Drug Possession and Drug Trafficking

Drug possession for even a minor drug offence or a relatively small amount of drugs can result in a fine, jail time and a criminal record.

In Canada, drug offences are codified in the Controlled Drugs and Substances Act. The act makes it illegal to possess, traffic, produce and import any drug that falls under its control. Drug offences are serious and a conviction for an offence can result in harsh penalties and could prevent you from travelling to the United States.

Examples of drugs that are prohibited by the Controlled Drugs and Substances Act include: cocaine, marijuana, heroin and ecstasy.

Types of Drug Offences: There are various drug possession and drug trafficking offences that a person can be charged with under the CDSA. Below is a summary of each offence.

Possession of a prohibited substance – It is illegal to possess a drug that is prohibited under the CDSA. A person can be in possession of an item in a number of different ways. The CDSA refers to Section 4(3) of the Criminal Code for the different ways that a person can be in possession of an item. A person will possess an item if it is in their actual possession. A person will also be in possession of an item if that person knowingly has it in the actual possession of another person or stores it in a place for his own personal use or that of another person. In addition to proving that the accused was in possession of a prohibited drug, the prosecutor must also prove that the accused knew he was in possession of the drug.

Possession of a prohibited substance for the purpose of trafficking: This offence alleges that the drugs you are alleged to be in possession of is not for your own personal use. The offence alleges that your purpose for possessing the substance is so you can traffic it. Trafficking is defined under Section 2 of the CDSA as: to sell, administer, give, transfer, transport, send or deliver the substance and includes selling an authorization to obtain the substance  Lastly, trafficking covers situations where a person offers to do anything that is listed above. In a prosecution for this type of offence, the prosecutor will often call an expert to testify about whether the amount of drugs is inconsistent with personal use.

Trafficking in a Substance – It is illegal to traffic prohibited drugs. The penalties can range from a discharge to life in prison. Trafficking is not limited to the sale of a drug but includes other actions that are listed under the definition of trafficking in the CDSA.

Importing: It is illegal to import into Canada any drug that is listed in Schedules I to VI of the CDSA.  The offence of importing is completed the moment drugs are brought onto Canadian land. The Prosecutor does not need to prove that an accused knew which prohibited drug was imported into Canada all the Prosecutor needs to show is that the accused knew they imported a prohibited drug. This means that it is not a defence to a charge of importing cocaine that the accused thought they were importing marijuana.

Production: The CDSA prohibits a person from producing any substances listed in Schedules I – IV.  The definition of produce means to obtain the substance by any method or process. This includes: manufacturing, synthesizing or using any means of altering the properties of the substance. Production also includes cultivating, propagating or harvesting the substance or any living thing that the substance may be extracted. In a prosecution for production, the prosecutor must prove that an accused grew the prohibited drug, that the accused knew that it was a specified prohibited drug and that the accused produced it.

There are numerous defences that need to be explored if you have been charged with drug possession or trafficking including applications to exclude evidence pursuant to the Canadian Charter of Rights and Freedoms. It is crucial that you allow a lawyer to review your case with you before you decide how to proceed. Contact Morrie Luft, a Toronto criminal lawyer, at 416-433-2402 for more information or to set up an appointment.