Constructive Possession
Even if
someone doesn't actually
have drugs located on their
person, they can potentially
be found to be in possession of
the drugs if it can be
determined that they had
both knowledge
and control
over the drugs.
Because the
accused is not in actual,
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 may
not be found guilty of constructive
possession as they may be
able to raise a doubt as to
whether they had either
knowledge or control over
the illegal substance or the
vehicle in which the
substance was found.
Joint Possession
Joint
possession of an illegal
drug can be found where
one of two or more
persons is found in
possession of a drug
with the knowledge and
consent of the others.
The key
difference between joint
possession and
constructive possession
is that constructive
possession requires an
element of control over
the item whereas joint
possession does not
require control but
rather the consent that
someone else exercise
control over the item.
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.
Constitutional
Challenges in Drug
Possession Cases
Quite
often, the issue at
trial is not whether the
Crown can prove the item
is an illegal drug or
prove that the accused
was in possession of the
drug. The issue becomes
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 citizen 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 constantly 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 should not be
admitted in the accused person's
trial. 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.
I have argued several
successful charter
challenges resulting in the
exclusion of evidence in
drug cases on the basis that
the police lacked a valid
reason to stop and search
the person leading to the
discovery of the drugs.
Some examples of these
Charter challenges in drug
possession cases can be
found on my
Recent Successes page.
Even if the police have a valid warrant issued by a judge to search a
specific location where drugs are later found, it may be possible to
challenge to basis for issuing the warrant. If the judge on review finds
that the officers who obtained the warrant relied upon unreliable or
inaccurate information in their application to obtain the warrant, the
warrant may be ruled invalid and the results of the search warrant may be
excluded from the evidnce at trial. It most cases, a successful motion to
invalidate a search warrant will result in a finding of "not guilty".
Possession for the Purpose
of Trafficking
If someone is charged with
possession of a narcotic for
the purpose of trafficking,
the Crown must first prove
that item found was an
illegal drug and that he or
she was in possession of
that drug.
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:
a) the quantity of drugs
involved;
b) the value of the drugs
involved;
c) the drug paraphernalia
found;
d) the amount of money
found;
e) the denomination of the
money found;
f) any statement of the
accused;
g) any association with
known drug traffickers;
h) any unexplained wealth;
and
i) 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 on that
charge. For
example, an accused
person may testify at trial that they
regularly consume a
particular drug and
therefore possessed a large
amount of it to ensure they would
have a continuous supply of
the illicit substance for
their personal use. An
admission such as this will
not provide a defense 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 may have a
significant impact on the
type of sentence imposed by
the Judge.
The police need not prove that the drugs were actually sold. the charge of
possession for the purpose of trafficking is based on the likelyhood that
the drugs would be trafficked in the future.
Sentences for possession and
possession for the purpose
of trafficking charges
It is difficult to estimate
the type of sentence a Judge
may impose for being in
possession of a narcotic.
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 alleged to possess
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
are more likely to attract
a jail sentence than those
found in possession of "soft
drugs" such as marijuana or
hashish.
If you, or
someone you know if facing a
drug possession charge in
Toronto, or anywhere else in
Ontario, you
should immediately contact a lawyer to
discuss the best way to
successfully defend
against the allegation. For
a free consultation, I can be reached at
(416) 297-7200.
Defending Drug Possession Charges in
Toronto, Ontario, Canada