Overview
Possession of a scheduled substance is the most common charge involving drugs in Canada. Rather than carrying increasing penalties, possession is often associated with addiction and Canadian law reserves an increasing amount of compassion for the plight of addicts. Make no mistake, however, there is no “turning a blind eye” for possession and arrests remain substantial.
Possession of a drug is not technically a criminal offence. In Canada, possession of a scheduled substance is a contravention of the Controlled Drug and Substances Act (CDSA), which outlines the offences and penalties for violations. For all intents and purposes, it is prosecuted the same way as a criminal offence so this distinction might be unnecessary.
Definition
For the possession offence to be made out, it is required that the accused have possession of the particular substance in question. It is very important that the substance be legitimate. For instance, possessing a quantity of leafy green substance resembling marijuana but is actually oregano will not be sufficient. Similarly, the accused must have knowledge of the substance’s presence on their person or in their belongings.
As with trafficking, this offence can be subdivided by Schedule. Schedule I contains the most harmful drugs (cocaine and heroin-based substances). Schedule II is primarily marijuana but also includes hashish and derivatives. Schedules III-IV contain other controlled substances including magic mushrooms, ecstasy, and steroids. By far the most common, Schedules I and II are the types seen most often in Canadian courts
Evidence
An arrest for possession of scheduled substance normally occurs within the context of another type of investigation. Any form of valid arrest gives police a certain amount of jurisdiction to search a person’s pockets and body incidental to arrest. For instance, a search of an impaired driver at the side of the road might reveal a small quantity of marijuana in the person’s pocket. In these types of cases, possession will almost invariably be made out.
This offence might also arise when officers attend a home and are given permission to search the residence by one of the occupants. It is common to find drugs in someone’s closet or in a drawer in a bedroom.
The substance is seized, weighed, and ultimately tested to determine if it is in fact a scheduled substance.
It is also common in roadside stops pursuant to the Highway Traffic Act for investigations to begin as valid driving-related investigations and for them to turn into warrantless CDSA searches. Various factors dictate whether the officer had the right to perform the search. One of the more common evidentiary factors is the officer indicates that the substance was “in plain view”, meaning it could be easily seen from outside the vehicle.
Penalty
In law, like the trafficking offence, there is a tremendous difference in penalty depending on the Schedule in which the substance is registered. For instance, possession of cocaine is punished much more severely than possession of marijuana. Even within a Schedule, penalties differ. Possessing even miniscule amounts of crack cocaine will attract higher sentences than powdered cocaine.
The reason for the different penalties is due to the particular scheduled substance’s perceived harm to society and is an attempt to dissuade those who might consider using a harmless activity.
Obviously, the quantities in issue will determine a great extent any sentence imposed. For this offence, normally there is a small quantity of drugs discovered. Larger discoveries usually lead to the possession for the purpose of trafficking offence. The type of substance will dictate how much is required to attract the trafficking presumption. For instance, 10 grams of crack cocaine might lead to a P4P charge whereas a minimum of 30 grams of marijuana is required. Possession of amounts under these usually leads to the simple possession charge.
Sentences for possession are the most lenient of all forms of drug offences. This is due to society’s moderate compassion for addicts. Still, it remains prohibited to possess scheduled substances without a prescription and Canada’s current drug policy seems to be focused on punishment rather than rehabilitation.
Defence Strategy
The most common type of defence in drug-related prosecutions is for an accused to argue that their Charter rights have been violated. The Canadian Charter of Rights and Freedoms is part of our Constitution and police officers must respect an individual’s rights while they are investigating crime. Unfortunately, the law in Canada has shifted in recent years to a certain level of tolerance of violations of a person&339;s rights in favour of a pragmatic approach.
A violation of a person’s Charter rights enables that person to argue that the violation of their rights is more egregious than the drug offence for which they are charged and ask the judge to correct the injustice by excluding the evidence (typically leading to an acquittal of the accused). Acquittals are becoming increasingly rare.
Other types of defence for possession cases involves the accused introducing a doubt about whether they had knowledge and or control over the drugs found.
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