INTRODUCTION AND BRIEF DESCRIPTION
Section 358 of the Criminal Code of Canada defines when the offence of having possession is complete.
SECTION WORDING
358 For the purposes of sections 342 and 354 and paragraph 356(1)(b), the offence of having in possession is complete when a person has, alone or jointly with another person, possession of or control over anything mentioned in those sections or when he aids in concealing or disposing of it, as the case may be.
EXPLANATION
Section 358 of the Criminal Code of Canada clarifies the offence of "having in possession" in relation to other sections that deal with specific offences such as theft, fraud, and trafficking of stolen goods. This section specifies that the offence is complete when a person has control or possession of anything mentioned in those sections or when they assist in concealing or disposing of such items. This means that a person can be charged with the offence of "having in possession" if they possess anything that is linked to an offence listed in the other sections or if they are found to be involved in disposing or concealing of such items. It is important to note that this section merely specifies the legal definition of the "having in possession" offence and does not outline any punishments or consequences for committing such a crime. In essence, this section is meant to provide clarity and help prevent any confusion or misconceptions about the specific criteria that must be met for an individual to be charged with "having in possession." It is important to understand that the Criminal Code of Canada is a complex legal document that outlines the laws and regulations governing criminal offences in Canada. As such, it is advisable to seek the guidance of a legal professional when dealing with criminal law matters.
COMMENTARY
Section 358 of the Criminal Code of Canada outlines the elements of the offense of having possession of certain items that are mentioned in sections 342 and 354 and paragraph 356(1)(b) of the Code. The section makes it clear that a person can be found guilty of such an offense if they have possession of the item in question or control over it, either alone or in conjunction with another person. Furthermore, the section specifies that a person can be guilty of this offense if they aid in concealing or disposing of the item. This means that even if a person does not directly possess or control the item themselves, they can still be found guilty if they assist in hiding it or getting rid of it in some way. There are several implications of Section 358 of the Criminal Code. First and foremost, it underscores the importance of accountability in cases where illegal items are involved. The fact that a person can be found guilty even if they do not directly possess or control the item in question makes it clear that individuals who assist in the commission of a crime must also be held responsible for their actions. Additionally, the section emphasizes the seriousness of offenses related to possession of certain items. The fact that such offenses are considered complete even if the item is not directly in the possession of the offender highlights the potential danger and harm that can result from the possession or control of these items. Overall, Section 358 plays an important role in the Canadian criminal justice system by delineating the circumstances under which an individual can be found guilty of having possession of certain items. By outlining the various factors that can contribute to an offense of this nature, the section provides a clear framework for addressing instances where illegal items are involved in criminal activity.
STRATEGY
Section 358 of the Criminal Code of Canada is an important provision that deals with the offence of having possession of or control over certain items that are mentioned in sections 342 and 354, or aiding in their concealment or disposal. As such, there are several strategic considerations that should be kept in mind when dealing with this section of the Criminal Code, including the following: 1. Interpretation of the offence: One key strategic consideration is how the offence of having possession of or control over something is interpreted in practice. Depending on the circumstances, it may be difficult to prove that a person had actual possession or control over the item in question. For example, if the item was found in a common area or shared space, it may be difficult to establish who had actual possession or control over it. As such, a defence strategy may involve highlighting these issues to cast doubt on the prosecution's case. 2. Defences: There are several defences that may be available to a person charged with an offence under this section, including lack of knowledge, lack of intent, and lawful excuse. Depending on the circumstances, one or more of these defences may apply. For example, if a person was merely holding an item for a friend or family member and had no knowledge that it was illegal, they may be able to use a lack of knowledge defence. 3. Disclosure: In order to mount an effective defence, it is important to ensure that all relevant evidence is disclosed by the prosecution. This may include information about how the item in question was found, who was present at the time, and any other relevant details. Reviewing disclosure carefully can help to identify weaknesses in the prosecution's case and inform a defence strategy. 4. Plea bargaining: Depending on the strength of the prosecution's case and the circumstances of the offence, it may be possible to negotiate a plea bargain with the Crown. This could involve agreeing to plead guilty to a lesser offence or accepting a reduced sentence in exchange for cooperation or other concessions. An experienced criminal defence lawyer can advise on the pros and cons of plea bargaining and help to negotiate a favourable outcome. 5. Sentencing considerations: If a person is convicted of an offence under this section, there are several factors that may be taken into account at sentencing. These may include the nature and severity of the offence, the individual's criminal record, and any mitigating or aggravating factors. A strategic approach to sentencing may involve highlighting factors that favour a more lenient sentence, such as good character, remorse, or efforts at rehabilitation. In summary, section 358 of the Criminal Code of Canada is a complex provision that requires careful consideration when developing a defence strategy. By keeping these strategic considerations in mind and working closely with an experienced criminal defence lawyer, individuals charged with this offence can increase their chances of a favourable outcome.