Drug offences

What must the Prosecution prove in a drug case?

Canadian law criminalizes the production, possession, and trafficking of illicit substances. Very severe penalties are in force to punish these types of offenders.

In any drug prosecution, the Prosecution must prove that the item in question is actually an illegal drug as defined by the Controlled Drugs and Substances Act. Without a valid medical exemption, it is illegal to possess any of the following substances in Canada: hashish, cocaine, heroin, GHB, ecstasy, magic mushrooms, ketamine, LSD, crystal meth, opium, etc. Typically, the prosecutor will prove the nature of the substance alleged to be an illegal drug by tendering into evidence the Certificate of Analysis following identification of the substance by Health Canada. It is not sufficient for the police officer to testify that the item in question looked like an illegal drug.

How does the Prosecution prove actual possession of drugs?

To prove someone is in actual possession of a drug, the Crown must show (1) knowledge of what the item is; and (2) some measure of control over the item. 

For example, someone in possession of a bag of cocaine, mistakenly thinking it was a bag of sugar or another type of salt used for cooking cannot be said to have the requisite knowledge to establish possession of the illicit narcotic.

Interestingly, actual ownership of the drug is not important when it comes to possession; one can be found in possession of something that belongs to or was owned by someone else.

Having an illegal drug in your pocket may not always establish actual possession if doubt can be raised on the issue of knowing that the item was there. For example, one may wear an item of clothing (such as a jacket or pair of jeans) belonging to a friend or relative without knowledge that drugs were left in the pockets of the clothing. Without the knowledge that the drug was there in the first place, one cannot properly be found guilty of the offence of possession.

However, mistaking one type of illegal drug for another type of illegal drug is not a proper defence to possession of a narcotic.  A person will not be acquitted of possession where he or she asserts that they believed they were in possession of cocaine when they were actually in possession of heroin.

Can I be found guilty of possessing a drug not found on me?

Even if someone doesn’t actually have drugs on their person (actual possession), they can potentially be found to be in possession of the drugs if it can be shown that they had both knowledge and control over the drugs located elsewhere (constructive possession).

Because the accused is not in physical possession of the drugs in cases of constructive possession, the necessary knowledge and control must be inferred from other evidence. For example, if drugs are found in the glove box of a motor vehicle owned and driven by the accused at the time the drugs were seized, it may be argued that the driver had the requisite knowledge and control over the vehicle, thus establishing he was in possession of the drugs located within the vehicle. The same can be said for an item found inside an accused person’s bedroom or suitcase.

However, in the same scenario (where drugs are located in the glove box), a passenger in the vehicle would not be found guilty of constructive possession where they are able to raise a doubt as to whether they had either knowledge or control over the illegal substance.

Can two people be found guilty of possessing the same drug?

Joint possession of an illegal drug can be found where one or more persons is found in possession of a drug with the knowledge and consent of the others.

For example, a person may be found guilty of joint possession where the evidence reveals that they permitted someone else to hide drugs inside their apartment or store drugs in the glove box of their motor vehicle.

What if I was subject to an illegal search by the police?

Quite often, the issue at trial is not whether the prosecution can prove the item is an illegal drug or prove that the accused was in possession of the drug.  The question is whether or not the police legally obtained the evidence used to establish proof of possession of the narcotic in accordance with constitutional standards.

In Canada, every person enjoys the right to be free from unreasonable police searches and the right not to be stopped and detained by the police without a valid reason. Despite these protections, Canadian citizens, especially those from minority groups, are sometimes subjected to arbitrary police stops and illegal searches of their homes, vehicles and personal property.

When the police obtain evidence through the violation of a person’s constitutional rights, the Court may conclude that any evidence obtained from the illegal stop or search cannot be admitted into evidence. This is a special type of application brought before the judge at trial called a Charter challenge, referring to the constitutional protections found in the Canadian Charter of Rights and Freedoms.

Is it possible to challenge a search warrant?

Even if the police have a warrant issued by a judge to search a particular location where drugs are thought to be, it may be possible to challenge the basis for issuing the warrant. If the judge on review finds that the officers who obtained the warrant relied upon unreliable or inaccurate information when they obtained the warrant, the warrant may be ruled invalid and the results of the search excluded from the evidence at trial. In many cases, a successful motion to invalidate a search warrant will result in an acquittal.

What is the difference between possession and possession for the purpose of trafficking charges?

Generally the distinction to pursue the charge of possession of a narcotic for the purpose of trafficking is quantity. Similar to simple possession, the prosecution must first prove that item found was an illegal drug and that he or she was in possession of the illicit substance.

Additionally, the Crown must prove that the person possessed the drugs with the intention to sell (or give) it to others. In determining whether or not a person is in possession of a drug for the purpose of trafficking, the Court will examine a number of factors including:

1. the quantity of drugs involved;
2. the value of the drugs involved;
3. the drug paraphernalia found;
4. the amount of money found;
5. the denominations of the money found;
6. any statement of the accused;
7. any association with known drug traffickers;
8. any unexplained wealth; and
9. the credibility of defence witnesses.

Simply being found in possession of a large amount of any drug may lead to a charge of possession for the purpose of trafficking, but it will not necessarily lead to a conviction.  For example, an accused person may testify at trial that they regularly consume a particular drug and therefore possessed a large amount to ensure they would have a continuous supply for their personal use.  An admission such as this will not provide a defence to a possession charge but may lead the judge to reduce the charge from possession for the purpose of trafficking to the less serious charge of simple possession. This type of reduction in the charge often has a significant impact on the type of sentence imposed by the judge.

What are the sentences for possession and possession for the purpose of trafficking charges?

It is difficult to estimate with certainty the type of sentence a judge may impose for possession of an illegal drug.  Generally, the court examines the circumstances of the offender in conjunction with the type of drug, the quantity of the drug and the reason the accused was in possession of the item. The court generally treats drug addicts with more leniency than those persons who sell drugs for commercial gain. Each case is fact specific and requires a detailed analysis of all of the factors in order to determine an appropriate sentence range. Typically, a person found in possession of hard drugs such as cocaine and heroin is more likely to attract a jail sentence as compared to a soft drug such as hashish. Those found in possession of large quantities could face many years in prison. However, it is possible for someone facing a minor drug charge to avoid a criminal record or have their charge withdrawn.

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