No presumption of possession because of tenancy or occupancy

R. v. Watson, 2011 ONCA 437 is a very clear statement that there is no presumption of possession because of tenancy or occupancy. Specifically, mere occupation of premises does not lead to a presumption of knowledge of what is in those premises. Now, as a factual, common sense matter, a judge might well conclude someone knew what was in their home; but that is case specific and not a presumption at law. The Court wrote:

[12] However, in several other parts of her reasons, the trial judge said that, because of his tenancy, Watson was legally deemed to have knowledge and be in possession of the drugs and gun unless he could rebut that presumption. Three passages from the trial judge’s reasons — at paras. 6, 22 and 42 — show that she placed the burden on Watson to prove that he was not in possession:

On the issue of whether there is specific significance to be accorded to the fact that one of the individuals is a tenant and the other is not, Bryden’s evidence was that drug traffickers certainly do not hold or reside at a specific address for any length of time. This is significant because certain presumptions, although rebuttable might apply to Watson, who is the tenant, with respect to possession.

…

As the tenant, Watson is legally deemed to be in possession unless, on a thorough review of the evidence, the Court deemed otherwise.

…

Watson is deemed to have knowledge by reason of his tenancy as described above. His evidence does not remove any doubt with respect of his knowledge, possession and control.

[13] These passages reflect a clear error of law. A rebuttable presumption of possession because of tenancy or occupancy does not exist at common law or under the Controlled Drugs and Substances Act, S.C. 1996, c. 19. Moreover, this error is not an isolated misstatement. The trial judge repeated the error three times in her reasons. Thus, although the trial judge correctly approached the question of Watson’s possession in some parts of her reasons, this error is evident in other parts of her decision and it taints her finding of possession. As a result, this finding must be set aside.