QUICK TAKEAWAY
Drug Possession is very misunderstood, as you can be charged even if the illegal substances were found in someone else’s home. If the police can show that you have knowledge of the drugs and some degree of control over them, you could be charged and face penalties that include imprisonment. Drug offences are recognizably different from the crimes found in the Criminal Code in that the Controlled Drugs and Substances Act govern them.
Table of Contents:
Drug Possession Laws Explained
If you have been charged with drug possession, the type of drug and the amount you possess are the most important factors for determining how your case will proceed. In Canada, all illegal drugs are listed within the Controlled Drugs and Substances ActCanada's federal drug control statute, which sets the rules about unlawful drug use. While this Act is separate from the Criminal CodeA federal act codifying most criminal offences in Canada, drug charges can result in a criminal record and carry strict penalties.
The Act divides drugs into five categories or schedules, with the harshest penalties given to people found with drugs falling in the first three categories.
- Schedule ICommonly characterized as “hard drugs" drugs include street drugs such as heroin, cocaine and fentanyl.
- Schedule IIIncludes synthetic cannabinoid receptor type 1 agonists drugs include synthetic cannabinoid receptor type 1 agonists, their salts, derivatives, isomers, and salts of derivatives and isomers..
- Schedule IIIMost hallucinogens drugs are amphetamines, including LSD and magic mushrooms.
- Schedule IVSchedule IV includes popular pharmaceuticals and anabolic steroids drugs include diazepam, benzodiazepine and anabolic steroids.
- Schedule VSchedule V lists fentanyl precursors lists analogues and derivatives of N-Phenyl-4-piperidinamine and its salts.
Keep in mind that if you are found with a large quantity of drugs that the police believe you intended to sell or even give to others, you may face drug trafficking charges, which are much more serious than possession charges.
Three Types of Drug Possession
Personal Possession
With any possession charge, prosecutors need to show that you had physical control of the drug at the time of the arrest and that you knew about its illegal nature. For example, if you are found with drugs in your pocket or have them in your home or car, that is considered “personal possession,” which is the most common type of possession charge.
Constructive Possession
You can also be charged if you have some measure of control over the drug and you put it in someone else’s possession. This is called “constructive possession,” and an example of that would be if you had a key to a locker that contained drugs.
Joint Possession
When two or more people have the same substance, and they each have some measure of control over it, this is called “Joint possession.” Even if the drugs are in someone else’s pocket or residence, you could still be charged with possession if they are there with your consent and knowledge.
What the Police Need to Prove
Possessing any amount of prohibited drugs is illegal in Canada. It is the Crown’s duty to prove beyond a reasonable doubtThe standard that must be exceeded to find someone guilty that the drug was under your control and that you had some measure of control over it.
The defence of lacking knowledge or control could be used in situations where drugs were found in your house or car but you didn’t know they were there. Perhaps a friend brought them and mistakenly left them behind. Or maybe a friend had brought over a bag of something herbal to your house, but you assumed it was a form of spice or tea, and you were not aware it was an illegal narcotic.
In some cases, it can be argued that the police illegally obtained the evidence being used against you. All Canadians have the right to be free from unreasonable police searches. If the police found the drugs through an unjustified search, you may have grounds to challenge any evidence revealed in that encounter, thanks to protections offered under the Canadian Charter of Rights and Freedoms.
Treated as a Summary or Indictable Offence
Canadian courts deal with offences in three ways. summary offenceLess-serious criminal offences are for less-serious crimes such as thefts under $5,000, while indictable offenceIndictable offences are more-serious criminal offences include murder, sexual assault and aggravated assault. In between those two are what are called hybrid offenceAn offence prosecuted either as a summary conviction or as an indictable offence. This includes possession, where the Crown can deal with it as either a summary or indictable offence.
If it is the first time you have been charged and you did not possess a significant amount of drugs, the Crown will likely treat your possession charge as a summary offence. It also helps if you are found with a “soft” drug like marijuana as compared to more serious narcotics such as fentanyl or heroin.
Penalties for Drug Possession in Canada
The government is looking to relax possession laws in Canada. Prosecutors have been told to criminally prosecute only the most serious drug possession offences that raise public safety concerns and to find alternatives outside the criminal justice system for offenders.
The court has wide latitude in deciding the penalty for possession of a narcotic, with the main factors being the type and quantity of the controlled substanceA substance that is regulated by the government. If you are found to be in possession of a “hard” street drug listed in schedules I, II or III of the Act, your sentence will be harsher than someone found with more than 30 grams of marijuana, the maximum amount a Canadian is allowed to carry.
However, if you were found with cocaine or heroin, prosecutors could proceed by way of indictment, and you could spend up to seven years in prison if convicted. Repeat offenders are also more likely to suffer more severe penalties.
Every case is fact-specific and various circumstances such as the person’s past history and if they have a previous criminal record are considered. If this is your first offence there is a good chance that a plea can be arranged to avoid a criminal record, especially if you agree to enroll in counselling or other programs to help deal with personal issues.
