[51] In the seminal case of R. v. Kowlyk[27], the Supreme Court succinctly stated the doctrine of recent possession in the following terms:
[…] Upon proof of the unexplained possession of recently stolen property, the trier of fact may—but not must—draw an inference of guilt of theft or of offences incidental thereto. Where the circumstances are such that a question could arise as to whether the accused was a thief or merely a possessor, it will be for the trier of fact upon a consideration of all the circumstances to decide which, if either, inference should be drawn. In all recent possession cases the inference of guilt is permissive, not mandatory, and when an explanation is offered which might reasonably be true, even though the trier of fact is not satisfied of its truth, the doctrine will not apply[28].
[52] The doctrine of recent possession applies if the trier of fact is satisfied beyond reasonable doubt that:
1. the accused was in possession of the property;
2. the property was stolen;
3. the theft was recent; and
4. the accused’s possession of the property was unexplained[29].
[53] If applicable, the doctrine of recent possession permits, but does not require, the trier of fact to draw a common sense inference that a person in unexplained possession of recently stolen property is a thief, or is knowingly in possession of stolen goods[30].
[61] The courts have recognized that “recency” depends largely upon the nature of the article stolen. In R. v. Wilson[33], Justice Martin for the British Columbia Court of Appeal stated:
The expression ‘recent possession’ is pliable. In one case it might be held to be recent possession if the article were found in the possession of the accused within a month of the theft, and in another case 12 months after[34].
[62] This statement was referenced in R. v. Killam[35]. In that case, Mr. Killam appealed his conviction for possession of stolen property. The property involved was a shipment of pearls contained in two steamer trunks valued by various witnesses at between $250,000 and one million dollars. Mr. Killam was found in possession of the two trunks full of pearls 8½ months after they had been stolen in a robbery.
[65] Adopting Justice Martin’s statement in Wilson[36], the Court reiterated that recent possession in cases of this class depends upon the nature of the goods. Justice Maclean stated:
Here it must be remembered that the property in question was one quarter million dollars-worth or more of cultured pearls contained in two trunks, a most unusual piece of property. The pearl expert Sereth said in his evidence that this quantity of pearls would represent a quantity equal to that traded in the Canadian market for five years. I think that the learned trial Judge was entitled to apply the doctrine of “recent possession” in this case[37].
[66] Although dissenting in the result, Justice Bull also concluded that the trial judge was entitled to implement the doctrine of recent possession even if the possession was some 8 ½ months after the theft. Of significance, he mentioned the following:
[...] The question of whether a theft is or is not "recent" must of necessity depend on all the circumstances. The word "recent" is relative and is incapable of any exact or precise definition. It is a question of fact and the very nature of the stolen article, its rareness, the readiness in which it can, and is likely to, pass from hand to hand, the ease of its identification and the likelihood of transferability all may have bearing to reach a conclusion as to whether its theft was recent or not. Possession of clothing, household and personal effects or appliances, jewellery and common tools might require a very short period after theft to be considered "recently stolen ". On the other hand, possession of extraordinary, unique, large, unusual or unlikely transferable goods might permit a very much longer time for the theft to retain the status of "recent". The very volume of the goods might have an important bearing. In my view, the nature of the goods in this case, a unique, bulky and very valuable shipment of cultured pearls said to weigh about 600 lb. and sufficient to satisfy the Canadian market for some years, leads me to the same conclusion the trial Judge must have reached, that the appellant in early August, 1970, had possession of pearls fairly described as “recently stolen” some 8½ months before. I am unable, therefore, to accede to the appellant’s first submission that the doctrine was not applicable because the pearls in question were not “recently stolen”[38].
[67] In R. v. Saieva[39], the Supreme Court of Canada, in considering the concept of “recency”, approved the statement made by Justice Bull in Killam that the criteria to be used to establish whether a possession is recent are the nature of its object, “its rareness, the readiness in which it can, and is likely to, pass from hand to hand, the ease of its identification and the likelihood of transferability”[40].
[68] Applying those principles to the case at bar, I can safely conclude that the Riopelle paintings are not on the same footing as clothing, household, personal effects or appliances for the purpose of determining the issue of recency.
[73] I agree that the paintings are much less likely to pass from hand to hand than ordinary everyday items of personal property. While their uniqueness surely impacts their transferability, I am not ready to conclude that the paintings are unlikely transferable goods.
[75] Moreover, the transferability of artwork is not solely dependent on its nature, size or value. Commercial strategy may also impact the readiness in which artwork in general can be transferred.
[77] Overall, taking into account the criteria set out in Killam and Saeiva, it could be reasonable for a jury in our matter to conclude that a longer than usual period of time between the theft and the possession is still within the range to qualify as “recent”.
[80] The case law reveals that a wide range of time periods have been found to come within the concept of recency. Depending on the individual circumstances of the case, it may be a matter of minutes[45], hours[46], days[47], months[48], but never a matter of years.
[81] The longest documented time intervals which qualified (or may have qualified[49]) as “recent possession” are found in the Killam and Saieva cases.
[82] As discussed previously, the gap between the theft and the possession of unique and highly valuable pearls in Killam was 8 ½ months.
[90] The doctrine of recent possession is premised on the existence of a temporal proximity between the accused’s possession and the time of theft. The strength of the inference that the trier of fact may draw depends on how recent the possession is, that is, in proportion to the shortness of the interval since the theft[51]. The closer in time possession is to the theft, the more likely it is that the trier of fact will draw the inference of knowledge of the unlawful origin of the property.
