Possession of Stolen Property

>>Possession of Stolen Property
Possession of Stolen Property 2020-09-25T20:33:41+00:00

Your Guide to Possession of Stolen Property Charges by Criminal Lawyers in Kelowna

What is Possession of Stolen Property?

Possession of stolen property is a charge that results from having property knowingly obtained through crime in your control. It is not relevant whether you were the one who stole the property, but simply whether it is in your possession and you knew it was stolen.

Section 354 of the Criminal Code of Canada states the offence of possession of stolen property as follows:

Possession of Stolen Property Kelowna

According to the Criminal Code, a person can have something in their possession in three different ways:

  1. Personal possession: the object is actually in their physical custody with knowledge of what the item is (e.g. in a pocket or backpack);
  2. Constructive possession: the object is not in the physical custody of the person, but is in a place under their control, kept for their benefit (e.g. in their closet at home or in a safety deposit box); or
  3. Joint possession: the object is in the physical custody of another person, with each person having control over it (e.g. held by a friend or family member).

Punishment for possession of stolen property is generally divided into two categories:

  1. The property is valued at more than $5,000,
  2. The property is valued at less than $5,000.

In order to be found guilty of possessing stolen property in Canada, the Crown Prosecutor is required to prove each of the following elements beyond a reasonable doubt:

  • You were in possession of the property,
  • The property you possessed was obtained through crime,
  • You knew you were in possession of the property,
  • You knew the property was obtained through crime, and
  • The approximate value of the property.

Many people will insist that they did not know they had the property, or know that it was stolen. However, if the Court determines that you ought to have known or ought to have investigated further, you may still be convicted. For example, if you purchased goods that appear stolen but chose not to ask in order to deny knowledge if caught, that may be sufficient enough to support a conviction.

Investigation of Possession of Stolen Property Charges in Kelowna

An investigation of an allegation of possession of stolen property in Kelowna is typically initiated by a complaint from a witness to the alleged stolen property. This witness may be the alleged victim, who claims that their personal property was taken without their consent, or it may be someone who claims to have witnessed the property enter your possession. The police will attend the scene and request a written statement from the alleged victim or any other witnesses, then launch an investigation. If the police search you for a different reason, but discover allegedly stolen property during the search, they may begin a new investigation relating specifically to the property.

After the police have gathered their evidence, they will arrest you if they believe you are the perpetrator. If you are not present at the scene, police will track you down or issue a warrant for your arrest.

After you have been charged, police will provide a package with all the evidence they collected, known as the “disclosure package,” to the Crown Prosecutor. You will have the right to access this disclosure package to see the evidence against you. Once you retain one of our lawyers, we will assist you in obtaining the disclosure package, and we will review it with you to assess the strengths and weaknesses of the Crown’s case, as well as any legal defences that may be available to you.

Bail Process and Conditions for Possession of Stolen Property Charges in Kelowna

How do I get myself or a loved one out on bail for possession of stolen property charges in Kelowna?

If you have been charged with possession of stolen property, it is not uncommon for police to release you at the scene on a release order. Police will provide you with a Promise to Appear document outlining your charges, and any required appearances you must make. This document may also include conditions that you are required to follow while on release.

However, a formal bail hearing may be required to secure your release, particularly if you have a criminal record, or if the allegations are more serious.

The bail hearing must be held within 24 hours, a period that starts from the moment of arrest or detention rather than the time when you are brought to the district office or Courthouse.

On a weekday, you will be transferred from the district office to the Kelowna Courthouse for your bail hearing. The address of the Courthouse is as follows:

Kelowna Courthouse
1355 Water Street
Kelowna BC V1Y 9R3
(250) 470-6900

If you are arrested after approximately 3 p.m., you will be held at the detachment until the following morning, at which time you will be transported to the Courthouse for your bail hearing. Your hearing will be conducted in front of a Provincial Court Judge.

If you are arrested on Friday after approximately 3 p.m., or if you are arrested on a weekend, your bail hearing will be conducted at the detachment via telephone with a Justice of the Peace from the Justice Centre.

