Defending Drug Possession Charges in Toronto
Have you been charged with possession of marijuana, hashish, cocaine, heroin, GHB, ecstasy, magic mushrooms, ketamine or other illegal drug? This article is directed towards those persons charged with drug possession, or possession of a drug for the purpose of trafficking. If you are charged with either of these criminal offences, you should consult a criminal lawyer.
Defending drug possession cases
In a drug possession case, the crown must prove a number of different things:
1) Nature of the substance alleged to be an illegal drug:
In any drug prosecution, the Crown Attorney must first prove that the item in question is actually an illegal drug as defined by the Controlled Drugs and Substances Act. Absent a specific medical exemption, It is illegal to possess any of the following drugs in Canada: marijuana, hashish, cocaine, heroin, GHB, ecstasy, magic mushrooms, ketamine, lsd, crystal meth, opium or any other drug listed in Schedule I, Schedule II, Schedule III or Schedule IV of the Controlled Drugs and Substances Act.
Typically, the Crown will prove the nature of the substance alleged to be an illegal drug by tendering into evidence the "Certificate of Analysis" of a qualified analyst from Health Canada who has tested the narcotic or by calling the analyst to give direct evidence on the issue.
2) Proof of possession:
The Crown Attorney must also prove that the person charged was in legal "possession" of the illicit drug. The Controlled Drugs and Substances Act provides a definition of possession as follows:
A person has anything in possession when he has it in his personal possession or knowingly:
[actual possession]
(i) has it in the actual possession or custody of another person, or
[constructive possession]
(ii) has it in any place, whether or not that place belongs to or is occupied by him, for the use or benefit of himself or another person; and
[joint possession]
(b) where one of two or more persons, with the knowledge and consent of the rest, has anything in his custody or possession, it shall be deemed to be in the custody and possession of each and all of them.
Actual Possession:
To prove someone is in actual possession of a drug, the Crown must show (i) knowledge of what the item is; and (ii) some measure of control over the item.
(i) knowledge of the illegal drug
Simply having an illegal drug in your pocket may not establish actual possession if a doubt can be raised on the issue of knowledge that the item existed. For example, one may wear a piece of clothing (such as a jacket or pair of jeans) belonging to friend or relative without knowledge of what is contained within the pockets of the clothing. This person cannot be said to have knowledge of the illegal drug.
Without knowledge that the drug was there in the first place, one cannot properly be found guilty of the offence of possession.
Another scenario may exist where the person was aware of the item alleged to be in their possession but they did not know the item was an illegal drug. For example, someone in possession of a bag or marijuana, mistakenly thinking it was a bag of oregano or another type of herb used for cooking cannot be said to have the requisite knowledge to establish possession of the illicit narcotic.
However, mistaking one type of illegal drug for another type of illegal drug is not a proper defense to possession of a narcotic. A person will not be acquitted of possession where he or she asserts that they believed they were in possession of cocaine when they were actually in possession of heroin.
(ii) control over the illegal drug
Even if the Crown can prove that a person had knowledge of the illegal drug, the Crown must also prove that the person exercised some measure of control over the drug.
Constructive Possession
Even if someone doesn't actually have drugs located on their person, they can potentially be found to be in possession of the drugs if it can be determined that they had both knowledge and control over the drugs.
Because the accused is not in actual, physical possession of the drugs in cases of constructive possession, the necessary knowledge and control must be inferred from other evidence.
For example, if drugs are found in the glove box of a motor vehicle owned and driven by the accused at the time the drugs were seized, it may be argued that the driver had the requisite knowledge and control over the vehicle, thus establishing he was in possession of the drugs located within the vehicle. The same can be said for an item found inside an accused person's bedroom or suitcase.
However, in the same scenario where drugs are located in the glove box, a passenger in the vehicle may not be found guilty of constructive possession as they may be able to raise a doubt as to whether they had either knowledge or control over the illegal substance or the vehicle in which the substance was found.
Joint Possession
Joint possession of an illegal drug can be found where one of two or more persons is found in possession of a drug with the knowledge and consent of the others.
The key difference between joint possession and constructive possession is that constructive possession requires an element of control over the item whereas joint possession does not require control but rather the consent that someone else exercise control over the item.
A person may be found guilty of joint possession where the evidence reveals that they permitted someone else to hide drugs inside their apartment or store drugs in the glove box of their motor vehicle.
Constitutional Challenges in Drug Possession Cases
Quite often, the issue at trial is not whether the Crown can prove the item is an illegal drug or prove that the accused was in possession of the drug. The issue becomes whether or not the police legally obtained the evidence used to establish proof of possession of the narcotic in accordance with constitutional standards.
In Canada, every citizen enjoys the right to be free from unreasonable police searches and the right not to be stopped and detained by the police without a valid reason. Despite these protections, Canadian citizens -especially those from minority groups- are constantly subjected to arbitrary police stops and illegal searches of their homes, vehicles and personal property.
