Simple Drug Possession

Drug offences are governed primarily by the Controlled Drugs and Substances Act (CDSA). Section 4(1) sets out the offence of simple drug possession. It stipulates that possession of Schedule I, II and III drugs for personal use are illegal.

To prove simple possession of an illegal substance, the Crown would have to show that the accused had both knowledge and control of the substance. Generally speaking, the accused individual would have had to know that the substance in question was illegal.  Moreover, the accused would have had to have some degree of physical power or authority (i.e., control) over the substance.

Types of Drugs and Penalties for Simple Possession

• • Schedule I drugs: these are typically the ‘hard’ types of drugs, including; heroin, cocaine, amphetamines and fentanyl. If charged for possessing a Schedule I drug, you could be liable for a term of imprisonment of no more than seven years if the Crown elects to proceed by indictment.  In the case of a summary election, you could be held liable for a fine not exceeding one thousand dollars, or to a term of imprisonment not exceeding six months (or both), if it is first offence.  For subsequent offences, you could be deemed liable for a fine not exceeding two thousand dollars, or to a term of imprisonment not exceeding one year (or both).
  • Schedule II drugs: these include mainly synthetic cannabinoids. If charged for possessing a Schedule II drug, you could be liable for a term of imprisonment of no more than five years less a day if the Crown elects to proceed by indictment.  In the case of a summary election, you could be held liable for a fine not exceeding one thousand dollars, or to a term of imprisonment not exceeding six months (or both), if it is a first offence.  For subsequent offences, you could be deemed liable for a fine not exceeding two thousand dollars, or to a term of imprisonment for a term not exceeding one year (or both).
  • Schedule III drugs: these drugs are considered to be less harmful, and as such carry lower prison sentences. Schedule III drugs primarily include hallucinogens such as psylocibin, mescaline, PCP derivatives and designer drugs such as LSD and ecstasy.  If charged for possessing a Schedule III drug, you could be liable for a term of imprisonment of no more than three years if the Crown elects to proceed by indictment.  In the case of a summary election, you could be held liable for a fine not exceeding one thousand dollars or to a term of imprisonment not exceeding six months (or both), if it is a first offence.  For subsequent offences, you could be deemed liable for a fine not exceeding two thousand dollars, or to a term of imprisonment for a term not exceeding one year (or both).

Drug Trafficking and Possession for the Purpose of Trafficking

Sections 5(1) and (2) of the CDSA state that no person shall traffic a substance identified in Schedules I-V, nor possess such substances for the purpose of trafficking.

• • In order to prove possession for the purpose of trafficking, the Crown must show that the accused individual had knowledge and control of the substance (see simple possession above), and that the accused at least intended to traffic said substance, even if they did not actually do so.
  • In order to prove trafficking charges, the Crown must show that the accused was involved in the business of actually trafficking drugs. In reaching such a conclusion, factors such as the quantity of drugs found on the accused, the presence of drug paraphernalia, the amount of money found and any association with known drug traffickers may be examined.

Drug Trafficking Charges Sentencing

There are significant sentencing ranges available for such charges. The length of the sentence will be impacted by the type of drug that was to be trafficked, as well as the quantity of the drugs found.

If an accused is charged with trafficking, or possessing for purposes of trafficking of a Schedule I or II substance, the Crown will always proceed by indictment. For Schedule III or IV drugs, the Crown may proceed by indictment or summarily.

• • For trafficking a Schedule I or II substance, the maximum penalty is life in prison, with minimum penalties of one to two years depending on a host of factors.
  • For trafficking a Schedule III substance, the accused may be liable for a prison term not exceeding 10 years if the Crown proceeds by indictment, and a term not exceeding 18 months if the Crown proceeds summarily.
  • For trafficking a Schedule IV substance (barbiturates, steroids), the accused may be liable for a prison term not exceeding three years if the Crown proceeds by indictment, and a term not exceeding one year if the Crown proceeds summarily.