Control

Constructive Possession

R. v. Nixon, 2007 CanLII 5530 (ON SC)

i. “Control” for the purposes of constructive possession

[8] With respect to the first issue, the judge held as follows:

Without any identification, however, without a suitably matching signature and without the key, [the bank supervisor] would not have permitted Mr. Evans [sic] to go to the box. In fact, without the key, it would have been impossible for him to open the box, that is, to exercise control over it; and without identification or matching signature, the bank employees would not have permitted him to gain any other kind of control or possession over the box or its contents.

Later in her ruling, the judge considered the definition of “control” for the purposes of constructive possession as set out in R. v. Savory (1996), 1996 CanLII 2001 (ON CA), 94 O.A.C. 318 (C.A.). In Savory, the Court of Appeal held as follows at paras. 7-8:

Control for the purpose of constructive possession does not require that the accused did in fact exercise control over the object in question. In R. v. Terrence (1980), 1980 CanLII 74 (ON CA), 55 C.C.C. (2d) 183 (Ont. C.A.), aff’d (1983), 1983 CanLII 51 (SCC), 4 C.C.C. (3d) 193 (S.C.C.), the Supreme Court accepted that control means power or authority over the object in question. Similarly, in R. v. Chambers (1985), 1985 CanLII 169 (ON CA), 20 C.C.C. (3d) 440 (Ont. C.A.), the court held that the right to grant or withhold consent to drugs being stored in a bedroom was sufficient to constitute control. Again, control is established if there is the right to grant or withhold consent. It is not necessary that the consent in fact be granted or withheld.

The trial judge’s recharge on control was consistent with the above authority. She correctly asked the jury to determine whether the appellant was able to exercise a directing, guiding or restraining power over the drugs. It was not necessary for the jury to find that the appellant did in fact exercise a directing, guiding or restraining power over the drugs.

After considering this definition, the judge continued as follows:

The test for constructive possession can thus be expressed as the ability to “exercise a directing, guiding or restraining power over the drugs”. In this case, Mr. Nixon was arrested prior to the bank officials satisfying themselves that he was in fact the person entitled to exercise control over the safety deposit box…No key whatsoever was found in his possession at the bank. Without the key, and assuming for the sake of argument that he was able to satisfy the bank people that he was the person entitled to access the box in question, he would in fact not have had the ability to access the box. [Emphasis added]

a) The Test for “control”

[9] By requiring evidence that Mr. Nixon had the actual ability to gain access to the box on the date of his arrest, the preliminary inquiry judge has misapplied the test for “control”. In my opinion, the phrase “was able to exercise a directing, guiding or restraining power over the drugs” [emphasis added] at para. 8 of Savory should not be strictly interpreted to mean that constructive possession requires the practical ability to gain access to an item. Rather, the right to control an item, independent of the practical ability to do so, is sufficient. Note that at para. 7 of Savory, the court found that “control is established if there is the right to grant or withhold consent.” [Emphasis added]

[10] Similarly, Allen J.A. of the Alberta Supreme Court (Appeal Division) held as follows in R. v. Caldwell (1972), 1972 ALTASCAD 33 (CanLII), 7 C.C.C. (2d) 285, (1972) 5 W.W.R. 150 (cited to C.C.C.) at 290-91:

[W]hile possession under the definition prescribed by the Criminal Code is a matter to be determined on the facts of each case, when the goods in question are not in the physical possession of an accused, in order to constitute constructive possession it must extend beyond quiescent knowledge and disclose some measure of control or right of control over the goods. See Bird J.A., in R. v. Bunyon (1954), 1954 CanLII 423 (BC CA), 110 C.C.C. 119 at p. 123; Cartwright J. (as he then was) in Beaver v. The Queen (1957 CanLII 14 (SCC), 118 C.C.C. 129) at p. 140; O’Halloran J.A. in R. v. Colvin and Gladue (1942), 1942 CanLII 245 (BC CA), 78 C.C.C. 282, (1943) 1 D.L.R. 20, (1942) 3 W.W.R. 465; and Roach J.A. in R. v. Lou Hay Hung (1946), 1946 CanLII 118 (ON CA), 85 C.C.C. 308, (1946) 3 D.L.R. 111, (1946) O.R. 187. [Emphasis added]

[11] This conclusion was adopted by the B.C. Court of Appeal in R. v. Smith (1973), 1973 CanLII 1546 (BC CA), 10 C.C.C. (2d) 384, and was recently affirmed by that court in R. v. Fisher (2005), 2005 BCCA 444 (CanLII), 200 C.C.C. (3d) 338 (B.C.C.A.).

[12] Caldwell makes it clear that constructive possession can be established where there is either a “measure of control or right of control”, and therefore that constructive possession does not require the practical ability to control an item at any given time.

[13] This conclusion accords with common sense: if a person could not be held to possess an item unless she had the practical ability to gain access to it, then a person who had (for example) lost her car keys would be said not to possess her car or its contents until the keys were found. Likewise, anyone who was locked out of his house would be said not to possess its contents. By contrast, if constructive possession includes either the actual ability to gain access or the right to do so, possession would continue uninterrupted in both cases.

[14] “Control” therefore does not require proof that Mr. Nixon had the practical ability to gain access to the contents of the box on the date of his arrest – rather, it is sufficient for the Crown to show that he had the right to control the contents of the box on September 2, the date on which he is charged with having possessed the items.