Loved ones are not able to contact you while you are detained. The police will not release any information to friends or family due to privacy laws. Your lawyer is the only person allowed to contact you. Once the police have verified your lawyer’s details, they will pass on information about your whereabouts, if requested.

Because of these difficulties, while you are held in custody, it is best to appoint a competent defence lawyer as soon as possible to manage the legal processes and communicate with loved ones. After an arrest, the police must provide you with the opportunity to call a lawyer in private and, if that happens, stop questioning you.

Once you retain one of our experienced criminal defence lawyers, we will begin working to secure your release on bail. We will immediately do the following:

  1. Call in to the district office where you are being held, or the Kelowna Courthouse if you have been transported, and speak to you.
  2. Contact the Prosecutor assigned to the bail hearing to start negotiating your release.
  3. Order and secure a copy of the police information package that details the allegations against you in advance of the bail hearing. This allows the lawyer to make meaningful representations to the Court about why you should be released on bail.
  4. Conduct either an in-person or teleconference bail hearing to secure your release.

When you attend your bail hearing, the Judge will consider the following factors:

  • Is detention necessary to secure your attendance in court?
  • Is detention necessary to protect the public from a substantial risk of re-offence?
  • Is detention necessary in all the circumstances to maintain confidence in the administration of justice?

Although it is unlikely that you will be denied bail for this type of charge, tight restrictions may nevertheless be applied to your release.

Rest assured, we will work to not only secure your release but also to ensure the least restrictive set of bail conditions (including the minimum cash deposit).

In order for our lawyers to secure less stringent conditions, the Judge will need to be satisfied that you will attend court as required and that you pose no significant risk of harm to the public. This may sometimes be difficult as the Judge may be hesitant to release you due to concerns with your willingness to obey release conditions, but it is not impossible.

Our lawyers are often successful at persuading the Crown Prosecutor in charge of bail to let our clients out. If we can’t convince the Prosecutor, we can conduct a formal bail hearing and work to convince the Court. Even if you are ultimately detained, we can appeal that decision on very short notice through a bail review, which is conducted at the Supreme Court of British Columbia.

Where can I pay for bail for possession of stolen property charges in Kelowna?

If you or a loved one are charged with possession of stolen property in Kelowna and granted bail, you may be required to provide a cash deposit to secure release. You can pay bail at any court registry (courthouse) in British Columbia. If you live in Vancouver, you can pay bail there for someone detained in Kelowna.

The Kelowna court registry is open from 8:30 – 4:30, Monday to Friday. The contact details of the registry office at the Kelowna Courthouse are as follows:

Kelowna Courthouse
1355 Water Street
Kelowna BC V1Y 9R3
(250) 470-6900

To pay your own bail, you can make a payment after your hearing, assuming you have sufficient funds with you to do so.

How do I change my release conditions for possession of stolen property charges in Kelowna?

Release on bail for possession of stolen property charges may include restrictions that impact your day-to-day life. This could include conditions to refrain from:

  • Staying out beyond a certain time (i.e. curfew),
  • Breaking any laws,
  • Using drugs or alcohol,
  • Possessing weapons,
  • Leaving your house (i.e. house arrest),
  • Visiting certain places, and/or
  • Travelling.

The Judge may also impose some additional conditions such as:

  • Residing where approved,
  • Reporting to probation,
  • Attending counselling, and/or
  • Maintaining or seeking employment.

A variety of factors will be considered when determining your precise restrictions, including:

  • Your criminal history,
  • Your physical and mental condition,
  • The nature of the alleged possession,
  • The likelihood that you will flee,
  • Your history of drug/alcohol usage,
  • Whether you have stable employment,
  • Whether you have stable living arrangements, and
  • Whether you have ties to the community.

If you have already been released, at least for the short term, it is critical that you make arrangements to abide by your conditions until they can be changed. Breaching the terms of your release can result in further charges or a revocation of your bail, as well as a forfeiture of any cash paid to secure your release. It is important to take these conditions seriously.

