Sunday, April 14, 2013

Break, entry and theft may be established by recent possession of goods obtained by break and enter

R. v. Pitcher2013 NLCA 22 allows the doctrine of recent possession to be used to prove break, entry and theft. Some might suggest that holding places a great deal of weight on what is a permissible presumption of fact; nevertheless the Court's holding is clear:

[29]        The doctrine of recent possession permits a conviction for break, entry and theft if it is established that the accused is in recent possession of the goods stolen in the break and entry.  Recency is determined by the circumstances, including the amount of time between the commission of the break, entry and theft and the possession of the stolen goods.  Of course it must be established that the goods in possession of an accused are the goods which were stolen in the break and entry.  The doctrine is invoked when there is no explanation put forward to explain the accused's possession of the stolen property.

[30]        The doctrine is explained in both Newton and Kowlyk, as noted by my colleague in her decision.  In addition to the excerpts quoted, I would add the words of McIntyre J. at pages 71 to 72 of Kowlyk:

On the basis of the Canadian authorities referred to above, I am of the view that it is clearly established in Canadian law that the unexplained recent possession of stolen goods, standing alone, will permit the inference that the possessor stole the goods. The inference is not mandatory; it may but need not be drawn. Further, where an explanation is offered for such possession which could reasonably be true, no inference of guilt on the basis of recent possession alone may be drawn, even where the trier of fact is not satisfied of the truth of the explanation. The burden of proof of guilt remains upon the Crown, and to obtain a conviction in the face of such an explanation it must establish by other evidence the guilt of the accused beyond a reasonable doubt.

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