How Sentences are Arrived at
If a guilty verdict is reached on any criminal charge, the court will have to consider several factors to arrive at your sentence. Aggravating factors, such as a past criminal record, could increase the sentence while mitigating factors, such as if this is your first offence, could decrease the punishment.
The court can decide many types of sentences or combinations of penalties.
Discharges
Absolute or conditional discharges can be given for less-serious offences. With conditional discharges, if you agree to certain conditions for a specified period of time, a criminal record will not be registered against you.
Sentences
Suspended sentences and probation allow the court to refrain from imposing a sentence and you will be put on probation for a specified length of time. Conditional sentences allows you to serve sentences in the community instead of jail, if you agree to abide with specified conditions. Imprisonment is the most serious sentence under our legal system. Anyone sentenced to less than two years is sent to a provincial correctional institution, with longer terms served in a federal penitentiary. If the court imposes a sentence of 90 days or less, it may ordered that the sentence be served intermittently, such as on weekends. This allows you to go to work or school or care for family members. People convicted of either first or second-degree murder are sentenced to imprisonment for life. If you are convicted of first-degree murder you will not be eligible for parole until serving at least 25 years of your sentence. If you are convicted of second-degree murder, you will not be eligible for parole until serving between 10 and 25 years.
Insights from a
Defence Lawyer
CCH VERIFIEDCéline Dostaler
Insights from Ottawa Lawyer, Céline Dostaler
Strategies To Defend A Drug Charge
There are several defences that a lawyer may use to defend against a drug charge. Some of these include:
- Entrapment: This defence argues that the accused was induced or coerced by the police into committing the crime and, therefore, should not be held responsible.
- Lack of knowledge: If the accused can prove that they did not know they had drugs or did not know the substance they had was a controlled substance, they may be able to have the charges dropped.
- Illegal search and seizure: If the evidence against the accused was obtained illegally through an unlawful search or seizure, the lawyer could argue for it to be excluded from the trial and have the charges dropped.
- Charter Rights violations: If the accused's rights under the Canadian Charter of Rights and Freedoms were violated, the lawyer could argue for the charges to be dismissed.
- Duress: If the accused was under threat of harm and committed the offence under pressure, this could be used as a defence.
- Necessity: In some cases, the accused may argue that they committed the offence out of necessity, such as in the case of self-medication or providing for a person with a medical need.
It's important to note that these defences are not guaranteed to be successful, and the case outcome will depend on the specific facts and circumstances.
Click to Call Celine Dostaler: (613) 863-8595
Glossary of Legal Terms
Controlled Drugs and Substances Act
The Controlled Drugs and Substances Act sets the rules about unlawful drugs in Canada and defines "schedules" or categories based on their perceived personal and public safety dangers. It also set out the punishment for individuals who engage in the possession, trafficking, and production of those drugs.
Controlled substance
Any type of drug that the federal government has categorized as having a higher-than-average potential for abuse or addiction. Its manufacture, possession or use is regulated by the government through the Controlled Drugs and Substances Act.
Criminal Code
The Criminal Code is a federal statute that defines and sets out punishments for most of the criminal offences that the Parliament of Canada has enacted.
Hybrid offence
Hybrid offences fall between a summary and an indictable offence. The Crown prosecutor chooses whether to treat the offence as a summary or indictable offence.
Indictable offence
Indictable offences are the most serious offences under the Criminal Code and they come with more serious punishments, up to a maximum penalty of life in prison.
Reasonable doubt
The Supreme Court of Canada has said that reasonable doubt “falls much closer to absolute certainty than to proof on a balance of probabilities” and “that something less than absolute certainty is required, and that something more than probable guilt is required."
Schedule I
Schedule I drugs are commonly characterized as “hard drugs.” They include street drugs such as heroin, cocaine, and opium and numerous pharmaceutical-grade drugs such as oxycodone and morphine. Schedule I drugs show a high risk of dependency. See Schedule I of the Controlled Drugs and Substances Act.
Schedule II
Schedule II drugs include synthetic cannabinoid receptor type 1 agonists, their salts, derivatives, isomers, and salts of derivatives and isomers. Until 2018 this category included drugs falling within the cannabis family but are now dealt with under the Cannabis Act. See Schedule II of the Controlled Drugs and Substances Act.
Schedule III
Schedule III drugs include the amphetamine family, including methamphetamine and lysergic acid diethylamide, better known as LSD. Most hallucinogens are classified under Schedule III. See Schedule III of the Controlled Drugs and Substances Act.
Schedule IV
Schedule IV drugs include popular pharmaceuticals such as diazepam, benzodiazepine and anabolic steroids. See Schedule IV of the Controlled Drugs and Substances Act.
Schedule V
Schedule V lists a group of novel fentanyl precursors used in the illegal production of fentanyl and substances chemically related to fentanyl. See Schedule V of the Controlled Drugs and Substances Act.
Summary offence
Summary offences are less-serious criminal offences such as disturbing the peace or unlawful assembly