Once the matter is in court, we can work with the Crown Prosecutor to alter your conditions. This includes either adding exceptions to some of the conditions or eliminating them altogether.

If your court date is far away and you cannot wait until then, we can arrange to have the matter dealt with sooner. Our first priority is always to stabilize your release conditions. That way, you will not feel pressured to plead guilty because of the restrictive terms of your release. Once the conditions are manageable and minimally intrusive to your daily routine, we can focus 100% of our attention on defending the case.

Penalties for Possession of Stolen Property Charges in Kelowna

Since the penalty for possession of stolen property depends on the value of the property, a wide array of potential sentences may result if you are found guilty. The potential penalties can range anywhere from a discharge (i.e. a finding of guilt, but no criminal conviction), to a fine and/or probation, to a period of jail time.

The Criminal Code outlines the maximum allowable punishment for possession of stolen property as follows:

  • For property valued over $5,000 or a testamentary instrument: Not more than 10 years of jail time.
  • For property valued under $5,000: Not more than 2 years of jail time.

The potential sentences available to you will depend on a variety of factors, including the amount of property, any relationship between you and any alleged victim, your criminal history, and other applicable personal factors.

While a number of factors could increase the likelihood of jail time, some of the most significant factors are:

  • Whether the property value was over $5,000;
  • Whether the property was brought into Canada from another country; and
  • Whether the offence involved communication with a criminal organization.

In addition to the penalties above, a conviction for possession of stolen property, even of a small amount, can have wide-ranging negative consequences on your future. Possession of stolen property is considered a “crime of dishonesty” and a conviction will therefore affect your reputation in your community. Potential employers may refuse or terminate your employment if their business involves handling money or the use of valuable property. Your friends, family and peers may view you as unworthy of their trust.

Therefore, even if you intend on accepting responsibility for this type of offence, it is worthwhile to explore your options and consider all the possible penalties. Often, good representation can result in no criminal record. Furthermore, a community-based sentence may be obtained even where the Crown is seeking jail time.

Rest assured, our lawyers will work hard to defend you so that you are not saddled with the consequences that stem from a criminal conviction for possession of stolen property. In fact, we can canvass a range of sentencing options with the Prosecutors that will either leave you with no criminal record or impose minimal restrictions on your liberty after sentencing. To learn more about potential non-criminal resolutions, please visit our Resolutions page, or read our FAQ on resolutions and other sentencing options.

Possession of Stolen Property Kelowna

Defending Possession of Stolen Property Charges in Kelowna

What are the best defences to possession of stolen property charges in Kelowna?

With possession of stolen property charges, the defences that may be available to you depend on the facts of your case. In general, the best defences are:

  • Factual Innocence: This is usually the strongest defence because the facts and the evidence do not support you being there, possessing the property, or other basic elements of the offence. This could include:

No mental intent: A common defence available in possession of stolen property cases is that you did not intend to possess the property. A basic example would be if you were holding something for a friend or family member with no reason to suspect it was stolen.

You owned the property: Property cannot be stolen if it is legally yours. Therefore, if you are able to establish that you had a proprietary or possessory interest in the item, you may be able to defend yourself against the charges. Documents proving ownership of the property will likely be of significant assistance in raising this defence. However, even if you have a proprietary or possessory right in the good, if you take it from another person by fraudulent means, you could still be charged with possession of stolen property in certain circumstances. For example, you could not use the proprietary interest you have in your vehicle to retake it from an impound lot without paying the fee.

Identity: In some circumstances where the offence was not recorded by surveillance footage, or the footage is poor quality, you may be able to raise an identity defence. For example, authorities could have made a mistake in identifying you as the perpetrator based on the poor quality of the footage. In order to effectively raise this defence, you may need corroborative evidence, such as an alibi to where you were at the time of the offence.

  • Violation of Constitutional Rights: The Canadian Charter of Rights and Freedoms sets out your rights before and after your arrest. If the police fail to abide by these rights, it could aid in your defence.
  • “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 in order to be successful.

