The doctrine of constructive possession is a legal fiction used to describe a situation where an individual has knowledge and control of an object without having physical custody of it. The doctrine came into play during a recent trial in the Ontario Superior Court of Justice that stemmed from the execution of a search warrant at a Brampton, Ontario residence where the police found a loaded handgun in the glove compartment of an Audi motor vehicle parked in the driveway. The defendant said he knew nothing about it.

1. Introduction

On February 21, 2022, the police in Brampton, Ontario, showed up with a search warrant at 64 Mossgrove Crescent where Taverio Stewart lived with his father, Stanley. The police found a loaded 9 mm Luger firearm in the glove compartment of Taverio’s Audi that was parked in the driveway. The keys for the Audi were in his bedroom. There were no fingerprints or DNA on the Luger. Five other family members lived in the residence including Taverio’s uncle, a man with a murky past involving firearms. Uncle Downey was a frequent user of the Audi and gave Taverio cash “here and there” and occasionally “he would fill up the gas tank.” Taverio warned him “not to take his garbage” into the car. The police charged Taverio with possession of a loaded restricted firearm under s. 91 of the Criminal Code. On February 26, 2025, Justice N.L. Dennison of the Ontario Superior Court of Justice acquitted him in reasons for judgment indexed as R. v. Stewart. (here) The case presents an opportunity to discuss the elements of constructive possession in Canadian criminal law.

2. Trial Evidence

The police conducted surveillance over five intermittent days before executing the search warrant. Mr. Stewart was frequently seen driving the Audi, sometimes with other occupants of the vehicle. On February 1, 2022, the police had seen Downey at the residence. It was unclear whether they listed him as a suspect but they were aware of his activities. On July 1, 2021, he had been charged with firearms-related offences. On February 21, 2022, the day the warrant was executed, Downey was seen at the residence with an unknown male. He left the area driving a black Acura. Later in the day, Downey left and returned to the residence as a passenger in a different vehicle. Mr. Stewart returned to the residence an hour later driving the Audi. He was the last person seen operating the Audi when he went to visit his cousins later in the evening.

Mr. Stewart testified that he didn’t know the firearm was in the glove compartment and suggested Downey may have put it there. He rarely used the glove compartment to store items. His father, Stanley, corroborated his evidence that Downey often used the Audi. Stanley said he spoke to his son about it because he “noticed a pattern”. The Audi was used by other family members as well. Mr. Stewart was “free with his vehicle” and it was “not a good practice” particularly regarding Downey. Stanley said when Mr. Stewart came home after his bail hearing he went to the basement and he heard him “screaming and cursing” at his uncle. Stanley diffused the situation and Downey “basically ignored him.”

The prosecutor argued that the only reasonable inference was that Mr. Stewart possessed the firearm. After all, he owned the Audi and was the last person seen driving it. The gun was in the glove compartment on top of a receipt dated January 2022 in the defendant’s name. It was positioned in a way that was easily accessible to the driver. It did not make sense that Downey would leave a valuable firearm in a vehicle that other people had access to. The defence argued there was another reasonable explanation for the gun being in the glove compartment – Downey put it there the night before when he used the Audi. There was no reason to reject Mr. Stewart’s testimony that was corroborated by his father. The surveillance did not undermine his evidence as there were times when the police could not identify who was in the Audi.

3. Constructive Possession

Justice Dennison summarized the elements of constructive possession with an emphasis on the jurisprudence developed by the Supreme Court of Canada and the courts of Ontario that I will condense as follows.

• Constructive possession is established under s. 4(3)(a) of the Code when a defendant does not have physical custody of an object but knowingly has it in the actual possession or custody of another person or has it in any place for their own or another’s use or benefit. See: R. v. Choudry, at para. 19 and R. v. Lights, at para. 47. (here and here)
• Knowledge and control are essential elements of constructive possession which is established when a defendant: (a) has knowledge of the character of the object said to be possessed; (b) knowingly puts or keeps the object in a particular place, whether or not the place belongs to or is occupied by the defendant; and, (c) intends to have the object in the place for the use or benefit of the defendant or another person. See: R. v. Morelli, at paras. 15, 17. (here)
• Tenancy or occupancy of a place where an object is found does not create a presumption of possession. See: R. v. Lincoln, at paras. 2-3 and R. v. Watson, at para. 13. (here and here)
• When the Crown relies largely or wholly on circumstantial evidence to establish constructive possession, a conviction can be sustained only if the defendant’s knowledge and control of the object is the only reasonable inference to be drawn. The trier of fact must determine whether any other proposed way of looking at the case as a whole is sufficiently reasonable to raise a doubt. See: R. v. Villaroman, at paras. 55-56. (here)
• Alternative inferences need not be based on proven facts. A court must consider “other plausible theories” or “other reasonable possibilities” that are inconsistent with guilt. The Crown may need to negate the reasonable possibilities, but need not “negate every possible conjecture, no matter how irrational or fanciful which might be consistent with the innocence of the accused.” See: Villaroman, at para. 37.

Several factors that may be considered by a court in determining possession include: (a) the physical proximity of the firearm to the defendant; (b) the degree of visibility of the firearm; (c) the degree of communal use of the vehicle where the firearm was located; (d) the size, nature and number of weapons in a particular place; and, (e) the nature of other items located proximate to the firearm capable of providing context for inferences of knowledge and control. See: R. v. Anderson-Wilson, at para. 74. (here)

4. Conclusion

The trial judge was ultimately left with a reasonable doubt whether the only reasonable inference was that Mr. Stewart knew the firearm was in the glove compartment. He explicitly accepted his evidence that others used the Audi. In particular, Downey “used it frequently.” Mr. Stewart was not “seriously challenged” in cross-examination about his evidence that Downey used the vehicle two or three times week. The receipt found under the handgun did not undermine his testimony that he could “count on his hand” the number of times he accessed the glove compartment. “[I]t is not uncommon for people to keep receipts for their car repairs in the glove compartment,” Justice Dennison said. “It is also a matter of common sense and life experience that owners of vehicles do not check their glove compartment daily […].” The absence of fingerprints and DNA evidence also figured prominately in the reasons as well as the location of the firearm where it was not visible to anyone driving the vehicle. Although Justice Dennison thought it was “quite likely” that Mr. Stewart knew the firearm was in the glove compartment, he was “not sure” that was the only reasonable inference to be drawn and the acquittal followed.