When the police obtain evidence through the violation of a person's constitutional rights, the Court may conclude that any evidence obtained from the illegal stop or search should not be admitted in the accused person's trial. This is a special type of application brought before the judge at trial called a "Charter challenge" -referring to the constitutional protections found in the Canadian Charter of Rights and Freedoms.
I have argued several successful charter challenges resulting in the exclusion of evidence in drug cases on the basis that the police lacked a valid reason to stop and search the person leading to the discovery of the drugs. Some examples of these Charter challenges in drug possession cases can be found on my Recent Successes page.
Possession for the Purpose of Trafficking
If someone is charged with possession of a narcotic for the purpose of trafficking, the Crown must first prove that item found was an illegal drug and that he or she was in possession of that drug.
Additionally, the Crown must prove that the person possessed the drugs with the intention to sell (or give) it to others.
in determining whether or not a person is in possession of a drug for the purpose of trafficking, the Court will examine a number of factors including:
a) the quantity of drugs involved;
b) the value of the drugs involved;
c) the drug paraphernalia found;
d) the amount of money found;
e) the denomination of the money found;
f) any statement of the accused;
g) any association with known drug traffickers;
h) any unexplained wealth; and
i) the credibility of defence witnesses.
Simply being found in possession of a large amount of any drug may lead to a charge of possession for the purpose of trafficking- but it will not necessarily lead to a conviction on that charge. For example, an accused person may testify at trial that they regularly consume a particular drug and therefore possessed a large amount of it to ensure they would have a continuous supply of the illicit substance for their personal use. An admission such as this will not provide a defense to a possession charge, but may lead the judge to reduce the charge from possession for the purpose of trafficking to the less serious charge of simple possession. This type of reduction in the charge may have a significant impact on the type of sentence imposed by the Judge.
Sentences for possession and possession for the purpose of trafficking charges
It is difficult to estimate the type of sentence a Judge may impose for being in possession of a narcotic. Generally, the Court examines the circumstances of the offender in conjunction with the type of drug, the quantity of the drug and the reason the accused was in possession of the item. The Court generally treats drug addicts with more leniency than those persons alleged to possess drugs for commercial gain. Each case is fact specific and requires a detailed analysis of all of the factors in order to determine an appropriate sentence range. Typically, a person found in possession of "hard drugs" such as cocaine and heroin are more likely to attract a jail sentence than those found in possession of "soft drugs" such as marijuana or hashish.
If you, or someone you know if facing a drug possession charge in Toronto, or anywhere else in Ontario, you should immediately contact a lawyer to discuss the best way to successfully defend against the allegation. For a free consultation, I can be reached at (416) 297-7200.
Have you been charged with possession of marijuana, hashish, cocaine, heroin, GHB, ecstasy, magic mushrooms, ketamine or other illegal drug? This article is directed towards those persons charged with drug possession, or possession of a drug for the purpose of trafficking. If you are charged with either of these criminal offences, you should consult a criminal lawyer.
Defending drug possession cases
In a drug possession case, the crown must prove a number of different things:
1) Nature of the substance alleged to be an illegal drug:
In any drug prosecution, the Crown Attorney must first prove that the item in question is actually an illegal drug as defined by the Controlled Drugs and Substances Act. Absent a specific medical exemption, It is illegal to possess any of the following drugs in Canada: marijuana, hashish, cocaine, heroin, GHB, ecstasy, magic mushrooms, ketamine, lsd, crystal meth, opium or any other drug listed in Schedule I, Schedule II, Schedule III or Schedule IV of the Controlled Drugs and Substances Act.
Typically, the Crown will prove the nature of the substance alleged to be an illegal drug by tendering into evidence the "Certificate of Analysis" of a qualified analyst from Health Canada who has tested the narcotic or by calling the analyst to give direct evidence on the issue.
2) Proof of possession:
The Crown Attorney must also prove that the person charged was in legal "possession" of the illicit drug. The Controlled Drugs and Substances Act provides a definition of possession as follows:
A person has anything in possession when he has it in his personal possession or knowingly:
[actual possession]
(i) has it in the actual possession or custody of another person, or
[constructive possession]
(ii) has it in any place, whether or not that place belongs to or is occupied by him, for the use or benefit of himself or another person; and
[joint possession]
(b) where one of two or more persons, with the knowledge and consent of the rest, has anything in his custody or possession, it shall be deemed to be in the custody and possession of each and all of them.
Actual Possession:
To prove someone is in actual possession of a drug, the Crown must show (i) knowledge of what the item is; and (ii) some measure of control over the item.
(i) knowledge of the illegal drug
Simply having an illegal drug in your pocket may not establish actual possession if a doubt can be raised on the issue of knowledge that the item existed. For example, one may wear a piece of clothing (such as a jacket or pair of jeans) belonging to friend or relative without knowledge of what is contained within the pockets of the clothing. This person cannot be said to have knowledge of the illegal drug.
Without knowledge that the drug was there in the first place, one cannot properly be found guilty of the offence of possession.
