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Drug Offences
In any drug prosecution, the Crown Attorney must initially establish that the item in question is
indeed an illegal drug as defined by the Controlled Drugs and Substances Act.
Typically, the Crown proves the nature of the substance, alleged to be an illegal drug, by
presenting the "Certificate of Analysis" from a Health Canada analyst who tested the narcotic. A
mere visual identification by a police officer is insufficient.
Sometimes, the Crown Attorney neglects to tender the drug certificate, resulting in an acquittal.
The Crown Attorney must also prove that the person charged was in possession of the illicit
drug.
What is possession?
To establish actual possession of a drug, the Crown must show (i) knowledge of the item and (ii) some measure of control over the item.
To establish actual possession of a drug, the Crown must show (i) knowledge of the item and (ii) some measure of control over the item.
How is knowledge proven?
Having an illegal drug in one's possession may not imply actual possession if doubt is raised regarding knowledge of the item's existence. For instance, wearing someone else's clothing without awareness of drugs in the pockets does not establish knowledge. Mistaking one illegal drug for another, however, is not a valid defense.
Having an illegal drug in one's possession may not imply actual possession if doubt is raised regarding knowledge of the item's existence. For instance, wearing someone else's clothing without awareness of drugs in the pockets does not establish knowledge. Mistaking one illegal drug for another, however, is not a valid defense.
Another scenario may exist where the person was aware of the item in their possession but did
not know the item was an illegal drug. For example, someone in possession of a bag of
marijuana, mistakenly thinking it was a bag of oregano or another type of herb used for
cooking, cannot be said to have the requisite knowledge to establish possession of the illicit
narcotic.
However, mistaking one type of illegal drug for another is not a proper defense to possession. A
person will not be acquitted of possession if they assert that they believed they were in
possession of cocaine when they were actually in possession of heroin.
What is control?
Even if the Crown can prove that a person had knowledge of the illegal drug, the Crown must also prove that the person exercised some measure of control over the drug.
Even if the Crown can prove that a person had knowledge of the illegal drug, the Crown must also prove that the person exercised some measure of control over the drug.
Even if someone doesn’t have drugs located on their person (actual possession), they can
potentially be found in possession if it can be determined that they had both knowledge and
control over the drugs (constructive possession). Because the accused is not in physical
possession of the drugs in cases of constructive possession, the necessary knowledge and
control must be inferred from other evidence.
For example, if drugs are found in the glove box of a motor vehicle owned and driven by the
accused at the time the drugs were seized, it may be argued that the driver had the requisite
knowledge and control over the vehicle, thus establishing they were in possession of the drugs
located within the vehicle. The same can be said for an item found inside an accused person’s
bedroom or suitcase.
However, in the same scenario where drugs are located in the glove box, a passenger in the
vehicle may not be found guilty of constructive possession, as they may be able to raise doubt
about having either knowledge or control over the illegal substance or the vehicle in which the
substance was found.
Can two people be found guilty of possessing the same drug?
Joint possession of an illegal drug can be found where one of two or more persons is found in possession of a drug with the knowledge and consent of the others.
Joint possession of an illegal drug can be found where one of two or more persons is found in possession of a drug with the knowledge and consent of the others.
The key difference between joint possession and constructive possession is that constructive
possession requires an element of control over the item whereas joint possession does not
require control but rather the consent that someone else exercise control over the item.
A person may be found guilty of joint possession where the evidence reveals that they
permitted someone else to hide drugs inside their apartment or store drugs in the glove box of
their motor vehicle.
What if I was subject to an illegal search by police?
Quite often, the issue at trial is not whether the Crown can prove the item is an illegal drug or prove that the accused was in possession of the drug. The issue becomes whether or not the police legally obtained the evidence used to establish proof of possession of the narcotic in accordance with constitutional standards.
Quite often, the issue at trial is not whether the Crown can prove the item is an illegal drug or prove that the accused was in possession of the drug. The issue becomes whether or not the police legally obtained the evidence used to establish proof of possession of the narcotic in accordance with constitutional standards.
