Possession of Property Obtained by Crime Lawyer

Possession of property obtained by crime charges have become increasingly common in Toronto and throughout the GTA. This is especially true with the rise in break-ins, home invasions, and car thefts. In addition to being charged with breaking and entering, car theft, drug trafficking, or robbery, accused individuals are also often charged with possession of property obtained by crime. Those found to have been involved in sophisticated trafficking, theft or fraud rings face severe penalties upon conviction, often facing significant periods of custody.

What is the Offence of Possession of Property Obtained by Crime?

The offence of possession of property obtained by crime is outlined in section 354 of the Criminal Code. The section criminalizes the possession of any property that was obtained through the commission of a criminal offence. Typically, the charge is laid in conjunction with other criminal offences like theft, trafficking, or fraud. Those accused will be charged with either possession of property obtained by crime under $5,000 or over $5,000 depending on the value of the property.

For example, an individual who is caught shoplifting and who still has the property in their possession at the time of their arrest may be charged with theft as well as possession of property obtained by crime. The property the individual is in possession of can be a tangible item like a bike or car, or it can be intangible such as illegally obtained funds or other valuable securities.

An individual may be charged with possession of property obtained by crime even if they did not directly steal the item in question. For example, an individual who purchases a brand-new TV in the box off the back of a truck for $100 may be charged with possession of property obtained by crime where the TV has been stolen. Even though the purchaser did not steal the item, they are nonetheless in possession of property obtained by crime. Such an individual may be found guilty of the offence where they were aware the item was stolen or were reckless or willfully blind about whether the item was stolen.

What if I did not know the Property was Stolen?

The Criminal Code requires that the individual in possession of the property knew it was stolen or otherwise obtained through the commission of a criminal offence. Specifically, it states that it is an individual is guilty of the offence if they have in their possession any property, or thing, or any proceeds of any property, knowing that all or part of the property or thing or proceeds of the property was obtained by or derived directly or indirectly from the commission of an indictable offence. 

This means that the accused must have had some idea that the item was obtained by crime. For example, an individual who purchases a TV from a stranger on Facebook marketplace for fair market value is unlikely to be charged with possession of property obtained by crime even if the TV was stolen. This is because there is nothing about the transaction that seems suspicious. On the other hand, an individual who buys a brand-new TV in the box for substantially lower than market price without asking any questions about how the seller is able to sell the item for such a low price may be guilty.

Those who are willfully blind regarding the situation are more likely to be charged and convicted. The police, Crown and Court will consider whether the accused ignored red flags, whether they asked pertinent questions, and whether the deliberately ignored signs that something suspicious was going on.

What if I was Holding the Property for Someone Else?

It is not relevant that the accused was holding the stolen property or proceeds of stolen property or of some other offence for someone else. If the accused was knowingly in possession of property obtained by crime, they are guilty of the offence. As long as the accused had possession and control over the item, they can be convicted. 

What is the Penalty for Possession of Stolen Property in Toronto?

The Criminal Code outlines the punishment for possession of stolen property obtained by crime in section 355(1). It provides that where the subject matter of the offence is a testamentary instrument or the value of the subject matter of the offence is more than $5,000, the maximum penalty is ten years imprisonment where the Crown proceeds by indictment and two years less a day where the Crown proceeds by summary conviction. Where the value of the subject matter of the offence is less than $5,000, the maximum penalty will be two years in prison.

In practice, those charged with the offence are not always sentenced to a period of custody. Custody is reserved for more serious cases or for offenders who have a history of committing related offences. Experienced legal counsel can position the case in such a way that the Court is comfortable imposing a non-custodial sentence upon conviction.

It is common or the court to impose a restitution order in cases involving possession of property obtained by crime. Where some or all of the property taken cannot be recovered or has been converted to another form and cannot be converted back (sold to someone), the sentencing court may require the offender to pay the complainant back for the value of the property lost.