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Relevant Case Law


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1. R v Ormerod, [1969] 4 C.C.C. 3 at p. 9 (Ontario Court of Appeal) 
While rejecting an argument that a common law "public duty" empowers police and their agents to traffic in narcotics in order to catch drug dealers, the Court cited with approval the finding in R v Hess (No. 1) 94 C.C.C. 48, stating"  "The concept of 'public duty' in the Hess case is different from that urged upon this Court in the present proceedings.  As dealt with in the Hess case, it relates to the handling of things only for the purpose of turning them over to the police, and not with even any momentary intention of keeping or using them.  The present case would be more analogous if the accused had been in the position of Dennis and had obtained the marijuana to turn it over to the police for prosecution….Of course, on the reasoning in the Hess case, Dennis would not be guilty of possession…"
 
2. R v Hess (No. 1) (1948) 94 C.C.C. 48, pp. 50 - 51 (B.C. Court of Appeal)
O'Halloran, J.:  "If Hess, knowing the parcel to contain drugs, gave it to a friend or took it to his room he would, in my opinion, be guilty of possession.  But if before or after learning what the parcel contained, he took it to the police station and handed it in with an explanation of how he found it (which I regard as a public duty), in my opinion, he would not be guilty of possession."  
 
3. R v Christie, [1978] N.B.J. No. 68, at p. 5 (New Brunswick Supreme Court, Appeal Division)  
Hughes, C.J.N.B.:  "Nor do I think …a person who manually handles it for the sole purpose of destroying or reporting it to the police has committed the offence of possession."  (it, being  contraband)
 
4. R v Boyce, [2002] OJ. No. 3707, p. 10 (Ontario Court of Justice) 
Bellefontaine J.:  "I have considered R v Ormerod, [1959] 4 C.C.C. 3, and R v. Christie (1978) 41 C.C.C. (2d) 282 and am satisfied the exemption would only apply in situations where the only intention in knowingly holding the illegal property was for the purpose of quickly turning them over to the police and without any momentary intention of keeping and using them."  
  
5. R v York, [2003] B.C.J. No 1126, at p. 8 (B.C. Supreme Court)
Joyce J.  "The element of control may be negated where the accused is acting in accordance with a public duty by, for example, taking stolen property to the police…."
 
6. R v Ahmed [1996] B.C.J. No. 2531, p 4  (B.C. Provincial Court) 
Ellan J.:  "The cases cited above in which possession has been excused are those where the physical handling was made solely for the purpose of conveying the items to the authorities or was otherwise inconsistent with an intention to control it for an illicit purpose."  
 
7. R v Manuel [2003] N.J.No. 75, p. 13 (Newfoundland & Labrador Provincial Court) 
After quoting from Hess, above, Gorman Prov. Ct. J. writes, "I would not take these comments as an attempt at imposing a duty upon citizens to contact the police. The Court in my view, is referring to those acts of possession which the police commit in the course of their duties and to a citizen passing on to the police, drugs that he or she innocently came into possession of…This case does however, assist in illustrating that there is possession and then there is criminal possession."
 
8. Mewett & Manning On Criminal Law (3rd ed), Butterworths, 1994, p. 938:  "…If someone, for example, handles the narcotics, knowing them to be such but only for the purpose of destroying them or handing them over to the police, there is no criminal possession." 
 
9. R v Martin, 2011 ONCA 348 (CanLII)  The trial judge made findings about the rationale for the respondent being in the car:  She was in the car in an honest attempt to prevent her intoxicated boyfriend from “doing something stupid”. Given this blameless purpose, we see no reversible error in the acquittal of the respondent for being an occupant in a motor vehicle knowing there was a firearm contrary to s. 94 of the Code.   .
 
10. S. 105 (1) (b) Criminal Code, makes it an offence to fail to report or deliver to an officer found or abandoned firearms. 
 
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