In Canada, every citizen enjoys the right to be free from unreasonable police searches and the
right not to be stopped and detained by the police without a valid reason. Despite these
protections, Canadian citizens, especially those from minority groups, are frequently subjected
to arbitrary police stops and illegal searches of their homes, vehicles and personal property.
When the police obtain evidence through the violation of a person’s constitutional rights, the
Court may conclude that any evidence obtained from the illegal stop or search should not be
admitted in the accused person’s trial. This is a special type of application brought before the
judge at trial called a “Charter challenge”, referring to the constitutional protections found in
the Canadian Charter of Rights and Freedoms.
What is the difference between possession and a possession for the purpose of
trafficking charge?
If someone is charged with possession of a narcotic for the purpose of trafficking, the Crown must first prove that item found was an illegal drug and that he or she was in possession of that drug.
If someone is charged with possession of a narcotic for the purpose of trafficking, the Crown must first prove that item found was an illegal drug and that he or she was in possession of that drug.
Additionally, the Crown must prove that the person possessed the drugs with the intention to
sell (or give) it to others.
In determining whether or not a person is in possession of a drug for the purpose of trafficking,
the Court will examine a number of factors. Simply being found in possession of a large amount
of any drug may lead to a charge of possession for the purpose of trafficking, but it will not
necessarily lead to a conviction on that charge. For example, an accused person may testify at
trial that they regularly consume a particular drug and therefore possessed a large amount of it
to ensure they would have a continuous supply of the illicit substance for their personal use. An
admission such as this will not provide a defense to a possession charge, but may lead the
judge to reduce the charge from possession for the purpose of trafficking to the less serious
charge of simple possession. This type of reduction in the charge may have a significant impact
on the type of sentence imposed by the Judge.
The charge of possession for the purpose of trafficking is based on the likelihood that the drugs
would be trafficked in the future. it is not necessary for the Crown Attorney to prove that the
drugs were actually sold.
What are the sentences for possession and possession for the purpose of trafficking
charges?
It is difficult to estimate the type of sentence a judge may impose for being in possession of a narcotic. Generally, the Court examines the circumstances of the offender in conjunction with the type of drug, the quantity of the drug and the reason the accused was in possession of the item. The Court generally treats drug addicts with more leniency than those persons alleged to possess or sell drugs for commercial gain. Each case is fact specific and requires a detailed analysis of all of the factors in order to determine an appropriate sentence range. Typically, a person found in possession of “hard drugs” such as cocaine and heroin are more likely to attract a jail sentence than those found in possession of “soft drugs” such as marijuana or hashish. Those found in possession of large quantities of jail could face multiple years in jail. However, it is possible for someone facing a minor drug charge to avoid a criminal record or have their charge withdrawn.
It is difficult to estimate the type of sentence a judge may impose for being in possession of a narcotic. Generally, the Court examines the circumstances of the offender in conjunction with the type of drug, the quantity of the drug and the reason the accused was in possession of the item. The Court generally treats drug addicts with more leniency than those persons alleged to possess or sell drugs for commercial gain. Each case is fact specific and requires a detailed analysis of all of the factors in order to determine an appropriate sentence range. Typically, a person found in possession of “hard drugs” such as cocaine and heroin are more likely to attract a jail sentence than those found in possession of “soft drugs” such as marijuana or hashish. Those found in possession of large quantities of jail could face multiple years in jail. However, it is possible for someone facing a minor drug charge to avoid a criminal record or have their charge withdrawn.
Can two people be found guilty of possessing the same drug?
Joint possession of an illegal drug can be established when one of two or more persons is found in possession of a drug with the knowledge and consent of the others. The key difference between joint possession and constructive possession is that constructive possession requires an element of control over the item, whereas joint possession does not require control but rather the consent for someone else to exercise control over the item. A person may be found guilty of joint possession if evidence reveals they permitted someone else to hide drugs inside their apartment or store drugs in the glove box of their motor vehicle.
Joint possession of an illegal drug can be established when one of two or more persons is found in possession of a drug with the knowledge and consent of the others. The key difference between joint possession and constructive possession is that constructive possession requires an element of control over the item, whereas joint possession does not require control but rather the consent for someone else to exercise control over the item. A person may be found guilty of joint possession if evidence reveals they permitted someone else to hide drugs inside their apartment or store drugs in the glove box of their motor vehicle.
