolen. In many cases, individuals inadvertently purchase stolen goods online through popular websites such as Kijiji. In these situations, it is very easy to have charges withdrawn by showing the Crown Prosecutor the advertisement and correspondence with the seller of the stolen item prior to trial. However, if no such documentation exists, the Crown must demonstrate to the judge that the accused had the required knowledge that the item was stolen to satisfy the essential element of the offence.
Lack of Possession
The Crown Prosecutor must also prove that you actually had possession of the stolen property. In certain circumstances, the police may arrest an accused who is in another person’s home where stolen items exist. It is not enough for the prosecutor to simply state that the accused was in the house so they were in possession of the items. In order to prove possession, the Crown prosecutor must prove knowledge and control. Even if the accused knew there were stolen items present, the Crown must also prove the accused had control over the items. Possession in these types of situations is very hard to prove and a skilled defence lawyer can, through cross-examination of Crown witnesses, raise a reasonable doubt as to the essential elements of the offence.
Most often, police find stolen property inside an accused’s home or vehicle. Except for in rare circumstances, the police will have obtained a search warrant to gain access to the home or vehicle. A search warrant requires the police to have first conducted an investigation and then present a judge with an Information to Obtain a Search Warrant (ITO). A judge relies on the information contained in the ITO when deciding whether or not to issue a search warrant. In many cases, the ITO contains errors and omissions that a skilled defence lawyer can find and exploit. If the police obtained the search warrant in breach of an accused’s Charter right to be free from unreasonable search and seizure, an application can be made in court to have all of the evidence found in relation to the search warrant excluded at trial. Without the evidence of stolen property, the Crown will not be able to secure a conviction.