The prosecution of drug or illegal narcotic offences is governed primarily by the Controlled Drugs and
Substances Act (CDSA). The Controlled Drugs and Substances Act outlines offences, penalties, and enforcement for illegal substances. Most CDSA offences are prosecuted by the Public Prosecution Services of Canada (PPSC), also known as the Federal Crown. In certain cases, prosecution can be delegated to the Provincial Crown.
It is the Crown’s obligation to establish the substance in question is an illegal drug as defined in the
Controlled Drugs and Substances Act (CDSA). The Crown will typically prove the nature of the substance
by presenting a “Certificate of Analyst” from a Health Canada analyst who has tested the substance.
Although unlikely, there may be a scenario in which the Crown does not tender the “Certificate of Analyst”
into evidence at trial, resulting in an acquittal. A visual identification of the substance is insufficient.
The Controlled Drugs and Substances Act (CDSA) defines several offences including, but not limited to:
- Section 4(1) – Possession of Substance
- Section 4(2) – Obtaining Substance
- Section 5(1) – Trafficking in Substance
- Section 5(2) – Possession for the Purpose of Trafficking
- Section 6(1) – Importing/Exporting
- Section 7(1) – Production of Substance
What is Possession?
To establish possession of a controlled substance under the Controlled Drugs and Substances Act in
Canada, the Crown must prove two elements: (i) the accused had knowledge of the substance, and (ii)
the accused exercised a measure of control over it.
Knowledge is critical in establishing possession. The Crown must demonstrate that the accused was
aware of the presence of the substance and its illicit nature. However, certain circumstances may negate
the element of knowledge. Some circumstances include: (i) Lack of Awareness of the Substance: If the
accused was unaware of the substance’s presence, actual possession cannot be established. (ii)
Mistaken Belief About the Substance’s Nature: Knowledge requires awareness that the substance is a
controlled drug. These principles ensure that prosecutions under the CDSA focus on the accused’s intent
and awareness, balancing legal accountability with fairness in cases of genuine mistake or lack of
knowledge.
What is Control?
In addition to knowledge of the illicit substance, the Crown must also prove the person asserted some
measure of control over the illicit substance.
Even if the accused does not have actual possession, they may still be deemed to have possession
under the doctrine of constructive possession. Constructive possession applies when the accused has
knowledge of the substance and exercises control over it, despite not physically having actual
possession. As the substance is not in the accused’s direct possession, the Crown may rely on
circumstantial evidence.
What is Joint Possession?
According to the Controlled Drugs and Substances Act (CDSA), joint possession occurs when two or
more individuals share possession of a controlled substance. To establish joint possession, the Crown
must prove that each person had (i) knowledge of the substance, (ii) a degree of control over it, and (iii)
consent or contribution to its presence or use. This concept applies to both actual possession and
constructive possession. Joint possession is often relevant in cases involving shared spaces, such as
homes, vehicles, or common areas.
Illegal Search
In certain cases, the issue is not whether the Crown can prove the illicit substance or knowledge and possession. The issue rather at trial is whether or not the police legally obtained the evidence in accordance with Constitutional standards.
In Canada, the Canadian Charter of Rights and Freedoms guarantees every citizen the right to be free
from unreasonable searches and seizures and the right not to be arbitrarily detained by law enforcement.
Despite these constitutional protections, individuals may experience arbitrary police stops and unlawful
searches of their homes, vehicles, or personal property. When evidence is obtained in violation of an
individual’s Charter rights, a court may determine that such evidence is inadmissible at trial.
What is Possession for the Purpose of Trafficking?
Possession for the Purpose of Trafficking is specifically addressed in Section 5(2) of the Controlled Drugs
and Substances Act. This offence occurs when an individual possesses a controlled substance with the
intent to traffic it, as opposed to possessing it for personal use.
Under section 5(2) of the Controlled Drugs and Substances Act, it is an offence to possess a controlled
substance listed in Schedules I to V with the intent to traffic. Trafficking is defined in section 2 of the
Controlled Drugs and Substances Act as selling, administering, giving, transferring, transporting, sending,
or delivering the substance, or offering to do any of these acts.
In addition to proving knowledge and possession, the Crown must also prove an intent to traffic. Since
intent is a mental element, it is typically inferred from circumstantial evidence. Courts may consider
factors such as quantity of the drugs, packaging, associated items, location, and may potentially hear
expert testimony. If the evidence suggests only personal use, the Crown may struggle to prove intent to
traffic, and the charge may be reduced to simple possession under Section 4 of the Controlled Drugs and
Substances Act.
If you require assistance on drug related offences, please contact us now for a confidential consultation.