One of the most common charges involving drugs in Canada is possession of a scheduled substance. Technically, possession of a drug is not a criminal offence as it is not an offence found in the Criminal Code of Canada. However, possession of a scheduled substance is a contravention of the Controlled Drugs and Substances Act (“CDSA”). Similar to offences found in the Criminal Code, contravention of the CDSA is prosecuted the same way as a criminal offence in Canada. Unlike most offences, which are prosecuted by the Provincial Crown, offences under the CDSA are prosecuted by the Federal Crown.
Possession, for the purposes of the CDSA, is defined as follows under section 4(3) of the Criminal Code as:
- Anything in possession when he has it in his person possession or knowingly
- Has it in the actual possession or custody of another person, or
- Has it in any place, whether or not that place belongs to or is occupied by him, for the use or benefit of himself or of another person; and
- Where one or two or more persons, with the knowledge and consent of the rest, has anything in his custody or possession, it shall be deemed to be in the custody and possession of each and all of them.
There are three different types of possession found within this definition of possession: personal possession, constructive possession and joint possession.
The offence of personal possession requires that there must be actual physical custody of the object and that the accused must be aware that he/she has physical custody of the object in question.
Constructive possession refers to cases where the accused does not have physical custody of the object in question, but the object is in the actual possession or custody of another person for the use or benefit of himself or of another person.
The Crown must prove that the accused knew the character of the object, knowingly put or kept the object in a place, and intends to use the object for his/her benefit or for the benefit of some other person.
This type of possession is a form of possession where multiple parties can be deemed in possession of an object. To establish joint possession there must be knowledge of the object, consent of the accused that someone else is holding the object and a degree of control over the object.
TWO ELEMENTS REQUIRED FOR POSSESSION
The two key elements required for possession for all three previously described forms of possession include knowledge and control.
The element of knowledge requires that the accused is aware of the object being in possession and aware of the criminal character of the object.
The element of control requires that the accused must have had some measure of the control over the possessed object. Control over the object may be proven if it can be established that an individual had control over the area where the object is stored.
These elements are not only required for drug possession, but are also required for other offences such as possession of stolen goods or firearms.
Each type of drug falls within a particular category, referred to as Schedules, as outlined in the CDSA. These categories determine the range of sentencing.
Schedule I contains the most harmful drugs, including heroin, cocaine, opium, oxycodone, fentanyl, morphine, methamphetamine and amphetamines.
Schedule II includes cannabis and its preparation and derivatives. Schedules III and IV include controlled substances such as LSD, magic mushrooms, ecstasy and steroids.
The penalty associated with the offence of possession depends upon the Schedule in which the substance is registered. The rationale for the different penalties relates to the particular substance’s perceived harm to society and an attempt to discourage individuals from partaking in the use of the drugs.
The quantity of the substance is also determinative of the extent of the penalty imposed. Typically in the case of possession, there is a small quantity of drugs discovered. If a larger quantity is discovered, this could lead to the charge of possession for the purpose of trafficking.
Other factors that affect the punishment include the purity, the perceived dangerousness of the drug, the purpose for which the drug was used, and the circumstances of the offender, including whether he/she has a criminal record.
Schedules I, II and III have the same punishment for a summary conviction (less serious crimes). For a first offence, the penalty is a fine not exceeding one thousand dollars and a term of imprisonment not exceeding six months, or both. For a subsequent offence, the penalty is a fine not exceeding two thousand dollars, or a term of imprisonment not exceeding one year, or both.
If the Crown prosecutor chooses to proceed by indictment (more serious crimes), the CDSA outlines different maximum terms of incarceration for possession related to each Schedule ranging from a period of three years to a period of seven years.
If you have been arrested for a drug related crime, the next steps you take may impact the rest of your life. A conviction for a drug related offence can result in serious consequences. It is important to have the attention of a skilled criminal lawyer to help build your defence and ensure you are protected.
At Affleck & Barrison LLP, we endeavour to provide our clients with exceptional legal services and offer a free initial consultation. We are happy to answer any questions you may have regarding hiring a criminal defence lawyer. Our skilled team has extensive experience defending a wide range of criminal charges. Please contact our office online or at 905-404-1947 to schedule a free consultation. We have a 24-hour phone service for your convenience. Our experienced lawyers are available to handle your defence with diligence and expertise.