The Canadian Controlled Drugs and Substances Act states that no one shall possess a substance that is listed in the Act. The Act organizes a large variety of banned substances into different schedules and includes opium, heroin, and other opiates, cocaine, PCP, Psilocybin and LSDS, among many others. Some substances are completely banned, while others are listed as only available under certain limited conditions such as a doctor’s prescription or in limited quantities (marijuana). When a person is caught with these controlled substances on their person or in their property, this can result in one of three types of possession charges.
A charge of possession can be laid when you are caught with the drug on you or within your immediate areas, such as in your car or home. This is called personal possession – when an arresting officer believes the drugs found in your possession are for your own consumption. The Crown Prosecutor will then need to prove that, not only did you possess the prohibited drug, but you also knew and intended to possess it.
Constructive possession means that you are charged because someone you knew had illegal drugs and you are aware of, consented to, and exercised control over the illicit drug in some way. Even though you did not use the drugs, or even physically possess the drug, because you were aware of them, you may be charged with a possession offence. For example, if you allow a friend in your car and you are aware they have drugs on them, you may be charged with joint possession. The Crown Prosecutor will assume you had possession of the drugs, simply because you could have refused your friend entry into your vehicle if you didn’t want to be in possession of the drugs.
Possession for the Purpose of Trafficking
Possession for the purpose of trafficking is a lot more serious. This charge is laid when you are found carrying an amount of drugs that is considered too much for personal use and has equipment associated with the distribution or sale of illicit drugs, like weigh scales. The court must prove that you trafficked or offered to traffic the prohibited drug. A trafficking charge is even more severe, and if you are caught selling, giving, passing, transporting or delivering drugs or a prescription for drugs, you could be charged in this category.
The Controlled Drugs and Substances Act provides penalties for personal possession that vary with the type of drug and which drug schedule the substance is categorized in, as well as the amount of drug possessed. This is because of the perceived harm that a particular drug may have on society – some drugs are much more harmful than others and have repercussions accordingly. Drugs in Schedule I can range from a monetary fine to 7 years in prison for first offences. If you are found with drugs belonging to Schedule II, penalties range from a monetary fine to 5 years in prison. Schedule III drugs can bring you a maximum sentence of 3 years.
In most cases, the Crown has the option of proceeding by indictment or by summary conviction. Indictable offences carry larger maximum penalties. Penalties for possession for the purposes of trafficking are more serious. As outlined above, the severity of the sentence can depend on the drug type and amount. The sentence can range from a fine and/or 18 months in prison to life imprisonment and can depend on aggravating factors, such as involvement in a criminal organization or possessing drugs near areas that children frequent.
One of the most common defences in drug possession charges is an argument that the accused’s Charter of Rights were violated during the investigation of the crime, and that the violation is more severe than the charge of possession itself. Other possession charges have been defended by introducing doubt about the knowledge or control that the accused had over the drugs.
If you have been charged with a drug offence, you should consult with a lawyer immediately. At Kolinsky Law, we are highly knowledgeable and skilled in the area of drug possession charges.