The main source of law in Canada that governs drug offences is the Controlled Drugs and Substances Act (CDSA). The most common offences under the CDSA are:
- Possession of a Substance (section 4(1));
- Trafficking of a Substance (section 5(1));
- Possession for the purpose of Trafficking (section 5(2));
- Production of a Substance (section 7(1));
- Importing or Exporting a Substance (section 6(1)); and
- Possession of a substance for the purpose of exporting (section 6(2)).
All offences under the CDSA apply to the prohibited substances listed in the schedules of the Act. These schedules listing all of the prohibited substances can be found
at the Justice Laws website.
Possession of a Substance
It is a false belief that ownership of a substance is the same as possession. In the eyes of the law, possession is not the same as ownership. Possession simply means that
a person has:
a. knowledge of a substance; and
b. control over the substance.
Due to the law’s broad definition of possession, more than one individual can be charged and convicted for possession of the same substance.
Trafficking of a Substance
A charge of trafficking of substance is where it is alleged that the accused:
a. had possession of a substance (i.e. knowledge and control of a substance); and
b. trafficked the substance.
The typical circumstances of trafficking include:
- sending; or
This charge usually requires the Crown to demonstrate a transaction of some sort whereby the substance was transferred from one person to another.
Possession of a Substance for the Purpose of Trafficking
This offence is different from trafficking in a substance because this offence requires the Crown to prove the accused had:
a. possession of a substance (i.e. knowledge and control of a substance); and
b. the intention to traffic the substance.
This offence does not require a transaction involving a substance. The Police and Crown will look at the circumstances surrounding the possession of the substance to
suggest the intention of the accused to traffic the substance. Circumstances that may be used to suggest the accused intended to traffic the offence would be if the
following items were found in proximity of the substance:
- packaging for resale;
- score sheets;
- the manner in which the substance was packaged;
- the quantity of substance;
- cash in the vicinity of the substance; or
- communications involving the accused suggesting trafficking activities.
Producing a Substance
Producing a substance is a serious offence for which serious penalties are imposed by the courts.
Producing a substance includes to offering to produce a substance by means of obtaining the substance by any method or process including:
- using any means of altering the chemical or physical properties of the substance;
- propagating; or
- harvesting the substance or any living thing from which the substance may be extracted or otherwise obtained.
Further, the Crown must prove the accused intended to produce a prohibited substance and that the accused had actual knowledge that the substance was prohibited under the CDSA.
It is prohibited behaviour to import or export prohibited substances in Canada. The Crown must prove that the accused either brought a substance, or caused someone else to bring a substance from outside Canada into Canada or vice versa.
Penalties for Drug Offences
Just like any serious criminal offence, the consequences of a conviction of a drug related offences can be very serious punishments ranging from a fine to a possible maximum penalty of imprisonment for life.
For trafficking related offences for Schedule I and II substances, such as marijuana and substances originating from the poppy (codeine, morphine, etc.), the CDSA imposes mandatory minimum penalties. This means that the accused can be sentenced to a minimum of 1 year imprisonment if convicted.
For trafficking related offences for cocaine, the case law has set a higher standard for the minimum penalty at 2 years imprisonment as a starting point.
Mandatory minimum penalties also apply to import/export and production related offences. These penalties are more complicated and individuals facing these charges should speak with a lawyer regarding the potential mandatory minimum sentences that may apply to their circumstances.
Due to the significant sentences that can be imposed for drug related offences, it is always advisable that an individual facing drug related charges speak with a lawyer regarding the potential consequences if a conviction is entered.
Defences to Drug Related Charges
At McCarthy Law, we will review our client’s disclosure to ascertain all available defenses for our client to contest their charges. We understand the seriousness of obtaining a criminal record and convictions for drug related offences. Some aspects we will review with our clients include potential elements of the offence defenses, as well as any potential Charter of Rights and Freedoms breaches that could result in our client remaining free from a criminal conviction. Elements of the offence defenses include, but are not limited to the following:
- Prohibited Substance – can the Crown prove the substance was a prohibited Substance listed in the Schedules of the CDSA;
- Knowledge and Control – can the Crown successfully prove that our client had knowledge and control of the prohibited substance;
- Purpose of Trafficking – can the Crown prove that the substance was possessed for the purpose of trafficking, or was the substance possessed for personal use;
- Trafficking – can the Crown prove there was a transaction where the possession of the substance was transferred from one person to another?
- Charter of Rights and Freedoms defenses include, but are not limited to the following:
- Charter Rights and Caution – was our client properly read their charter rights and caution when arrested by police;
- Right to Counsel – was our client provided their right to counsel;
- Right to not be arbitrarily detained or arrested – did the officers have reasonable and probable grounds to detain or arrest our client;
- Right to be free from unreasonable search and seizure – did the officers have a warrant, or did they unreasonably search my client’s property where they would have a reasonable expectation of privacy;
- Right to life, liberty and security of the person – was out client’s fundamental rights to life liberty and security of their person violated when they were interacting with police?
These are just examples of the various defenses we will explore to further our client’s interests and ensure they obtain the best results possible.