For those individuals who have been charged with drug possession, or possession for the purpose of
trafficking, it is in your best interest to contact a criminal lawyer in order to evaluate your options.
Impact Law has represented individuals who have been charged with possession and trafficking of
cocaine, heroin, ecstasy, marijuana, hashish, speed, GHB, PCP, Doda (poppy seeds), magic mushrooms,
and ketamine or any other drug listed in Schedule I, Schedule II, Schedule III or Schedule IV of the
Controlled Drugs and Substances Act.
Elements to the Offence of Possession of a Controlled Substance (Drugs):
As with all aspects of our criminal justice system, in order to successfully convict an individual before the
criminal court, the Crown Attorney must prove the basic elements of the offence beyond a reasonable
In order to prove the offence of Possession of a controlled substance (Drugs) the Crown Attorney must
prove that the nature of the substance is in fact illegal drug, as defined by the Controlled Drugs and
Substances Act. (CDSA).
‘Certificate of Analysis’
In order to save court time and court costs, and for the ease of prosecution, the Crown Attorney will
generally not call an expert at trial to prove the fact that the substance seized is a controlled substance.
Instead, the Crown typically will rely on a ‘Certificate of Analysis’ which is a document that is certified by
a qualified analyst from Health Canada. What this document means in laymen terms is that the
substance seized has been tested by requisite specialist, and that the specialist must find that the
substance is in fact illegal or a controlled substance. Failure to provide this certificate along with failure
to call the analyst to the stand at Trial will lead to a dismissal of charges, as the Crown Attorney must
prove that the substance seized was in fact a drug.
In order to be found guilty of a possession of drugs charge, the individual also must be found to be in
legal ‘possession’ of the illicit substance/drug. In order to be found in possession an individual must be
found to have knowledge of the drug and be in control of the drug as well. Below is a brief explanation
of the legal principles of possession, knowledge and control.
Legal Principles of Possession, Knowledge and Control
If one is found with drugs on their person, the Crown must go beyond the simple requirement to prove
that individual possessed the drugs on his/her person. In fact, the Crown must also prove that the
individual had knowledge that substance was in fact illegal/illicit and that it existed. If the Crown is
unable to prove that the individual had knowledge that the drugs existed, or even that the substance
was illicit, they will have difficulty proving the offence before the court.
It is important to note that individuals can be found guilty for offences where they are not in actual
possession of the drug, but instead in ‘joint possession’ or ‘constructive possession’ of the substance.
These are important principles of law. For instance, if an individual is in a car, and there is an open bag
of marihuana in the vehicle that is owned by the driver, the passenger still may be found guilty of
possession of that drug if it can be proven that there was knowledge and control of that drug. However,
even where it can be proven that the individual did not have ‘control’ over the drug, he still may be
found to be in ‘joint’ possession of the drugs if it can be proven that he/she was complicit in the
planning or involved in the offence in any manner (hiding/holding/buying).
‘Control’ of a Drug
The question then arises, how the court defines the legal concept of ‘control’ of a drug. Constructive
possession of a drug can be found even where the individual is not in actual possession of the drug,
however, has sufficient knowledge and control over the drugs. Ie. An individual may be found to
constructively possess drugs located in their bedroom, even though they are not present or home when
the drugs are located. The fact that the drugs were found in the individuals home, would imply that the
individual was complicit in moving/storing the drugs, and therefore had some level of knowledge and
control over the substance. However, if reasonable doubt can be raised with respect to the individual’s
involvement in the presence of the drugs ie. who had access to the bedroom etc. he/she may be found
not guilty of the offence.
Charter Challenges and Other Defences to Possession of Drug Cases
In Canada, under the Charter of Rights and Freedoms, every individual enjoys the right to be free from
unreasonable state searches and arbitrary detainment from the police and state apparatus. However,
these freedom and liberties are not always respected by the state, and in fact, the law recognizes the
fact the police may in some instances over step their legal boundaries.
For that reason Charter challenges are an effective manner to address situations where the state
apparatus ie. the police, RCMP, or OPP, overstep their legal boundaries by way of illegal searches and
unlawful detainments. When in fact the court does find an infringement on an individual’s right to
freedom or liberty, the court may exclude all evidence seized as a result of that illegal stop/search.
Even in cases where it appears that the drugs were properly seized, ie. by way of warrant, it may still be
possible to challenge the warrant for being i) improperly obtained in that the officers relied on
inaccurate information in obtaining the warrant; or ii) where the officers acted outside of the scope of
the warrant and iii) where the judge acted outside of his/her jurisdiction in authorized the warrant;
Possession for the Purpose of Trafficking
This is a more series offence than simple possession, in that under this offence, the individual is deemed
to be in the possession of the drug with the intention to sell the drug to another individual. Therefore it
is not a requirement for the Crown to prove that drugs were actually trafficked, instead, it is sufficient
for the Crown to prove the intention to traffic the drugs in the near future.
When determining a sentence for the possession for the purpose of trafficking, the court will take into
account a number of factors including: the quantity of drugs involved; the value of the drugs involved;
the drug paraphernalia found; the amount of money found; the denomination of the money found; any
statement of the accused; any association with known drug traffickers; any unexplained wealth; and the
credibility of defence witnesses. Sentences can range anywhere from jail sentence, to sentences served
in the community, to fines, to diversion.
The court will also take into account an individual’s personal consumption habits/addictions on the part
of the individual. If it can be proven that the large quantity of drugs was in fact for personal use over
commercial use (sale of drugs) then the judge may be in the position to agree to a lower sentence or
even reduce the charges to simple possession whereby the sentence would be much more minimal.