Is Proof of Possession and Control of Stolen Property Beyond Mere Contact With Stolen Property Required to Prove a Theft Case?
In a Theft Case the Crown Is Required to Present Evidence That the Accused Had Knowing Possession and Control of the Stolen Property Rather Than Mere Contact or Connection With the Stolen Property.
Understanding the Evidentiary Requirement That the Crown Must Prove Actual Possession of Property Within a Theft Case
For a finding of guilt in a matter involving a person accused of theft as per section 322 of the Criminal Code of Canada, R.S.C. 1985, c. C-46, the Crown must prove that the person accused was at some point in possession and control of the stolen property. Proof that the accused had circumstantial contact with, or connection to, the stolen property is insufficient.
322 (1) Every one commits theft who fraudulently and without colour of right takes, or fraudulently and without colour of right converts to his use or to the use of another person, anything, whether animate or inanimate, with intent
(a) to deprive, temporarily or absolutely, the owner of it, or a person who has a special property or interest in it, of the thing or of his property or interest in it;
(b) to pledge it or deposit it as security;
(c) to part with it under a condition with respect to its return that the person who parts with it may be unable to perform; or
(d) to deal with it in such a manner that it cannot be restored in the condition in which it was at the time it was taken or converted.
Accordingly, when a person is charged with theft, per section 322 of the Criminal Code, the prosecuting Crown must prove, beyond a reasonable doubt, the elements as described. Among the elements is the word "takes" which involves a measure of possession and control over the property involved in the theft. What constitutes as "possession" is defined at section 4(3) of the Criminal Code which states:
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.
In a theft case, where the Crown may be without a witness to the actual theft taking place, proof of the theft may involve the collective of circumstantial evidence that provides enough proof of involvement as necessary to enable common sense inferences to prevail and thereby rise to the level of proof beyond a reasonable doubt. However, circumstantial evidence of contact with, and even a connection to, the property involved in the theft is insufficient to prove actual involvement, or complicit involvement, in the theft. Accordingly, the Crown is required to prove more than just a contact with, or connection to, the property. The Crown must prove that the accused person took wrongful possession and control of the stolen property. This evidentiary requirement was stated in the case of R. v. Phillips, 2020 ONCA 323 where it was said:
 There is nothing to connect the appellant to the break-in or the thefts, except for his alleged possession of the stolen vehicle shortly after the break-in and thefts occurred. The reasonableness of the three convictions turns on whether the circumstantial evidence was reasonably capable of supporting the inference the appellant was not only in the Anthony vehicle when it travelled to Kingston, but was also in possession of that vehicle. Possession requires proof of some element of control over the thing said to be possessed: R. v. Pham (2005), 2005 CanLII 44671 (ON CA), 203 C.C.C. (3d) 326, at para. 16 (Ont. C.A.), aff’d, 2006 SCC 26 (CanLII),  1 S.C.R. 940; R. v. Terrence, 1983 CanLII 51 (SCC),  1 S.C.R. 357. Absent a finding the appellant was in possession of the truck, the further inferences he was the person who broke into the Anthony home and stole the purse and keys was not reasonably available.
As stated in the Phillips case above, more than just proof that Phillips was in a stolen vehicle was required to prove that Phillips was the person, or one of the persons, who took unlawful possession and control of the stolen vehicle. The case of R. v. Pham, 2005 CanLII 44671, which was also a Court of Appeal case, and as was cited within the Phillips case, very clearly stated the requirement for proof of possession and control beyond mere contact with, or connection to, the stolen property. Specifically, the Pham case said:
 In order to constitute constructive possession, which is sometimes referred to as attributed possession, there must be knowledge which extends beyond mere quiescent knowledge and discloses some measure of control over the item to be possessed. See R. v. Caldwell (1972), 1972 ALTASCAD 33 (CanLII), 7 C.C.C. (2d) 285,  5 W.W.R. 150 (Alta. S.C. (A.D.)); R. v. Grey (1996), 1996 CanLII 35 (ON CA), 28 O.R. (3d) 417,  O.J. No. 1106 (C.A.).
 In order to constitute joint possession pursuant to s. 4(3)(b) of the Code there must be knowledge, consent, and a measure of control on the part of the person deemed to be in possession. See R. v. Terrence, 1983 CanLII 51 (SCC),  1 S.C.R. 357, 147 D.L.R. (3d) 724; R. v. Williams (1998), 1998 CanLII 2557 (ON CA), 40 O.R. (3d) 301,  O.J. No. 2246 (C.A.); R. v. Barreau, 1991 CanLII 241 (BC CA),  B.C.J. No. 3878, 19 W.A.C. 290 (C.A.); and R. v. Chambers, 1985 CanLII 169 (ON CA),  O.J. No. 143, 20 C.C.C. (3d) 440 (C.A.).
In a theft case, where it is proven that the accused had contact or connection with the stolen property, it is insufficient to prove merely the contact or connection; and accordingly, it is necessary for the Crown to prove that the person accused of the theft actually took unlawful possession and control of the stolen property or was in some other way complicit with the theft such as knowingly assisting another person who took unlawful possession and control of the stolen property.