Calvin Barry Professional Corporation

FAQ for Charges of Drug Possession in Ontario

What does the prosecutor need to prove in a drug case?

The Crown Attorney must prove that the item in question involved in a drug possession case is indeed an illegal drug according to the definition set by the Controlled Drugs and Substances Act. Without a medical exemption, the following drugs are illegal to possess in Canada: cocaine, crystal meth, ecstasy, GHB, heroin, ketamine, LSD, magic mushrooms, opium and more.

The alleged illegal substance has to be proven as such by the Crown and entered into evidence with a “Certificate of Analysis” by an analyst from Health Canada after testing. A testimony from a police officer saying that something looked like an illegal drug is not enough. If the Crown Attorney forgets to enter the drug certificate into evidence, the drug case may result in an acquittal. Know that the Crown Attorney must likewise prove that the individual charged with a case was truly in possession of the illicit drug.

How Can the Crown prove actual drug possession?

The Crown needs to prove two things to prove drug possession. (1) is that the individual should know what the item is and (2), the individual must have control over it to some extent.

How can the authorities prove knowledge of illegal drugs?

Just having an illegal drug in your person is not enough to establish actual drug possession if there is any doubt regarding your knowledge of the item’s existence. For instance, if you borrowed a piece of clothing from someone and they forgot to take out some illegal drugs from the pockets. In this situation, the wearer of the clothes was truly not aware of the presence of illicit drugs. If an individual is not aware that there were drugs in the clothing, that individual cannot be found guilty of drug possession.

Another situation can be if someone simply did not know that a substance that they have is illegal. An example would be if someone was asked to carry some cocaine but the person just thought that it was either sugar or salt. Knowledge that something is an illegal substance is required to establish possession.

With the above said, mistaking narcotic drugs for another illegal substance is not a strong defence for a case of drug possession and will not lead to an acquittal.

Can I be charged with illegal drug possession if I do not own it?

Being found guilty of drug possession in Canada does not require actual ownership of the item.

Do the authorities need to prove control over the illegal drug?

The Crown is required to prove that a person charged with drug possession has some control over the drug even after it was already proved that they have knowledge of the illicit drug.

Can I be found guilty of drug charges if the drugs were found on someone else?

It is possible for someone to be guilty of drug possession even if the illicit substance is not actually on their person (actual possession) if it can be determined that they have control and knowledge of the drugs which constitutes constructive possession. The knowledge and control of the illegal substance in this scenario can be inferred from the evidence presented.

For example, someone who is driving a vehicle wherein drug was found and seized from a compartment can be accused of drug possession because the driver can see the drug and has control of the vehicle where it was found even when the accused does not own the vehicle. The same applies to when drugs are found inside someone’s luggage at the airport or if illegal substances were found in that person’s room.

However, note that in the situation described above, a passenger on the vehicle may not be guilty of constructive possession as doubt can be raised about whether the passenger has any control or knowledge of the substance or the vehicle where the illicit substance was found.

Is it possible for two individuals to be guilty of possessing the same drug?

Yes. Joint possession of an illicit drug is possible when one of two or more persons has possession of a drug with the consent and knowledge of the others.

What differentiates constructive possession and joint possession is that joint possession requires only consent that someone is in control of the illegal drug whereas constructive possession requires that a person has some level of control about the item in question.

If someone permitted another individual to hide illegal drugs in their bag or apartment as proven by evidence, that person can be found guilty of joint drug possession.

What should I do if I was subjected to an illegal search by the police?

One of the most common issues that arise in a drug case trial is whether the police obtained the evidence in a legal or illegal manner according to constitutional standards. Even if the Crown can prove that the item is indeed an illegal drug and establish that the accused has possession of the illegal substance, an illegal search is unconstitutional in Canada.

