Drug Charges

Drug Possession - CDSA

Summary of the Offence

What is a charge of drug possession?

Offences relating to drug possession are found in Part I of the Controlled Drugs and Substances Act (CDSA) under "Offences and Punishment."

Please note this section pertains to possession of drugs for personal use. For charges related to possession for the purpose of trafficking or drug trafficking, different principles apply.

Personal possession is outlined in s. 4(3)(a) of the CDSA.

There are several subsections under which this offence can be categorized, as the CDSA provides eight different Schedules (categories) of controlled drugs. For example:

• s. 4(3) CDSA: possession of controlled substances – Schedule I (opiates and related)
• s. 4(4) CDSA: possession of controlled substances – Schedule II (cannabinoids)
• s. 4(6) CDSA: possession of controlled substances – Schedule III (psychedelics)
• s. 4(7) CDSA: obtaining drugs with or without a prescription

A charge for possession arises when the police find a drug listed in Schedule I, II, or III on your person or property, and they believe you had the drug for personal consumption.

How Serious is the Offence?

All of the above subsections are considered “hybrid” offences. This means that, depending on the facts and circumstances of the case, the Crown may choose to proceed either by indictment or summarily.

A summary offence is generally less serious in both the type of crime and the potential sentence. By contrast, an indictable offence covers more serious crimes and carries more severe penalties.

Elements of the Offence

There are three types of possession outlined:

1. Personal/actual possession
2. Constructive possession
3. Joint possession

All three types can be proven through either direct or circumstantial evidence.

Note: This section specifically pertains to personal/actual possession.

The Guilty Act (Actus Reus)

To meet the actus reus for personal possession under s. 4(3)(a)(i) of the CDSA, the person must hold or carry the drug on their person.

“Personal possession” (i.e., the actual handling of the item) requires that “the accused must be aware that he or she has physical custody of the thing in question” (Beaver v. The Queen).

The Guilty Mind (Mens Rea)

For personal possession under s. 4(3)(a)(i) of the CDSA, the person must hold or carry the drug on their person and have knowledge and control of the drug.

There cannot be possession without knowledge of the nature of the object. Knowledge requires that an accused have awareness of “the criminal character of the item in issue” (R v Chalk), where knowledge can be inferred by recklessness or willful blindness.

Knowledge of personal possession requires an awareness of what the item is (R. v. Morelli).

In cases of personal possession, the requirement of knowledge comprises two elements: the accused must be aware that they have physical custody of the item in question, and they must be aware of what the item is. Both elements must co-exist with an act of control (outside of public duty) (Beaver v. The Queen).

Possible Defences

There are several defences that can be raised to challenge the elements of the offence of drug possession, including:

• Insufficient possession (e.g., lack of knowledge or control over the illicit drug)
• Lack of intent to interact with the illicit drug
• Possession solely for the purpose of turning the drug over to the police or destroying it
• Possession of an unmeasurably small amount of the drug (e.g., unmeasurable traces of an illicit substance)
• Possession under a valid license authorizing you to have the substance

Applicable Charter Arguments

The Charter of Rights and Freedoms outlines your rights both before and after an arrest. If police officers do not respect these rights, whether intentionally or unintentionally, this could support your defence. Any violations of your Charter rights could lead to the exclusion of some or all evidence that the prosecution intends to use.

Possible Punishment If Convicted

Depending on the nature and quantity of the drugs involved, the CDSA imposes significant penalties for drug possession charges:

• If Proceeded Summarily:
  • First offence: Maximum fine of $1,000 and/or maximum jail sentence of 6 months
  • Subsequent offence: Maximum fine of $2,000 and/or maximum jail sentence of 1 year
• If Proceeded by Indictment:
  • Depending on the drug, maximum jail sentence of 5 to 7 years

Factors That Could Increase the Likelihood of Imprisonment

Some factors that could increase your likelihood of imprisonment include:

• The drug or substance falls under Schedule I (more dangerous drugs)
• The drug was brought into Canada from another country
• The offence involved a connection to a criminal organization