He cited R. v. Swituka in which the judge discusses the three types of possession as established by the Ontario Court of Appeals case R. v. Pham, personal possession, constructive possession and joint possession. Personal possession is self-explanatory. Constructive possession requires knowledge beyond passive involvement and some measure of control. Joint possession also requires consent in addition to knowledge and control.
Rusnak said given the facts, the only reasonable inference in the Esquivel matter was that she had knowledge of the money, gave consent to the activities leading to its procurement and had control of it constituting joint possession.
In Swituka, the defendant, Travis Swituka was found guilty of possession of cocaine for the purpose of trafficking even though he was not in personal possession of the drugs nor was he even in the residence where they were found at the time.
However, because he had keys to the safe in which the coke was found on his key chain with those of his truck, the judge concluded: "The only reasonable inference that can be drawn from the facts was that Swituka had knowledge, consent and control over the safe and its contents. He was in constructive and/or joint possession of the cocaine found by the police in the apartment.