What is drug possession?

The criminal charge of drug possession is not as simple and self-explanatory as it seems. That is because you can be charged with drug possession even if the illegal substance was not directly with you, but is instead found in someone else’s home or a neutral location such as a storage locker. All the Crown has to prove is that you had knowledge of the drugs and some degree of control over them.

The Controlled Drugs and Substances Act (CDSA) sets out the laws and penalties concerning illegal drug use. If you are found with a large quantity of drugs, you may face drug trafficking charges, which are much more serious than possession charges.

What are the three types of drug possession?

The most common type is personal possession, where the drug is found on your person or in your car or home. The second is constructive possession, which means that you had some measure of control over the drug even though it was physically in someone else’s possession. If you had knowledge of the place it was stored or had access to it, you can be charged. Joint possession arises when two or more people collectively own and control illegal drugs.

In all cases, if you had knowledge and control of a substance you knew to be illegal, you can be charged with drug possession. For example, if you shared a house with other people and illegal drugs were left in the open, you could be charged, even if the drugs did not belong to you. Conversely, if it can be shown that the drugs were hidden and that you were unaware of their presence, that lack of knowledge could be used in your defence.

According to information from Statistics Canada, there were 26,402 cannabis possession charges laid in 2018, and only 46 in 2019, the year it was decriminalized. For 2019, the same report lists various other drugs and the number of possession charges: cocaine, 6,732; methamphetamine, 10,849; ecstasy, 231; heroin, 2,342; opioids (not heroin), 1,355; other drugs, 7,964.

What is the penalty for drug possession?

If it is the first time you have been charged with drug possession and you were found with a relatively small amount of “soft” drugs such as cannabis (30 grams of dried marijuana is the maximum amount a Canadian is allowed to carry), the Crown will likely treat your possession charge as a summary offence, punishable with fines or short jail sentences or both. Conversely, if you are convicted of possessing a large amount of a “hard” drug such as cocaine, fentanyl or heroin, the Crown will be looking for significant time behind bars.

Section 4 of the CDSA spells out the maximum penalties given for possessing drugs found in various Schedules of the Act. If you are convicted of possessing a Schedule I drug and it is treated as an indictable charge, the maximum sentence is seven years in prison. If the charge is treated as a summary conviction, the maximum penalty for a first offence is $1,000, six months in jail or both. For subsequent offences, the maximum penalty increases to $2,000, one year in jail or both.

For drugs belonging in Schedule II, the maximum penalty for charges treated as indictable offences is five years in prison. If the charge is treated as a summary conviction, the maximum fine for a first offence is $1,000, six months in jail or both, with both of those doubling for subsequent offences.

For possession of a Schedule III substance, charges treated as indictable offence can result in a three-year prison sentence. Those found guilty of charges handled as summary convictions, the maximum fine for a first offence is $1,000, six months in jail or both, with those penalties doubling for subsequent offences.

Mandatory minimums for drug offences may be repealed

In February 2021, the Department of Justice (DoJ) introduced a bill to repeal mandatory minimum penalties (MMP) for 14 offences in the Criminal Code and six drug offences in the CDSA. Those six are:

  • trafficking or possession for purpose of trafficking (two separate offences)
  • Importing and exporting or possession for the purpose of exporting (two separate offences)
  • production of substance Schedule I or II (two offences)

In a statement, the DoJ said these changes are needed to address the “disproportionate representation of Indigenous peoples, as well as Black Canadians in the criminal justice system.”

According to the statement, “Indigenous and Black offenders were more likely to be admitted to federal custody for an offence punishable by an MMP. In 2020, despite representing 5% of the Canadian adult population, Indigenous adults accounted for 30% of federally incarcerated inmates … Black inmates represented 7.2% of the federal offender population but only 3% of the Canadian population.”

The statement adds that “judges must still impose a sentence that is proportionate to the degree of responsibility of the offender and the seriousness of the offence, taking into account all aggravating and mitigating factors. This includes the risk to public safety. It also includes the individual and their experience with systemic racism.”

Some cities want drug possession decriminalized

Although drug legislation is a federal responsibility, Vancouver and Saskatoon have been looking at whether the simple possession of illicit substances should be decriminalized. According to a news report, Vancouver has proposed possession thresholds of as much as two grams of opioids including heroin and fentanyl, three grams of cocaine, one gram of crack cocaine and 1.5 grams of amphetamines – the drugs most commonly involved in fatal overdoses.

For prescription medications, the report states, Vancouver proposes decriminalizing the possession of as much as two grams of hydromorphone, 7.5 grams of sustained-release morphine, two grams of oxycodone, one gram of liquid methadone, 120 milligrams of Suboxone, 80 milligrams of clonazepam, 400 milligrams of diazepam, 80 milligrams of Ativan and 500 milligrams of prescription stimulants.

Vancouver has been hard-hit by illegal drug use, which has killed more than 1,800 people in the city since 2016, the report notes. It adds that under s. 56 of the CDSA, the health minister can grant an exemption “necessary for a medical or scientific purpose or is otherwise in the public interest.”

In Saskatoon, the chief of police says his force already focuses on the more serious drug-trade offences and officers only consider possession charges when other, more serious factors are in play, states a news report. It explains that “overdose deaths have skyrocketed in Saskatchewan in recent years, with provincial data showing 575 accidental deaths due to drug toxicity” in a 15-month period.

The report adds that the Canadian Association of Chiefs of Police endorsed the decriminalization of personal possession of drugs last year, calling for police agencies to “recognize substance abuse and addiction as a public health issue.”

Can I get my cannabis possession charge dropped?

When Canada legalized cannabis in 2019 the government unveiled a program aimed at “erasing Canadians’ prohibition-era records for cannabis possession,” according to a news report, even though “fewer than 400 people have successfully been pardoned.”

It states that Canadians with criminal records have always been able to apply for pardons if they were eligible, at a cost of $644, but that the process for cannabis possession charges is free.

The story notes that it is difficult to determine how many Canadians have prohibition-era records for cannabis possession, as many were prosecuted under a generic drug possession charge, though “when the program was being debated in Parliament, a figure of 250,000 was cited.”

What are my defences?

To be convicted of drug possession, the Crown must prove that you intentionally had control of some substance you knew was illegal. If police had a search warrant but they overstepped the powers it grants when searching a residence for drugs, your lawyer could mount a challenge under the Canadian Charter of Rights and Freedoms, as all Canadians have the right to be free from unreasonable police searches. If that challenge is successful, the court may rule that any evidence uncovered in the search is inadmissible. Another defence for possession cases would be casting doubt about whether you had knowledge and or control over the drugs.

Why you need my help

The rules around drug possession are ever-changing, but the court still has to abide by what is in the Code and the CDSA. If you are facing a drug possession charge, you could be looking at jail time. A conviction could also hurt your chances for new employment or for crossing the border. Don’t take that chance. Call me for a free consultation, in French or English, so that we can explore all your legal options.

Filed Under