Possession of Stolen Property (s. 355) Charges In Canada: Offences, Defences, Punishments

What is “Possession of Stolen Property” in Canada?

Possession of stolen property is criminalized under sections 354(1) and 355 of the Criminal Code. Section 354 makes the possession of stolen property a crime, and section 355 outlines the correlated punishment for the offence.

You may be found guilty of possession of stolen property if:

• You were in possession of property;
• The property you possessed was obtained through crime (usually theft);
• You knew that you were in possession of the property; and,
• You knew that the property was obtained by crime.

Section 355 of the Criminal Code makes possession of stolen property a hybrid offence meaning that the Crown can elect to proceed by way of indictment or summarily. The maximum punishment for this offence depends on the value of the property in your possession. The Criminal Code benchmarks prospective punishment on whether or not the property in possession is worth less, more or equal to $5000. This can sometimes be referred to as “possession under” or “possession over”.

Examples

Some examples of possession of stolen property might include:

• You purchase a designer item at an unseemly low price from an unofficial distributor or seller. You’re aware that the item does not ever sell on the general market for such a low price, however, you buy the item anyways. It turns out the seller stole the item and while you did not steal the item yourself, you did nothing to further investigate the ‘too good to be true find’ and realize its true source.
• You hide or conceal the proceeds of a crime for a friend (e.g., a friend robs a bank and asks you to hide the cash he stole in your basement and you do so).
• Accepting money from the sale of a stolen vehicle (even though the money itself is not stolen, this could be considered possession as the cash was obtained through the commission of another offence).

Defences

A strong defence to a charge of possession of stolen property will depend on the circumstances of one’s case.

However, some common defences against a charge of possession of stolen property include:

• Claim of right to the property
• You did not know or did not have reason to know the property was stolen (lack of mens rea)
• Lack of possession
• Colour of right
• Innocent Possession
• Applicable Charter defences

Punishment

Possession of stolen property is a hybrid offence. This means that the Crown can elect to charge you with an indictable offence or a summary one. The way the Crown elects to proceed depends largely on the facts of the case. Offences like possession of stolen property can vary in severity and the Crown considers all of the evidence and facts at hand before making an election. Nevertheless, the Crown and the sentencing judge are always bound by the Criminal Code’s sentencing prescriptions.

As per section 355 of the Criminal Code, if the stolen property is valued at more than $5000, the convicted is guilty of:

On the other hand, if the stolen property is valued at less than $5000, the convicted is guilty of:

In both instances (where the property is valued at more than $5,000 and where the property is valued at less than $5,000) the Crown can elect for either indictable or summary conviction.

There is no minimum penalty for possessing stolen property, however, the maximum penalty is 10 years imprisonment in cases where the stolen property was valued at upwards of $5000. Upon summary conviction, the maximum penalty is two years less a day imprisonment and/or a $5,000 fine.

Overview of the Offence

Possession of stolen property is covered by section 354(1) of the Criminal Code and punished under section 355 of the Criminal Code:

Property, in section 2 of the Criminal Code includes:

In establishing the definition of “possession”, section 4(3) Criminal Code states that:

To prove that you were in possession of stolen property, the Crown will have to present and adduce an array of evidence which demonstrates your guilt.

This might include showing the:

• Date (of possession and actual theft or other indictable offence for which the items were procured)
• Identity of the accused
• The property was obtained via an indictable offence and not a summary one (usually via theft).
• The accused knew the property was obtained through the commission of an indictable offence in Canada
• Ownership and value of stolen property
• The accused had actual possession (this can include personal possession, constructive possession, joint possession, aiding in concealment, or aiding in disposal).

This is not an exhaustive list; however, it illustrates some of the main contentions in possession of stolen property cases. For the Crown to secure a conviction for possession of stolen property, the actus reus and the mens rea of the offence must be proven beyond a reasonable doubt.

