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CRIMINAL CODE OFFENCES - Offences against rights of property - Theft and offences resembling theft - Doctrine of recent possession

Thursday, November 16, 2017 @ 8:34 AM  

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Appeal by the accused, Farnsworth, from a conviction for possession of a vehicle obtained by fraud. An agreed statement of facts included an admission by the accused that police found him in possession of a vehicle and its keys, and that the vehicle had been fraudulently acquired from a rental car agency by a third party. The accused was convicted by a judge sitting alone. The trial judge found that the accused was in recent possession of the fraudulently obtained vehicle, and inferred from that fact that the accused either knew the vehicle was stolen, or that he possessed it without the owner’s consent. The accused appealed on the basis the trial judge misapplied the doctrine of recent possession and thus rendered an unreasonable verdict.

HELD: Appeal allowed. The inference the trial judge applied was contingent upon finding beyond a reasonable doubt that the accused's possession was recent relative to the fraudulent acquisition. Such finding required establishing factors such as the vehicle's rarity, the readiness with which it could be and likely was transferred, and the ease which it could be identified. Here, there was no evidence on how or from whom the accused obtained the vehicle. Nor was there evidence about the care ordinarily taken by owners or renters of vehicles from which the trial judge inferred it would be difficult to easily transfer possession of a vehicle notwithstanding that keys were easily handed off from one person to another. The trial judge's speculation went beyond the framework of the agreed statement of facts. A new trial was ordered.

R. v. Farnsworth, [2017] A.J. No. 1132, Alberta Court of Appeal, M.B. Bielby, T.W. Wakeling and M.G. Crighton JJ.A., October 31, 2017. Digest No. TLD-November132017007