Have you been
charged with possession of
marijuana, hashish, cocaine,
heroin, GHB, ecstasy, magic
mushrooms, ketamine or other
illegal drug? This article
is directed towards those
persons charged
with drug possession, or possession
of a drug
for the purpose of
trafficking. If
you are charged with either of
these criminal offences, you should
consult a
criminal lawyer.
Defending drug possession cases
In a drug
possession case, the crown
must prove a number of
different things:
1) Nature of
the substance alleged to be
an illegal drug:
In any drug
prosecution, the Crown
Attorney must first prove that the item in
question is actually an
illegal drug as defined by
the
Controlled Drugs and
Substances Act.
Absent a specific medical
exemption, It is illegal
to possess any of the
following drugs in Canada: marijuana,
hashish, cocaine, heroin, GHB, ecstasy, magic
mushrooms, ketamine, lsd,
crystal meth, opium or
any other drug listed in
Schedule I,
Schedule II,
Schedule III or
Schedule IV of the Controlled Drugs and
Substances Act.
Typically,
the Crown will prove the
nature of the substance
alleged to be an illegal
drug by tendering into
evidence the "Certificate of
Analysis" of a qualified
analyst from Health Canada
who has tested the narcotic
or by calling the analyst to
give direct evidence on the
issue.
2) Proof
of possession:
The Crown
Attorney must also prove
that the person charged was
in legal "possession" of the
illicit drug. The
Controlled Drugs and
Substances Act provides
a definition of possession
as follows:
A person has
anything in possession when
he has it in his personal
possession or knowingly:
[actual possession]
(i) has it in
the actual possession or
custody of another person,
or
[constructive possession]
(ii) has it
in any place, whether or not
that place belongs to or is
occupied by him, for the use
or benefit of himself or
another person; and
[joint possession]
(b) where 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 each and all of them.
Actual
Possession:
To prove
someone is in actual possession of
a drug, the Crown must show
(i) knowledge of what the
item is; and (ii) some
measure of control over the
item.
(i)
knowledge of the illegal
drug
Simply having
an illegal drug in your
pocket may not establish
actual possession if a doubt
can be raised on the issue
of knowledge that the item
existed. For example, one
may wear a piece of clothing
(such as a jacket or pair of
jeans) belonging to friend
or relative without
knowledge of what is
contained within the pockets
of the clothing. This
person cannot be said to
have knowledge of the
illegal drug.
Without
knowledge that the drug was
there in the first place,
one cannot properly be found
guilty of the offence of
possession.
Another
scenario may exist where the
person was aware of the item
alleged to be in their
possession but they did not
know the item was an illegal
drug. For example, someone
in possession of a bag or
marijuana, mistakenly
thinking it was a bag of
oregano or another type of
herb used for cooking cannot
be said to have the
requisite knowledge to
establish possession of the
illicit narcotic.
However,
mistaking one type of
illegal drug for another
type of illegal drug is not
a proper defense 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.
(ii)
control over the illegal
drug
Even if the
Crown can prove that a
person had knowledge of the
illegal drug, the Crown must
also prove
that the person exercised
some measure of control over
the drug.
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.
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.
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