The Guilty Act (Actus Reus)

The actus reus or standard of action which must be proven to satisfy a finding of guilt is control of the possession. Criminal possession occurs when a person controls a thing obtained by crime and knows what the thing is. According to the Criminal Code, there are many different types of possession. See the definition of “possession” generally according to the Code here. Different types of possession can include:

Personal possession (section 4(3)(a))

• Establishing personal possession includes establishing the accused had both control and knowledge of the thing (R v Morelli, 2010 SCC 8 (CanLII), [2010] 1 SCR 253)
• In the context of an electronic file, the accused must knowingly acquire the file (R v Morelli, 2010 SCC 8 (CanLII), [2010] 1 SCR 253)
• The requirement of knowledge encompasses three elements: the accused must be aware that he or she had physical custody of the thing in question, must be aware of what the thing is (R v Morelli, 2010 SCC 8 (CanLII), [2010] 1 SCR 253), and have knowledge of the criminal character of the item (R v Chalk, 2007 ONCA 815 (CanLII))
• The court in R v Hess noted that manual handling of an object with concurrent knowledge of what it is, suffices for possession (see: R v Hess (No. 1), 1948 CanLII 349 (BCCA))

Constructive possession — (sections 4(3)(a)(i) and (ii))

• As per Justice Mackenzie in the British Columbia Court of Appeal case R v Ahmadzai, “proof of manual handling of a prohibited item or substance is not required to prove constructive or joint possession under [section] 4(3). Rather, to prove constructive possession, the Crown must prove beyond a reasonable doubt that the accused knew of the nature of the prohibited item or substance and some measure of control over it” (see: R v Ahmadzai, 2012 BCCA 215 (CanLII))

Joint possession — (section 4(3)(b))

• As per section 4(3)(b) of the Criminal Code, where another person has possession, and the accused knows and consents, then the accused has joint possession with the other person. According to the court in R v Mohamad, “consent” within the meaning of this section requires some measure of control over the other party’s possession, or some power or authority over the disposition of the object (see: R v Mohamad, 2004 CanLII 9378 (ONCA)).
• For example, in the case R v TAK, a passenger in a stolen car who suggests that the driver drove it away from the scene of an accident may grant sufficient “consent” to place the passenger in joint possession with the driver (see: R v TAK, 2005 BCCA 293 (CanLII))

Furthermore, section 358 of the Criminal Code extends the definition of “possession” to include aiding in concealing or disposing of something (also known as “fencing”).

The common factor to all of these modes of possession is the power of the accused to control — at least in some measure — what happens to the item in question, or who gets the use or benefit of it. 

The Guilty Mind (Mens Rea)

The mental element which must be proven to secure a conviction of possession of stolen property is embedded in the wording of section 354 where it says “knowing that all or part of the property or thing or of the proceeds was obtained by or derived directly or indirectly from [the commission of a crime].”

In simpler terms, criminal possession does not occur unless the defendant knows of the criminal nature of the thing in his possession (see: Beaver v The Queen, 1957 CanLII 14 (SCC), [1957] SCR 531).  

The mens rea standard for possession of stolen property can be established by wilful blindness (see: R v Vinokurov, 2001 ABCA 113 (CanLII)).

In R v Jorgensen, 1995 CanLII 85 (SCC), [1995] 4 SCR 55 the Supreme Court of Canada adopted the definition of willful blindness as such:

A court can properly find wilful blindness only where it can almost be said that the defendant actually knew, he suspected the fact, realized its probability but he refrained from obtaining the final confirmation because he wanted in the event to be able to deny knowledge.

In R v Briscoe, 2010 SCC 13 (CanLII), [2010] 1 SCR 411, the Supreme Court of Canada stated that “the doctrine of wilful blindness imputes knowledge to an accused whose suspicion is aroused to the point where he or she sees the need for further inquiries, but deliberately chooses not to make those inquiries” (e.g., purchasing an item known to be quite expensive on the general market at a severe discount and not investigating any suspicions as to why you might be able to obtain the item so cheaply could be considered possession…).

According to the court in R v Farmer, 2014 ONCA 823 (CanLII), “[wilful blindness] requires more than merely a failure to inquire, but “deliberate ignorance”. Willful blindness may also be established if the accused inquires, receives a suspicious answer, and deliberately refrains from further inquiry thereafter (see: R v Lagace, 2003 CanLII 30886 (ONCA)). Additionally, wilful blindness must be proven beyond a reasonable doubt (see: R v Montague-Mitchell, 2018 SKCA 78 (CanLII)).

