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Criminal - Constructive Possession. R. v. Gurhan
In R. v. Gurhan (Ont CA, 2026) the Ontario Court of Appeal considers the criminal law concept of 'constructive possession':[29] Constructive possession is established where an accused does not have physical custody of an item but has it in any place for their own or another person’s use or benefit: Lights, at para. 47; Criminal Code, s. 4(3)(a)(ii). To find that a person was in constructive possession of an item, the court must be satisfied that the person: (a) has knowledge of the character of the thing; (b) knowingly puts or keeps the thing in a particular place, irrespective of whether the place belongs to or is occupied by the person; and (c) intends to have the thing in the place for the person’s use or benefit or for another person’s use or benefit: Lights, at para. 47; R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253, at para. 17. Knowledge and control are essential elements of both personal and constructive possession: Morelli, at para. 15; Lights, at para. 44. . R. v. Yousuf
In R. v. Yousuf (Ont CA, 2025) the Ontario Court of Appeal considers 'constructive possession', here in a drug case context:[8] The trial judge correctly stated the law relating to possession, including reciting the test for constructive possession from R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253, at para. 17, as follows:Constructive possession is established where the accused did not have physical custody of the object in question, but did have it “in the actual possession or custody of another person” or “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”. Constructive possession is thus complete where the accused: (1) has knowledge of the character of the object, (2) knowingly puts or keeps the object in a particular place, whether or not that place belongs to him, and (3) intends to have the object in the particular place for his “use or benefit” or that of another person. [Citations omitted.] [9] There is no dispute that the trial judge also correctly noted that tenancy or occupation of the place where contraband is found does “not create a presumption of possession”: R. v. Choudhury, 2021 ONCA 560, at para. 19.
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