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Common Defences for Drug Possession Charges
An essential element required to establish possession of a drug is the knowledge of what the substance is, or the nature of it.
In more recent cases, those charged with a drug offence have raised as a defence not that the substance was a legal one, but rather that it was a drug different from the one named in the charge.
Case law has held that as long as the mens rea (the intent) of the accused related to a substance prohibited by the Act, although the accused faced a charge relating to a different drug under the Act, that mens rea was sufficient for the accused to be convicted of the offence with which he or she was charged.
What this means is, if you had the intent to possess one type of an illegal drug, but possess another type of an illegal drug, there was still an intent present to possess an illegal drug regardless of the type.
For a possession charge, drugs need to be found on the person or in the person's immediate vicinity to be found guilty.
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The Crown will have to prove: you had physical possession or custody of the prohibited drug, that you knew you physically possessed the prohibited drug, that you intended to possess the drug, and that drug is covered in one of the Schedules of the Controlled Drugs and Substances Act.
It is important to note that ownership is not an element that must be proved for possession. Possession is defined under 4(3) of the Criminal Code, and states “a person has anything in possession when he has it in his personal possession or knowingly”.
Possession includes actual possession or custody of another person or having it in any place, whether or not that place belongs to or is occupied by them.
Therefore, if you are holding drugs for a friend, although you do not own them, you are still under the definition of possession.
If you are in a situation, for example, where you are driving in a car with a friend who has drugs in their possession, you may be charged with joint possession if it is determined that you were aware of drugs in the car and consented to the drugs being in the car.
In this situation, the Court will infer you had control of the drugs since you could have told your friend you did not want to ride with him unless he got rid of the drugs.
In a situation where there are one of 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 all of them.
Also Read: Is Drug Paraphernalia a Crime? Read more about it here
A drug charge is governed by the Controlled Drugs and Substances Act (CDSA). A drug possession charge can be complicated and it is highly advisable to seek a defence lawyer as soon as one in charge.
Drug possession is one type of drug offence governed by the CDSA. As per section 4(1) of the CDSA, no person shall possess a substance included in Schedule I, II or III (Schedules). Substances in the Schedules include a wide variety of drugs that may be normally prescribed, but can be abused, as well as those deemed recreational or “street” drugs. The sentence for possession depends on which drug is possessed, and which Schedule it belongs to.
Before exploring the sentencing for drug possession, it is important to know the difference between an indictable and summary offence.
An indictable offence is one of a more serious nature and holds a greater sentence. A summary offence is of a less serious nature, in comparison to an indictable offence, and carries a lesser sentence.
These types of offences show the maximum and minimum sentence for each section.
Schedule I
As per section 4(3) of the CDSA, every person who violates the above section (Section 4 (1)) where the subject matter of the offence is a substance included in Schedule I:
(a) Is guilty of an indictable offence and liable to imprisonment for a term not exceeding seven years; or
(b) Is guilty of an offence punishable on summary conviction and liable
(i) For a first offence, to a fine not exceeding one thousand dollars or to imprisonment for a term not exceeding six months, or to both, and
(ii) For a subsequent offence, to a fine not exceeding two thousand dollars or to imprisonment for a term not exceeding one year, or to both.
Examples of drugs found within Schedule I include codeine, oxycodone, and a variety of fentanyls..It also includes the substances found in the street drug of cocaine.
Schedule II
As per section 4(4) of the CDSA, very person who violates Section 4 (1) where the subject-matter of the offence is a substance included in Schedule II:
(a) Is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years less a day; or
(b) Is guilty of an offence punishable on summary conviction and liable
(i) for a first offence, to a fine not exceeding one thousand dollars or to imprisonment for a term not exceeding six months, or to both, and
(ii) for a subsequent offence, to a fine not exceeding two thousand dollars or to imprisonment for a term not exceeding one year, or to both.
Schedule III
As per section 4(6) of the CDSA, very person who violates Section 4 (1) where the subject-matter of the offence is a substance included in Schedule III:
a) Is guilty of an indictable offence and liable to imprisonment for a term not exceeding three years; or
(b) Is guilty of an offence punishable on summary conviction and liable
(i) for a first offence, to a fine not exceeding one thousand dollars or to imprisonment for a term not exceeding six months, or to both, and
(ii) for a subsequent offence, to a fine not exceeding two thousand dollars or to imprisonment for a term not exceeding one year, or to both.
A drug possession charge can have a wide range of factors that should be discussed with a lawyer. With that being said, a lawyer cannot accurately give a client the cost of fighting their case without knowing the details in its entirety.
Any criminal charge can be detrimental, as a criminal background stays with a person for life. Contacting a defence lawyer immediately after being charged is the most appropriate action to determine what needs to be done to further your case, and how much that can cost.
The answer to this depends on a wide variety of factors, some specific to the individual and the overall situation. This is why it is important to contact a defence lawyer immediately after being charged.
The possibility of “winning” a drug possession charge can also depend on if there was an illegal search done by the police, which can spark a Charter infringement.