Monday, March 9, 2015

Elements of possession

R. v. Midwinter, 2015 ONCA 150

[12]       To establish personal possession for the purposes of s. 4(3) of the Criminal Code, the Crown must establish that the accused had both control over and knowledge of the thing: R. v. Morelli, 2010 SCC 8, at para. 15.  Control refers to power or authority over the thing, whether exercised or not: R. v. Chalk, 2007 ONCA 815, 88 O.R. (3d) 448 (C.A.), at para. 19.

[13]       In the context of data contained in an electronic file, in order to commit the offence of possession of child pornography, one must knowingly acquire the underlying data files and store them in a place under one's control: Morelli, at para. 66.

[14]       The requirement of knowledge encompasses two elements: the accused must be aware that he had physical custody of the thing in question and must be aware of what the thing is: Morelli, at para. 16.  Possession requires knowledge of the criminal character of the item in issue: Chalk, at para. 18.  Where the material in question reposes in an electronic file, the  court may draw inferences about an accused's knowledge from circumstantial indicators such as ownership, access to, and usage of the computers on which the files are stored: R. v. Braudy, [2009] O.J. No. 347 (S.C.J.), at para. 52.

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