Another scenario may exist where the person was aware of the item alleged to be in their possession but they did not know the item was an illegal drug. For example, someone in possession of a bag or marijuana, mistakenly thinking it was a bag of oregano or another type of herb used for cooking cannot be said to have the requisite knowledge to establish possession of the illicit narcotic.
However, mistaking one type of illegal drug for another type of illegal drug is not a proper defense to possession of a narcotic. A person will not be acquitted of possession where he or she asserts that they believed they were in possession of cocaine when they were actually in possession of heroin.
(ii) control over the illegal drug
Even if the Crown can prove that a person had knowledge of the illegal drug, the Crown must also prove that the person exercised some measure of control over the drug.
Constructive Possession
Even if someone doesn't actually have drugs located on their person, they can potentially be found to be in possession of the drugs if it can be determined that they had both knowledge and control over the drugs.
Because the accused is not in actual, physical possession of the drugs in cases of constructive possession, the necessary knowledge and control must be inferred from other evidence.
For example, if drugs are found in the glove box of a motor vehicle owned and driven by the accused at the time the drugs were seized, it may be argued that the driver had the requisite knowledge and control over the vehicle, thus establishing he was in possession of the drugs located within the vehicle. The same can be said for an item found inside an accused person's bedroom or suitcase.
However, in the same scenario where drugs are located in the glove box, a passenger in the vehicle may not be found guilty of constructive possession as they may be able to raise a doubt as to whether they had either knowledge or control over the illegal substance or the vehicle in which the substance was found.
Joint Possession
Joint possession of an illegal drug can be found where one of two or more persons is found in possession of a drug with the knowledge and consent of the others.
The key difference between joint possession and constructive possession is that constructive possession requires an element of control over the item whereas joint possession does not require control but rather the consent that someone else exercise control over the item.
A person may be found guilty of joint possession where the evidence reveals that they permitted someone else to hide drugs inside their apartment or store drugs in the glove box of their motor vehicle.
Constitutional Challenges in Drug Possession Cases
Quite often, the issue at trial is not whether the Crown can prove the item is an illegal drug or prove that the accused was in possession of the drug. The issue becomes whether or not the police legally obtained the evidence used to establish proof of possession of the narcotic in accordance with constitutional standards.
In Canada, every citizen enjoys the right to be free from unreasonable police searches and the right not to be stopped and detained by the police without a valid reason. Despite these protections, Canadian citizens -especially those from minority groups- are constantly subjected to arbitrary police stops and illegal searches of their homes, vehicles and personal property.
When the police obtain evidence through the violation of a person's constitutional rights, the Court may conclude that any evidence obtained from the illegal stop or search should not be admitted in the accused person's trial. This is a special type of application brought before the judge at trial called a "Charter challenge" -referring to the constitutional protections found in the Canadian Charter of Rights and Freedoms.
I have argued several successful charter challenges resulting in the exclusion of evidence in drug cases on the basis that the police lacked a valid reason to stop and search the person leading to the discovery of the drugs. Some examples of these Charter challenges in drug possession cases can be found on my Recent Successes page.
Possession for the Purpose of Trafficking
If someone is charged with possession of a narcotic for the purpose of trafficking, the Crown must first prove that item found was an illegal drug and that he or she was in possession of that drug.
Additionally, the Crown must prove that the person possessed the drugs with the intention to sell (or give) it to others.
in determining whether or not a person is in possession of a drug for the purpose of trafficking, the Court will examine a number of factors including:
a) the quantity of drugs involved;
b) the value of the drugs involved;
c) the drug paraphernalia found;
d) the amount of money found;
e) the denomination of the money found;
f) any statement of the accused;
g) any association with known drug traffickers;
h) any unexplained wealth; and
i) the credibility of defence witnesses.
Simply being found in possession of a large amount of any drug may lead to a charge of possession for the purpose of trafficking- but it will not necessarily lead to a conviction on that charge. For example, an accused person may testify at trial that they regularly consume a particular drug and therefore possessed a large amount of it to ensure they would have a continuous supply of the illicit substance for their personal use. An admission such as this will not provide a defense to a possession charge, but may lead the judge to reduce the charge from possession for the purpose of trafficking to the less serious charge of simple possession. This type of reduction in the charge may have a significant impact on the type of sentence imposed by the Judge.
Sentences for possession and possession for the purpose of trafficking charges
It is difficult to estimate the type of sentence a Judge may impose for being in possession of a narcotic. Generally, the Court examines the circumstances of the offender in conjunction with the type of drug, the quantity of the drug and the reason the accused was in possession of the item. The Court generally treats drug addicts with more leniency than those persons alleged to possess drugs for commercial gain. Each case is fact specific and requires a detailed analysis of all of the factors in order to determine an appropriate sentence range. Typically, a person found in possession of "hard drugs" such as cocaine and heroin are more likely to attract a jail sentence than those found in possession of "soft drugs" such as marijuana or hashish.
If you, or someone you know if facing a drug possession charge in Toronto, or anywhere else in Ontario, you should immediately contact a lawyer to discuss the best way to successfully defend against the allegation. For a free consultation, I can be reached at (416) 297-7200.
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