INTRODUCTION AND BRIEF DESCRIPTION
This section defines possession of an object as having it in personal possession or knowingly having it in the possession or custody of another person or in any place for the use or benefit of oneself or another. Additionally, it states that if one person has possession with the knowledge and consent of others, it is considered possession for all of them.
SECTION WORDING
4.(3) For the purposes of this Act, (a) a person has anything in possession when he has it in his personal possession or knowingly (i) has it in the actual possession or custody of another person, or (ii) has it in any place, whether or not that place belongs to or is occupied by him, for the use or benefit of himself or of another person; and (b) where one of two or more persons, with the knowledge and consent of the rest, has anything in his custody or possession, it shall be deemed to be in the custody and possession of each and all of them.
EXPLANATION
Section 4(3) of the Criminal Code of Canada is part of the provisions that defines the concept of possession. The section outlines the ways in which a person can be said to be in possession of something, which is a crucial element in the commission of many criminal offenses. In essence, possession is broadly defined as having control or dominion over an object, whether in one's personal possession or through the actions of another person. The opening paragraph of section 4(3) establishes the basic requirements for possession to exist under the Criminal Code. Firstly, a person must have the object in his or her personal possession, meaning the item is physically on their person or within their immediate control. Secondly, a person can be deemed to have possession even if the object is not in their direct physical control, but is knowingly in the actual possession or custody of another person. For example, if two individuals are arrested in a car and drugs are found in the trunk, both individuals may be charged with drug possession if they are aware of the drugs' presence in the trunk. The second part of section 4(3) of the Criminal Code of Canada outlines how possession can be established when multiple individuals are involved. It establishes that if two or more people are in possession of an object, and each has knowledge and consent, then it is deemed to be in the possession of all of them. This aspect of the section is particularly relevant in drug trafficking and other organized crime investigations, where multiple individuals may be involved in the possession of illegal substances or other items. In conclusion, section 4(3) of the Criminal Code of Canada helps to clarify the concept of possession in criminal law. It provides a broad and inclusive definition of possession, encompassing both actual physical control of an object and knowledge of the object's existence and control by another party. This provision is crucial in prosecuting individuals who engage in criminal activities ranging from drug trafficking and firearms offenses to theft and fraud.
COMMENTARY
Section 4(3) of the Criminal Code of Canada is a crucial provision for understanding the concept of possession in criminal law. The section outlines the various ways in which possession of something can arise, and also provides for joint possession. The first part of the provision states that a person can be said to have possession of something if they have it in their personal possession or knowingly have it under the actual possession or custody of another person. This means that a person can be found in possession of something even if they do not have physical control over it. For instance, if a person asks their friend to hold onto a bag of drugs for them, they can be said to be in possession of the drugs even though they are not physically holding them. The provision further states that possession can also be established if a person has something in any place for their own benefit or that of another person, regardless of whether that place belongs to them or is occupied by them. This provision is particularly relevant in cases where drugs or other illegal items are found in a person's house or car. The fact that the items are not physically on the person does not necessarily mean they are not in possession of them. The second part of the provision deals with joint possession. This arises when two or more people have something in their custody or possession, with the knowledge and consent of the rest. In this case, the item is deemed to be in the possession of all of them. Joint possession is often established in cases where drugs or other illegal items are found in a shared space such as a car or a house. The importance of section 4(3) cannot be overstated in criminal law. The concept of possession is central to many criminal offences such as drug trafficking, robbery, and possession of stolen property. Understanding the various forms of possession and how they can be established is essential in determining guilt or innocence in such cases. Furthermore, the provision also highlights the importance of knowledge and consent in establishing possession. A person cannot be said to be in possession of something if they did not know it was there or did not consent to it being there. This means that the prosecution must prove beyond a reasonable doubt that the accused had knowledge and consent before a conviction can be secured. In conclusion, section 4(3) of the Criminal Code of Canada outlines the various forms of possession and provides for joint possession in criminal law. Understanding this provision is crucial in determining guilt or innocence in cases where possession is an element of the offence.
STRATEGY
Section 4(3) of the Criminal Code of Canada is an important provision that defines possession under the Act. In order to establish possession of an item, the Crown must prove that the accused had either actual possession of the item or constructive possession. This provision also extends the concept of possession to anyone who knowingly has an item in their possession, whether it belongs to them or not. Therefore, strategic considerations must be taken into account when dealing with this section. One important strategic consideration that must be taken into account is to analyze the facts of the case in detail to determine the extent of the accused’s possession. For instance, if the accused was found with illegal drugs in his or her pocket, it would be considered actual possession. However, if the accused was found to be living in a house with illegal drugs in the closet, it would be considered constructive possession. Hence, analyzing the extent of the accused’s possession becomes crucial in determining the charges they should face. Another important strategic consideration is the burden of proof. The Crown must prove beyond a reasonable doubt that the accused had possession of the item in question. Hence, it becomes the responsibility of the defense counsel to challenge the Crown’s evidence and expose any weaknesses in their case. For example, if the Crown argues that the accused had possession of the illegal drugs, the defense counsel might argue that the accused did not know the drugs were there. The burden of proof lies with the Crown to refute this argument. A common strategy employed by defense lawyers dealing with this section of the Criminal Code is to attack the concept of knowledge. The accused’s knowledge regarding the item in question is crucial to establishing possession, and the defense may challenge the Crown’s proof of the accused’s knowledge. This strategy could involve arguing that the accused did not know the item was there, or that the accused did not know the nature of the item. Another strategic consideration is the role of consent. When two or more people are in possession of an item, it may be presumed that all parties had possession. Therefore, the accused may argue that they did not have possession of the item, and they only had it because the rest of the group allowed them to. This would shift the responsibility of the possession onto the other parties involved. In conclusion, Section 4(3) of the Criminal Code of Canada is an important provision that defines possession under the Act. It is important to take strategic considerations into account when dealing with this section, such as analyzing the extent of possession, burden of proof, knowledge, and consent. By taking these considerations into account, defense lawyers can develop effective strategies when dealing with possession charges.