There are a number of offences in the Criminal Code that are based on being in possession of a firearm. Examples include: possession of a prohibited or restricted firearm without a licence (ss. 91 and 92 of the Criminal Code); possession of a loaded prohibited weapon (s. 95 of the Criminal Code); and possession of a firearm knowing that it had been by the commission of an offence (s. 96 of the Criminal Code). In most situation (other than challenging the legality of the search that uncovered the gun), the outcome of the case turns on whether the Crown can prove beyond a reasonable doubt that the accused had actual, joint or constructive possession of the firearm.
Knowledge and control are essential elements common to all three. When personal possession is alleged, the knowledge element consists of two components. An accused must be aware that they have physical custody of the thing alleged. And an accused must be aware of what that thing is. These elements of knowledge must co-exist with an act of control.
When personal possession is not alleged or cannot be established on the evidence, the Crown may rely on constructive possession to prove its case. Constructive possession is established when an accused does not have physical custody of the thing but has it in any place for their own or another’s use or benefit. Constructive possession is complete where an accused:
- has knowledge of the character of the thing;
- knowingly puts or keeps the thing in a particular place, irrespective of whether the place belongs to or is occupied by the accused; and
- intends to have the thing in the place for the use or benefit of the accused or of another person.
When things are found in a premises or place occupied by an accused, no presumption of knowledge and control arises from proof of occupancy. Occupancy does not create a presumption of possession.
Many of these offences have mandatory minimum sentences that involve lengthy periods of jail. Therefore it is important to challenge any evidence of knowledge or control, either through cross-examination of witnesses or presenting a defence case.