Friday, September 28, 2012

Proof of possession

R. v. Brar (G.), 2008 MBQB 133, 234 Man.R. (2d) 1, is a concise statement of the law of proof of possession:

[37]   Central to all three charges is the issue of possession.  Possession may be actual, constructive and/or joint.  To prove possession, the Crown must prove beyond a reasonable doubt both knowledge of and control by the accused of the property allegedly possessed.  The Crown can make out this proof by direct and/or circumstantial evidence.  While the court looks at each fact individually, the standard of proof beyond a reasonable doubt does not apply to individual pieces of evidence in the case, but to the evidence as a whole.  And where, as here, the case is largely based on circumstantial evidence, it is particularly important to consider the evidence in its totality and so decide the case.


[38]   The onus of proof as to the offence itself remains on the Crown throughout.  While it may appear that the evidence adduced by the Crown cries out for an explanation by the accused, and while the evidentiary onus can, in some circumstances, shift to the accused upon presentation by the Crown of a prima facie case, the accused is never required to testify or call a defence and is always entitled, without doing so, to argue that the Crown has failed to prove beyond a reasonable doubt an essential ingredient of the offence charged.

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