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Is Drug Paraphernalia a Crime?

Possession of drug paraphernalia in and of itself is not a criminal offence .

Possession of drug paraphernalia in and of itself is not a criminal offence .

  • It is not a criminal offence to possess drug paraphernalia in Canada.
  • If you possess only drug paraphernalia and no illegal substance you cannot be charged with a criminal offence.
  • The Controlled Drug and Substance Act (CDSA) does prohibit the importing and exporting drug paraphernalia:
  • This criminal offence is found in section 462.2 of the CDSA

Offence
462.2 Every one who knowingly imports into Canada, exports from Canada, manufactures, promotes or sells instruments or literature for illicit drug use is guilty of an offence and liable on summary conviction

(a) for a first offence, to a fine not exceeding one hundred thousand dollars or to imprisonment for a term not exceeding six months or to both; or

(b) for a second or subsequent offence, to a fine not exceeding three hundred thousand dollars or to imprisonment for a term not exceeding one year or to both.

R.S., 1985, c. 50 (4th Supp.), s. 1.

Proof of the Offence

  • In order to prove that someone has committed the offence of importing or exporting drug paraphernalia under section 462.2 the Crown must prove beyond a reasonable doubt:
  1. The identity of the accused
  2. Date and time that the alleged incident occurred
  3. The jurisdiction (Including region and province)
  4. The thing is an instarument or literature for illicit drug
  5. The culprit knowingly does the prohibited act

Definitions

  • “illicit drug” means a controlled substance or precursor the import, export, production, sale or possession of which is prohibited or restricted pursuant to the Controlled Drugs and Substances Act;
  • “illicit drug use” means the importation, exportation, production, sale or possession of a controlled substance or precursor contrary to the Controlled Drugs and Substances Act or a regulation made under that Act;
  • “instrument for illicit drug use” means anything designed primarily or intended under the circumstances for consuming or to facilitate the consumption of an illicit drug, but does not include a “device” as that term is defined in section 2 of the Food and Drugs Act;
  • “literature for illicit drug use” means any printed matter or video describing or depicting, and designed primarily or intended under the circumstances to promote, encourage or advocate, the production, preparation or consumption of illicit drugs;
  • “sell” includes offer for sale, expose for sale, have in possession for sale and distribute, whether or not the distribution is made for consideration.

R.S., 1985, c. 50 (4th Supp.), s. 1; 1996, c. 19, s. 67.

Can the police search me if I am in possession of drug paraphernalia?

  • Possession of drug paraphernalia can be grounds to search your car during a traffic stop.
  • if the drug paraphernalia is in plain view the police may have reasonable and probable grounds to believe there are illegal drugs in your possession.
  • If your car has been stopped by the police during a traffic stop they are typically not allowed to search your car.
  • They are, however, allowed to look in the windows of your car, and may use a flashlight to do this if it is nighttime.
  • The police are only allowed to search your car if they have reasonable and probable grounds to believe that there are illegal drugs or alcohol or evidence relating to the commission of a crime in the car.
  • This reasonable and probable grounds may be formed by the possession of drug paraphernalia, revealed when the police look into your car.
  • They must also believe that the evidence, drugs or alcohol would be removed or destroyed if they were to get a search warrant.
  • If you have been charged with a criminal offence contact Kostman and Pyzer, Barristers today for your free consultation!

 

14 Mar 2017

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