What if I was subject to an illegal search by police?
Quite often, the issue at trial is not whether the Crown can prove the item is an illegal drug or prove that the accused was in possession of the drug. The issue becomes whether or not the police legally obtained the evidence used to establish proof of possession of the narcotic in accordance with constitutional standards.
Quite often, the issue at trial is not whether the Crown can prove the item is an illegal drug or prove that the accused was in possession of the drug. The issue becomes whether or not the police legally obtained the evidence used to establish proof of possession of the narcotic in accordance with constitutional standards.
In Canada, every citizen enjoys the right to be free from unreasonable police searches and the
right not to be stopped and detained by the police without a valid reason. Despite these
protections, Canadian citizens, especially those from minority groups, are frequently subjected
to arbitrary police stops and illegal searches of their homes, vehicles, and personal property.
When the police obtain evidence through the violation of a person’s constitutional rights, the
Court may conclude that any evidence obtained from the illegal stop or search should not be
admitted in the accused person’s trial. This is a special type of application brought before the
judge at trial called a “Charter challenge,” referring to the constitutional protections found in
the Canadian Charter of Rights and Freedoms.
What is the difference between possession and a possession for the purpose of
trafficking charge?
If someone is charged with possession of a narcotic for the purpose of trafficking, the Crown must first prove that the item found was an illegal drug and that he or she was in possession of that drug. Additionally, the Crown must prove that the person possessed the drugs with the intention to sell (or give) it to others.
If someone is charged with possession of a narcotic for the purpose of trafficking, the Crown must first prove that the item found was an illegal drug and that he or she was in possession of that drug. Additionally, the Crown must prove that the person possessed the drugs with the intention to sell (or give) it to others.
In determining whether or not a person is in possession of a drug for the purpose of trafficking,
the Court will examine a number of factors. Simply being found in possession of a large amount
of any drug may lead to a charge of possession for the purpose of trafficking, but it will not
necessarily lead to a conviction on that charge. For example, an accused person may testify at
trial that they regularly consume a particular drug and therefore possessed a large amount of it
to ensure they would have a continuous supply of the illicit substance for their personal use. An
admission such as this will not provide a defense to a possession charge but may lead the judge
to reduce the charge from possession for the purpose of trafficking to the less serious charge of
simple possession. This type of reduction in the charge may have a significant impact on the
type of sentence imposed by the Judge.
The charge of possession for the purpose of trafficking is based on the likelihood that the drugs
would be trafficked in the future. It is not necessary for the Crown Attorney to prove that the
drugs were actually sold.
What are the sentences for possession and possession for the purpose of trafficking
charges?
It is difficult to estimate the type of sentence a judge may impose for being in possession of a narcotic. Generally, the Court examines the circumstances of the offender in conjunction with the type of drug, the quantity of the drug, and the reason the accused was in possession of the item. The Court generally treats drug addicts with more leniency than those persons alleged to possess or sell drugs for commercial gain. Each case is fact-specific and requires a detailed analysis of all of the factors to determine an appropriate sentence range. Typically, a person found in possession of “hard drugs” such as cocaine and heroin is more likely to attract a jail sentence than those found in possession of “soft drugs” such as marijuana or hashish. Those found in possession of large quantities of jail could face multiple years in jail. However, it is possible for someone facing a minor drug charge to avoid a criminal record or have their charge withdrawn.
It is difficult to estimate the type of sentence a judge may impose for being in possession of a narcotic. Generally, the Court examines the circumstances of the offender in conjunction with the type of drug, the quantity of the drug, and the reason the accused was in possession of the item. The Court generally treats drug addicts with more leniency than those persons alleged to possess or sell drugs for commercial gain. Each case is fact-specific and requires a detailed analysis of all of the factors to determine an appropriate sentence range. Typically, a person found in possession of “hard drugs” such as cocaine and heroin is more likely to attract a jail sentence than those found in possession of “soft drugs” such as marijuana or hashish. Those found in possession of large quantities of jail could face multiple years in jail. However, it is possible for someone facing a minor drug charge to avoid a criminal record or have their charge withdrawn.
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