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Driving doesn’t prove contents possession

Just because someone is operating a car does not necessarily mean they have knowledge and control of its contents.

In R. v. Lincoln, 2012 ONCA 542 the accused, on probation, was stopped driving a rental vehicle. Police discovered cocaine under the car’s steering column and $800 cash in Lincoln’s wallet. He was charged with several offences including possessing cocaine for the purpose of trafficking (PPT), possessing proceeds of crime and breach of probation.

At trial in the Ontario Court of Justice the judge held there was sufficient evidence of knowledge and control of the cocaine to justify a finding of possession, concluding that anything found in the vehicle was prima facie in Lincoln’s de facto possession. As its operator, the judge opined, Lincoln controlled the vehicle and was considered to also control the contents unless there was evidence indicating otherwise. He was convicted of the offences.

Lincoln successfully appealed to Ontario’s top court arguing the trial judge improperly applied a presumption that deemed Lincoln, as the vehicle operator, to have knowledge and control of its contents, in the absence of evidence to the contrary.

“No rebuttable presumption of knowledge and control for purposes of determining possession, based solely on the fact that a person is the operator with control of the vehicle, exists at common law or under the Controlled Drugs and Substances Act,” the court stated.

To give effect to such a premise would constitute an impermissible transfer of the Crown’s burden of proof to the accused. While the fact that a person is the operator with control of the vehicle, together with other evidence, may enable a trial judge to infer knowledge and control in appropriate cases, it cannot, standing alone, create such a rebuttable presumption.

Lincoln’s PPT conviction was set aside. Further, because the proceeds of crime charge flowed from the PPT charge, the trial judge applied the same sort of rebuttable presumption reasoning, concluding there was no evidence to the contrary indicating possession of the currency for any other purposes. The court set it and the breach of probation conviction, which also flowed from the PPT charge, aside.

Lincoln’s appeal was allowed and a new trial ordered.