In Canada, drug offences are prosecuted under the federally administered Controlled Drugs and Substances Act. The Act is divided into various schedules and each drug is classified within one of the established schedules. Drug offences are different in that they are typically prosecuted by a federal Crown instead of a provincial Crown.
For all drug offences, the Crown prosecutor must first establish that the alleged drug in question is actually an illegal drug as defined under the Controlled Drugs and Substances Act. If a drug is listed as a controlled substance under the mentioned Act, it is illegal to be in possession of the drug without a medical purpose. Examples of illegal drugs are: fentanyl, hashish, cocaine, heroin, GHB, ecstasy, magic mushrooms, ketamine, LSD, crystal meth, opium. Once the Crown establishes that the substance is a drug, usually through a “Certificate of Analysis” from Health Canada, the Crown must show that the accused was in possession of the illegal substance. The remaining elements of a drug offence will depend on the specific offence the accused is charged with.
TYPES OF DRUG OFFENCES
There are three types of possession: (1) actual possession, (2) constructive possession and (3) joint possession. These are defined under section 4 of the Criminal Code and adopted under section 2 of the Controlled Drugs and Substances Act.
To prove someone is in actual possession of a drug, the Crown must establish beyond a reasonable doubt that the accused had knowledge of what the item is as well as a degree of control over the item. To prove constructive possession, the Crown must establish beyond a reasonable doubt that the accused had knowledge of the item, intent/consent to have possession of the item and control over the item. Joint possession is a form of possession that finds multiple individuals to be in possession of a substance. To establish joint possession, the Crown must establish beyond a reasonable doubt that the accused had knowledge of the substance, consent of the accused and a degree of control over the substance.
An accused does not need to be in actual possession of illegal substances to be charged; the existence of knowledge and control over the drugs (constructive possession) is enough to be charged for a drug related offence. Knowledge and control in these circumstances will be inferred from the evidence. For example, if drugs were in a vehicle driven by an accused, it could be inferred that the accused (driver) had knowledge and control over the vehicle and therefore had knowledge and control over the drugs in the vehicle.
Possession is a hybrid offence. If prosecuted as an indictable offence, the maximum penalty ranges between 3 to 7 years in prison. If prosecuted summarily, the maximum penalty is 6 months to 1 year in prison.
TRAFFICKING OR POSSESSION FOR THE PURPOSE OF TRAFFICKING
To prove a trafficking offence, the Crown prosecutor bears the burden of establishing beyond a reasonable doubt that the accused was in possession of an illegal drug and was so with the intention of making it available to others.
The definition of trafficking is (1) to sell, administer, give, transfer, transport, send or deliver a scheduled substance, (2) to sell an authorization to obtain the substance, or (3) to offer to do any of the actions listed in either (1) or (2).
The penalty for trafficking and possession for the purposes of trafficking are the same. If convicted for trafficking a Schedule I or II substance, the maximum penalty is life imprisonment. For Schedule III substances, there is a maximum penalty of 10 years for indictable offence and 18 months for a summary offence.
IMPORT, EXPORT AND PRODUCTION
Importing and exporting and producing illegal substances is an offence under the Controlled Drugs and Substances Act. Importing is the bringing of drugs into Canada from another country, while exporting is the transportation of drugs from Canada to elsewhere. The production of drugs is the manufacturing, synthesizing or altering the physical or chemical properties of a substance, the cultivating, propagating or harvesting of a substance or any living thing from which the substance may be extracted or otherwise obtained.
The penalty for import, export and production offences is dependant on the quantity and the type of drug involved.
Drug offences are considered very serious offences and carry with them potential sentences of imprisonment. The nature of drug prosecutions are quite complex and technical. The mere presence of drugs alone does not necessarily mean the prosecutor will be able to secure a conviction. The burden is on the Crown to prove all the elements of the offence beyond a reasonable doubt including the nature of the substance and your possession.
Depending on the facts, an argument may be made seeking the exclusion of drug evidence due to a violation of the Canadian Charter of Rights and Freedoms. For example, if the police conducted a search without a warrant, evidence obtained during the search may be inadmissible as a result of the illegal search. Other defences include lack of knowledge, lack of control, duress and more. An experienced lawyer would be able to determine the best defence for your situation.
If you or someone you know has been charged with a drug related offence, contact Sack (Q.C.) and Bogle Law today for assistance.