Canadian citizens are protected against unreasonable police searches as well as detention no matter who they are. When evidence has been obtained by the police by violating a person’s constitutional rights, the Court may not admit the evidence for the trial and that evidence cannot be used to prove allegations against an individual. The accused’s lawyer can bring this up to the judge as a “Charter Challenge” which refers to the constitutional protections stated in the Canadian Charter of Rights and Freedoms.

Calvin Barry is a Toronto drug possession lawyer who can successfully argue Charter Challenges to exclude illegally obtained pieces of evidence from drug cases. This is an effective defence for scenarios wherein the police did not have a valid reason to perform a search that resulted in the discovery of illegal drugs.

Can I challenge a search warrant?

It is possible to challenge the reason for issuing a warrant even when the police were carrying a valid search warrant issued by a judge to search a location where drugs were found. If a review uncovers that the original warrant was obtained with the presentation of inaccurate and unreliable information, that warrant can be ruled invalid. Evidence secured with an invalid warrant may be excluded as evidence in a trial and as a result, the case may result in a “not guilty” verdict.

What is the difference between a charge of possession for the purpose of trafficking and just possession of drugs?

Someone charged with possession of a narcotic for trafficking must be proven by the Crown that the person was indeed in possession of the drug and that the found item is illegal. In addition to this, the Crown must prove that the person found in possession of the drugs has an intent to give or sell the drugs to other individuals.

A person in possession of illegal drugs simply has the drugs but any intent to see or distribute either cannot be proven or has no basis.

What are the considerations that the court observes to assess if a person has possession of illegal drugs for the purpose of trafficking?

The factors that the Court will examine to determine if a case is possession of a drug for the purpose of trafficking or not include:

  • the amount of drugs involved
  • the monetary value of the drugs involved
  • the types and presence of drug paraphernalia found
  • the value amount of money found
  • the coinage or denomination of the money found on the accused or with the accused
  • all statements uttered by the accused
  • any association of the accused with known drug traffickers
  • any unexplained wealth of the accused; and
  • the reputation or credibility of defence witnesses

Know that a charge of possession for the purpose of trafficking may result from being found with a large amount of any illegal drug however, this doesn’t automatically mean a conviction. An accused can testify that the amount that they have is their personal stash because they are a regular consumer of the illicit drug. This type of admission will not be a valid defence against a charge of drug possession but can make a charge of drug possession for the purpose of trafficking be reduced by the judge to simply a charge of drug possession which can have a significantly lesser sentence.

A drug charge of possession for the purpose of trafficking is based on the possibility that the drugs in question will be trafficked in the future. For this charge, the Crown attorney does not need to prove that the drugs were truly sold.

What are the sentences for drug possession and drug possession for the purpose of trafficking charges?

The type of sentence that a judge may give for drug possession charges can vary because of a lot of factors. Generally, the considerations taken by the court include the quantity of the drug, the reason for the possession of the drug, and the type of drug involved. Generally speaking, drug addicts are treated with more leniency by the court as compared to individuals who are alleged to be possessing or trafficking drugs for financial gain.

Each sentence is specific to the details of the case and requires an in-depth assessment of the circumstances involved to ensure that appropriate sentences are given. Usually, individuals found to be in possession of ‘soft drugs’ are less likely to get a jail sentence as compared to individuals found to be in possession of ‘hard drugs’ such as heroin and cocaine. Individuals who were found to be in possession of huge quantities of drugs can end up facing multiple years of jail time.

Know that someone with a minor drug charge can avoid having a criminal record or have the drug charges against them withdrawn with the help of an experienced defence lawyer.

At present time, courts in Canada are now required to impose minimum imprisonment sentences for some drug charges in Canada. Contact us at Calvin Barry Law if you have specific questions about this and we will be happy to answer them for you.

Do you know someone who is facing a drug possession charge in Toronto or nearby in Ontario? Contact defence lawyer Calvin Barry today at 1-866-961-4963 to consult about the most successful ways to defend a drug charge or allegation. Our offices are open for discussion and consultation of drug related offences from 9am to 7pm.