The Crown is required to prove that you not only had property obtained through crime in your control, but that you knew you did. While the Crown must prove that you committed the offence beyond a reasonable doubt, you may bear some responsibility in raising certain defences at trial.

The availability and strength of any defence depends entirely on the specific facts of your case. Our lawyers have significant experience assessing the availability and strengths of potential defences in possession of stolen property cases, as well as presenting any and all available defences to the Court at trial. Even if you believe that you will be found guilty, it is important that you obtain a legal opinion about the defences that may be available to you.

How can I help defend possession of stolen property charges in Kelowna?

If you have been charged with possession of stolen property in Kelowna, the following can help your lawyer build a strong defence:

  • Provide your lawyer with a statement about what happened;
  • Collect and maintain all documents and records about the event;
  • Gather a list of witnesses that may support your version of events; and
  • Log any relevant texts, emails, phone calls or photographic evidence.

What information is relevant will depend on the facts in your case. As soon as you are released on bail, you should start to gather any information that may be of use to your lawyer. If you are uncertain what information may be relevant, you should contact one of our lawyers immediately to create a plan of action for gathering information.

If you are truly proactive about the matter, consider doing the following:

  • Secure proof of employment;
  • Secure reference letters;
  • Enroll in counselling (anger management/substance abuse/parenting);
  • Secure a record of prescriptions; and
  • Secure a record of any mental health conditions you suffer from.

These steps can be very helpful for building an effective defence (or convincing the Prosecutor to drop the charges altogether).

What can a lawyer do to help me defend against possession of stolen property charges in Kelowna?

As we start preparing your defence by examining police actions and the evidence against you, there are certain defence strategies that can be used to aid your cause, including:

  • Assembling documents, photographs, texts, etc. that contradict the allegation and support your defence;
  • Gathering evidence from witnesses that support your version of events;
  • Identifying mistakes in the actions of the police, such as Charter breaches;
  • Uncovering administrative/systemic errors, such as “Jordan delay,” non-disclosure, lost or destroyed evidence, etc.; and
  • Finding weaknesses or “holes” in the Crown’s case that may make it difficult or Impossible for them to establish the elements of the offence.

Further Reading

Below are a few notable cases dealing with various aspects of possession of stolen property charges:

In R v Terrence, [1983] 1 SCR 357 and in R v Kowlyk, [1988] 2 SCR 59 the Supreme Court of Canada described the doctrine of recent possession, which in some cases may satisfy the knowledge element of the possession of stolen property offence, and/or link the accused to the stand alone offence of theft. Where the Crown can establish that the accused person was found in possession of an item that was recently stolen, the court may be permitted to infer that the accused knew that the item in question was stolen, and in some cases, to infer that the accused was involved in the underlying theft of the item.

In R v Belanger, 6 CCC (2d) 210 the British Columbia Court of Appeal considered the question of how the value of stolen property is to be assessed for the purpose of considering an appropriate sentence. The Court determined that the value of property is presumed to be the retail value of the items as assessed at the time of sentencing.

In R v Terrence, [1980] OJ No 1371 the Ontario Court of Appeal considered the degree of control required to prove possession of a stolen vehicle. It was determined that merely being found within a stolen vehicle, without more, is not sufficient to establish the degree of control over the stolen item to satisfy the requirement of the essential elements of the offence.

What’s Next?

Most of the information above relates to simple possession of stolen property cases, which can still be complex and fact-specific.

We have tried our best to provide a general outline of what you can expect if you find yourself in this situation, but this is just the tip of the iceberg.

To learn more about how we can help, please contact our team of Possession of Stolen Property Lawyers. We will conduct a thorough review of your situation and tailor a precise strategy that targets your successful defence.

Possession of Stolen Property FAQs

  1. What is possession of stolen property?
  2. What are the best defences to a charge for possession of stolen property?
  3. How can I get my possession of stolen property charges dropped?

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