Lastly, the Crown must prove that the accused intended to impute control over the property. Even if the defendant knew of the presence of the item of concern, and had control over it, the defendant may be acquitted if the defendant intended not to exercise control over it. For example, a person who discovers illegal drugs and takes them to the police should not be convicted. In the case of R v York, 2005 BCCA 74 (CanLII), the court noted that personal possession is established where an accused person exercises physical control over a prohibited object with full knowledge of its character, however brief the physical contact may be, and where there is some evidence to show the accused person took custody of the object willingly with intent to deal with it in some prohibited manner.

It is important to note that where the accused offers no evidence of an innocent intention in his possession, the circumstantial evidence may justify his conviction (see: R v Connors, 2010 BCCA 582 (CanLII)).

Possession of Stolen Property Defences

The availability and strength of any defence depend entirely on the specific facts of your case. However, the following are some common defences that may be used when fighting a possession of stolen property charge:

Claim of right to the property (factual innocence)

Simply put, a claim of right demonstrates on the evidence that you are rightfully and lawfully entitled to be in possession of the property. This would signify that law enforcement or the Crown hold a mistaken belief or are incorrect in their findings that the property you were in possession of is stolen or otherwise linked to the commission of another indictable offence. To rebut any claims of committing a section 354 offence, you would need to put forward evidence which shows that the item(s) was/were not the proceed of a crime (this might include receipts, contracts, oral evidence, witness testimony etc.).

You did not know or did not have reason to know the property was stolen (lack of mens rea)

Another defence to a possession of stolen property charge might be to demonstrate you lacked the requisite knowledge of the item’s character. In other words, you had no reason to believe that the item was stolen or otherwise the proceed of an indictable offence in Canada. For example, a family member or friend asks you to hold onto something and you have no reason to suspect it has been stolen.

Lack of possession

Lack of possession is a defence which rebuts the actual actus reus standard of the offence. In other words, here you would show that the item was never actually in your possession as defined within the Criminal Code. An example of this might be that perhaps you buy a designer bag on an online consumer-consumer marketplace and plan to go pick it up later that day from your neighbour, the seller. You transfer the seller money to secure the purchase, however, later that day a friend informs you that there have been numerous scammers on this online platform selling stolen designer bags to unsuspecting buyers. You call up the seller and let him or her know the sale is off. While you might have had possessory rights to the bag because you made the purchase, you never actually exercised any control over it and therefore you were not in possession.

Colour of right

This defence may arise when you honestly believed you had a lawful right to property when in reality you did not. For example, if you purchased something online with the honest but mistaken belief that the seller was the legal owner, even though she was not. In order to raise this defence, you will need to establish a factual basis to show that you honestly and reasonably believed in this particular state of affairs.

Innocent Possession

This defence may arise when you only had possession of the stolen property in order to return it to the legal owner or provide it to the police. For example, if a parent discovers their child stole a neighbour’s toy and they take the toy to return it. This defence will generally require proof of immediate, positive actions to surrender the property to be successful.

Applicable Charter defences

The Canadian Charter sets out your rights and freedoms before and after your arrest. If the police fail to abide by these rights, either deliberately or inadvertently, it could aid in your defence. If any of your Charter rights have been violated before or after your arrest, you may be able to have some or all of the evidence that the Crown is relying on to secure a conviction excluded under s.24(2) of the Charter.

Possession of Stolen Property Punishment

A charge of possession of stolen property carries no mandatory minimum sentence, however, the maximum sentence is up to 10 years imprisonment. As discussed earlier in this article, possession of stolen property is considered a “hybrid” offence which means that the Crown can elect to proceed with an indictable charge or a summary one. How the Crown may opt to proceed will depend largely on the facts/severity of the case at bar. The maximum punishment for this offence depends on the value of the property in your possession. The Criminal Code benchmarks prospective punishment on whether or not the property in possession is worth less, more or equal to $5000.

If you are found in possession of property valued at more than $5000, you could face up to 10 years of imprisonment. If you are found in possession of property valued at less than $5000, you could face up to maximum 2 years imprisonment. The Crown in either scenario (property valued at more or less than $5000) can choose to proceed with an indictable or summary charge.

