Frequently asked questions about drug possession and drug trafficking
What must the prosecutor prove in a drug case?
In all drug possession cases, the Crown Attorney must prove a number of different things
Nature of the item/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 listed in Schedules 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. It is not enough for the police officer to testify that the item in question looked like an illegal drug. Sometimes, the Crown Attorney neglects to tender the drug certificate, resulting in an acquittal.
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, has it in the actual possession or custody of another person, or, 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, 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.
How does the Crown prove if anyone is in actual possession of a drug?
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.
What is an example of not having a knowledge of what the substance is?
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. Without knowledge that the drug was there in the first place, one cannot properly be found guilty of the offence of possession. Example: If someone in possession of a bag of 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.
Is ownership of drug required to be found guilty of possessing it?
Actual ownership of the drug is not important. One can be found in possession of something that belonged to or was “owned” by someone else.
How is control over the illegal drug proven?
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
Can I be found guilty of possessing a drug not found on me?
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. If 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
Can two people be found guilty of possessing the same drug?
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.
What if the accused was illegally searched by police?
Sometimes the issue at trial 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 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 are frequently 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 Application, 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 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 evidence at trial. In most cases, a successful motion to invalidate a search warrant will result in a finding of “not guilty” and acquittal.
What is the difference between possession and a possession for the purpose of trafficking charge?
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 supply or give) it to others. 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 do not prove that the drugs were actually sold. The charge of possession for the purpose of trafficking is based on the likelihood that the drugs would be trafficked in the future.
What are the 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 or 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. Canadian courts are now required to impose minimum sentences of imprisonment for certain drug offences. If you have been charged and convicted under Canada's drug laws with possession and/or trafficking of illegal drugs, you could face the possibility of having a criminal record that could affect your ability to travel to foreign countries such as U.S. or U.K. A drug record could also affect your future employability as well as your immigration status / Inadmissibility in Canada if you are not a Canadian Citizen. You might also face the possibility of substantial jail sentence if you are found guilty of serious drug crimes.
If you, your family member or someone you know, is facing a drug related charge, Call a defence lawyer, Ranbir S. Thind at 1.780.784.1295 or email [email protected] to arrange a consultation to discuss your situation and for a sound legal advice and representation.