What is Drug Possession?


WHAT ARE PROHIBITED DRUGS? 

The Controlled Drugs and Substances Act (“CDSA”) contains a list of drugs that are illegal to have and illegal to traffic or sell. The lists can be found in the CDSA in what are called “Schedules.” There are four categories of drugs that are prohibited as can be found in those schedules.

IS CANNABIS AN ILLEGAL DRUG?

No, cannabis and cannabis products are now legal in Canada, but there are restrictions surrounding their use and consumption. Most rules are set out in the federal Cannabis Act with some extra rules provided in local provincial legislation. Users must be 18 years of age and can only buy cannabis from licensed stores. A maximum of 30 grams of cannabis may be bought or carried by a person at any time. There is also a restriction of growing only 4 plants per household. It is important to note that driving high is illegal, and cannabis cannot be within reach of anyone in a vehicle. Further, if you do not comply with the law as set out in the Cannabis Act, you can be charged with possession, cultivation, and trafficking offences much the same as you may be under the CDSA in relation to other drugs. What that means is that in some cases, yes, cannabis is still illegal to possess.

WHAT DRUGS ARE ILLEGAL?

The four Schedules of the CDSA list several types of banned substances/drugs including:

  • Opium
  • Heroin
  • Methadone
  • Cocaine
  • Codeine
  • Oxycodone

  • Morphine
  • PCP (or “angel dust”)

  • Psilocybin (or “magic mushrooms”)
  • LSD


Some substances are completely banned, while others are listed as only available under certain limited conditions such as having a doctor’s prescription for the substance. 

WHAT DOES IT MEAN TO BE IN POSSESSION OF AN ILLEGAL DRUG?

Being in the possession of a drug for the purposes of a drug possession offence can have a wider definition than you may think. There are three categories of possession: personal, constructive, and joint.

The most common type of possession is "actual personal possession" which means you had a drug on you or your immediate vicinity.  A second type of possession is “constructive possession." This type of possession can occur even though you did not have physical or personal possession of the prohibited drugs but, instead, you knew about them, consented to them being there or could have controlled them being there. For example, if you lived in a home with a friend and you knew and consented to the fact that he was keeping prohibited drugs in the bathroom. If the drugs were discovered, and you were charged with possession, the Crown will try to prove that you were in “constructive” possession.

A third type of possession is called "joint possession" wherein multiple people can be deemed to be in possession or custody of the prohibited substance. For example, if you are driving a friend who has drugs in their possession, you may be charged with joint possession if it is determined that you were aware of and allowed or agreed to the drugs being in the car. The Crown will try to prove that you were in “joint” possession of the drugs with your friend. That is, you both had possession of the drugs.

HOW IS DRUG POSSESSION PROVEN?

The offence of possession may be laid where a police officer finds a person with a small quantity of a prohibited drug and the arresting police officer believes that the accused had this drug for personal consumption. The Crown Prosecutor will be required to prove the following:

  • That you had physical possession or custody of the prohibited drug;
  • That you knew that you physically possessed the prohibited drug;

  • That you intended to possess the drug; and
  • That the drug is a prohibited drug under the CDSA.


KNOWLEDGE OF THE PROHIBITED DRUG

Part of proving possession requires that you must have knowledge of the prohibited drug. Knowledge of the prohibited drug can mean knowledge of the type of drug or even that you knew of a prohibited drug in an area that you exercise control over. Recall the previous example of driving a friend who has prohibited drugs in their possession. If it is determined that you were aware of and consented to the drugs being in the car, you could also be charged with possession.

DO YOU HAVE TO KNOW THE SPECIFIC TYPE OF DRUG YOU HAVE?

Past cases have shown that it is not necessary to be aware of the exact type of drug, rather only be aware that it is illegal. However, this is case specific. For example, simply having knowledge of a package containing “mushrooms" may be not enough information for the accused to assume knowledge of the substance as being a psychedelic mushroom listed in the CDSA Schedules. Multiple factors play into the court’s interpretation of the facts surrounding possession offences, so it is important to retain a lawyer that is able to clearly present the facts of your case in the most beneficial manner.

WHAT ARE THE PENALTIES FOR DRUG POSSESSION?

The CDSA and Cannabis Act outline penalties for drug possession that vary with the type and amount of drug possessed. It is not legal to possess any amount of any substance prohibited under the CDSA without meeting the requirements of lawfully possessing them, such as having received a doctor’s prescription.  A conviction for any drug possession offence can prevent you from being granted entry into other countries, particularly the United States. Penalties range from a fine to months or even years in prison depending on a number of factors of these factors. It is important to obtain legal advice from an experienced criminal defence lawyer right away! Call me to discuss your drug possession charge.