Sentences can vary quite drastically in cases of possession of stolen property. Not all convictions of possession of stolen property mean jail time.

Some of the other considerations at sentencing besides or alongside imprisonment might include:

• Fines – if charged by way of indictment, the court can impose any fine it deems fit (see: section 734 of the Criminal Code); if charged summarily, the court may impose a fine up to $5000 (see: section 737 of the Criminal Code). Note that fines can be imposed alongside imprisonment sentences.
• Probation – Where the accused receives not more than two years jail time, the court may impose up to three years of probation (see: sections 731 and 732.2(2) of the Criminal Code).
• Victim Protection – The court in certain cases is entitled to impose communication bans whether that be between the offender and the victim or the offender and witnesses, etc. (see: sections 21, 732.1(3)(a.1), 732.1(3)(h), 742.3(2)(a.3), and 742.3(2)(f) of the Criminal Code).
• Restitution – The court can order restitution for damage to property (see: section 738 of the Criminal Code). Restitution is money paid directly to the victim. Restitution should be preferred by the courts over fines (see: section 740 of the Criminal Code). Note restitution may be ordered alongside a term of imprisonment.
• DNA – If charged as an indictable offence, the court can order that the offender’s DNA samples be stored in the federal DNA databank (see: sections 04 and 487.051(3)). Note the court must provide reasons for this order.
• Victim Surcharge Fine – The court may impose a victim surcharge fine on top of other fines or on its own – the total of this fine can vary and depends on the amount of fines already ordered/whether you were charged summarily or by indictment (see: section 737 of the Criminal Code).

Frequently Asked Questions

Is possession of stolen property a serious offence?

Yes, all offences under the Criminal Code are serious offences and come at the risk of a criminal record. However, the seriousness of a charge of possession of stolen property can vary quite drastically and is based entirely on the facts of each case. A lawyer can analyze your particular situation and determine the best course of action. While a charge of possession of stolen property can carry with it a term of imprisonment this is not always the case and there is no minimum sentence for possession of stolen property charges.

What is possession of property obtained by crime?

Possession of property obtained by crime includes imputing control over instruments, money or goods which are the proceeds of an indictable offence in Canada. This means the instrument, money or good was obtained or procured through the commission of a crime (e.g., theft). You do not have to be the one to have committed the initial crime to be found in possession of stolen property.

Is buying stolen goods illegal in Canada?

Yes, buying stolen goods can be considered a crime in Canada. This depends entirely on whether you knew the items were stolen when you bought them. While it might seem like an easy ruse to just suggest regardless of the fact, that you did not know the items you purchased were stolen, the doctrine of “wilful blindness” can come up against this claim. For example, if you purchase an item at a severely discounted price with knowledge that this item’s typical market value greatly exceeds the price you are purchasing it at and you have reason to believe that the items might be stolen or were procured illegitimately and you do nothing to investigate this suspicion, you could be found guilty of possession of stolen property.

Can you go to jail for possession of stolen property?

Yes, you can go to jail for possession of stolen property. However, there is no minimum sentence for possession of stolen property and not all convictions of possession of stolen property carry with it a term of imprisonment.

Published Decisions

R v Hopkins, 2022 BCCA 182 (CanLII)

The offender was found guilty of possession of stolen property in excess of $5000 and sentenced accordingly to two years less one-day imprisonment. The offender was 53 years old at the time of the offence and had an extensive criminal record including 117 convictions (84 of these were property offences). When arrested for this offence, the offender had many outstanding warrants originating in different provinces.

You can read the full case here.

R v Murphy, 2022 NCSA 26 (CanLII)

The offender was found guilty of multiple charges of possession of stolen property. He was the owner of a local pawn shop and the police found multiple items on the premises which had intact their original sales tags or security tags. The court was satisfied that the Crown proved all elements of possession of stolen property charges for the majority of the counts. The contraband was in excess of $5000.

You can read the full case here.

R v Hinds, 2022 ONCA 257 (CanLII)

The offender pled guilty to possession of stolen property and was sentenced to 18-months imprisonment for possessing a stolen vehicle. At the time of his arrest, he was already in custody for numerous other property-related offences. The offender entered a joint submission with the Crown requesting that his time-served be considered in amending his term of imprisonment.

You can read the full case here.