R. v. Gagnon, 2006 MBCA 125
Lien vers la décision
9 As explained in the text of The Honourable Mr. Justice S. Casey Hill et al., McWilliams’ Canadian Criminal Evidence, looseleaf, 4th ed. vol. 2 (Aurora: Canada Law Book, 2003), the doctrine of recent possession refers to the inferences that may be made by the trier of fact (in this case the judge) in certain circumstances of possession of stolen goods (at para. 28:60.10):
The doctrine of recent possession is a presumption of fact, not of law. It is a convenient way of compendiously referring to the inferences which arise from the unexplained possession of property which it is proved had been recently stolen. One inference is that the possessor was a thief; another that he was the receiver. … It depends on the surrounding circumstances whether the accused is guilty of theft or receiving. …
10 For the doctrine to apply, the Crown must prove not only that the accused was found in possession of goods but that the goods were recently stolen. See the leading decision of R. v. Kowlyk, 1988 CanLII 50 (SCC), [1988] 2 S.C.R. 59. In R. v. Cuming (2001), 2001 CanLII 24118 (ON CA), 158 C.C.C. (3d) 433 (Ont. C.A), Charron J.A. (as she then was) described the following statement of McIntyre J. in Kowlyk, as “[a] succinct statement” of the doctrine of recent possession (at para. 33):
In summary, then, it is my view, based on the cases, both English and Canadian, which I have referred to, that what has been called the doctrine of recent possession may be succinctly stated 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.
[Emphasis added]
11 Earlier in Kowlyk, McIntyre J. made it clear that the unexplained recent possession of stolen goods, by itself, permits (but does not require) the trier of fact to infer that the possessor stole the goods (at p. 72):
The question which arises here is whether the unexplained recent possession of stolen goods, standing alone, will also warrant an inference of guilt of breaking and entering and theft of the goods… . It is my view that this question must be answered in favour of the Crown. …
12 The requirement that the Crown prove that the goods were recently stolen relates to when the underlying offence occurred. Any number of factors can be considered in determining whether a possession is recent including the nature of the object, its rareness, the readiness in which it can, and is likely to, pass to another and the ease of identification. See Saieva v. The Queen, 1982 CanLII 51 (SCC), [1982] 1 S.C.R. 897.
13 When deciding whether to infer only possession of the stolen goods or to infer the underlying offence, the trier of fact must consider all the circumstances. See Kowlyk and R. v. Abernathy (J.C.) 2002 BCCA 8, 161 B.C.A.C. 247,. Common sense factors to be considered include how close in time to the theft or robbery are the goods in possession of the accused and the nature of the stolen goods. Obviously, the closer in time possession is to the underlying offence, the more likely it is that the trier of fact will draw the inference of guilt on the underlying offence. However, a longer period of time does not prevent the inference. This is evident in Kowlyk where the break-ins occurred on June 1, 6, and 8 and on July 11, but it was not until August 27th that the goods were found in the possession of the accused. The Supreme Court upheld the convictions on the underlying offences.
14 Ultimately, the trier of fact, upon a consideration of all the circumstances surrounding the unexplained possession of recently stolen goods, will decide which inference is to be drawn. That is a question of fact. As such, deference is owed to such finding. See, for example, H.L. v. Canada (Attorney General), 2005 SCC 25, [2005] 1 S.C.R. 401, and R. v. Gagnon, 2006 SCC 17, [2006] 1 S.C.R. 621.