Drug Possession (Offence)

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Drug Possession
s. 4 of the Controlled Drugs and Substances Act
Election / Plea
Crown Election Hybrid
Summary (<1g res. or 10g mj)
summary proceedings must initiate within 6 months of the offence (786(2))
Jurisdiction Prov. Court

Sup. Court w/ Jury (*)
Sup. Court w/ Judge-alone (*)

* Must be indictable. Preliminary inquiry also available.
Prov. Court only (Sch II)
Types of Release Release by Officer, Officer-in-charge, or Judge
Summary Dispositions
Avail. Disp. Discharge (730)

Suspended Sentence (731(1)(a))
Fine (734)
Fine + Probation (731(1)(b))
Jail (718.3, 787)
Jail + Probation (731(1)(b))
Jail + Fine (734)

Conditional Sentence (742.1)
Minimum varies
Maximum varies
Indictable Dispositions
Avail. Disp. same as summary
Minimum varies
Maximum varies
Reference
Offence Elements
Sentence Digests

This concerns possession of drugs for personal use. For charges related to possession for the purpose of trafficking, see Drug Trafficking.

Overview

Offences relating to drug possession are found in Part I of the Controlled Drugs and Substances Act relating to "Offences and Punishment".

Pleadings

Offence
Section
Offence
Type
Crown Election Defence Election
s. 536(2)
s. 4(4)(a) CDSA [Schedule II] Indictable Offence(s) Yes No, Absolute Jurisdiction
s. 4 CDSA [Schedule I, III and IV] Indictable Offence(s) Yes Yes

Offences under s. 4(4)(a) [Schedule II] are absolute jurisdiction offences under s. 553(a) and so does not have a defence election of court. It must be tried by a provincial court judge.

Release
When charged under s. 4 [all Schedules], the accused can be given an attendance notice without arrest under s. 496 or a summons. If arrested, he can be released by the arresting officer under s. 497 on a attendance notice or by an officer-in-charge under s. 498 on a promise to appear or recognizance. He can also be released by a justice under s. 515.

If police decide to bring the accused before a Justice pursuant to s. 503, there will be a presumption against bail (i.e. a reverse onus) if the offence, prosecuted by indictment, was committed:

  • while at large under s. 515 [bail release], 679 or 680 [release pending appeal or review of appeal] (s. 515(6)(a)(i));
  • "for the benefit of, at the direction of, or in association" with a criminal organization (s. 515(6)(a)(ii));
  • where the offence involved a firearm, cross-bow, prohibited weapon restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance, while the accused was subject to a prohibition order preventing possession of these items (s. 515(6)(a)(viii)); or
  • where the accused is not "ordinarily a resident in Canada" (s. 515(6)(b)).

Publication Bans
For all offences there is a discretionary general publication ban available on application of the Crown, victim or witness to prohibit the publishing of "any information that could identify the victim or witness" under s. 486.5(1) where it is "necessary" for the "proper administration of justice". Other available publication bans include prohibitions for publishing evidence or other information arising from a bail hearing (s. 517), preliminary inquiry (s. 539) or jury trial (s. 648). There is a mandatory publication ban in all youth prosecutions on information tending to identify young accused under s. 110 of the YCJA or young victims under s. 111 of the YCJA.

Offence Designations
Under s. 8 of the Controlled Drugs and Substances Act, the Court is not required to impose a mandatory minimum sentence unless notice is given before plea.

See below in Ancillary Sentencing Orders for details on designations relating to sentencing orders.

Offence Wording

Possession of substance
4. (1) Except as authorized under the regulations, no person shall possess a substance included in Schedule I, II or III.
Obtaining substance
(2) No person shall seek or obtain

(a) a substance included in Schedule I, II, III or IV, or
(b) an authorization to obtain a substance included in Schedule I, II, III or IV

from a practitioner, unless the person discloses to the practitioner particulars relating to the acquisition by the person of every substance in those Schedules, and of every authorization to obtain such substances, from any other practitioner within the preceding thirty days.
Punishment
(3) Every person who contravenes subsection (1) where the subject-matter of the offence is a substance included in Schedule I

(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding seven years; or
(b) is guilty of an offence punishable on summary conviction and liable
(i) for a first offence, to a fine not exceeding one thousand dollars or to imprisonment for a term not exceeding six months, or to both, and
(ii) for a subsequent offence, to a fine not exceeding two thousand dollars or to imprisonment for a term not exceeding one year, or to both.

Punishment
(4) Subject to subsection (5), every person who contravenes subsection (1) where the subject-matter of the offence is a substance included in Schedule II

(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years less a day; or
(b) is guilty of an offence punishable on summary conviction and liable
(i) for a first offence, to a fine not exceeding one thousand dollars or to imprisonment for a term not exceeding six months, or to both, and
(ii) for a subsequent offence, to a fine not exceeding two thousand dollars or to imprisonment for a term not exceeding one year, or to both.

Punishment
(5) Every person who contravenes subsection (1) where the subject-matter of the offence is a substance included in Schedule II in an amount that does not exceed the amount set out for that substance in Schedule VIII is guilty of an offence punishable on summary conviction and liable to a fine not exceeding one thousand dollars or to imprisonment for a term not exceeding six months, or to both.
Punishment
(6) Every person who contravenes subsection (1) where the subject-matter of the offence is a substance included in Schedule III

(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding three years; or
(b) is guilty of an offence punishable on summary conviction and liable
(i) for a first offence, to a fine not exceeding one thousand dollars or to imprisonment for a term not exceeding six months, or to both, and
(ii) for a subsequent offence, to a fine not exceeding two thousand dollars or to imprisonment for a term not exceeding one year, or to both.

Punishment
(7) Every person who contravenes subsection (2)

(a) is guilty of an indictable offence and liable
(i) to imprisonment for a term not exceeding seven years, where the subject-matter of the offence is a substance included in Schedule I,
(ii) to imprisonment for a term not exceeding five years less a day, where the subject-matter of the offence is a substance included in Schedule II,
(iii) to imprisonment for a term not exceeding three years, where the subject-matter of the offence is a substance included in Schedule III, or
(iv) to imprisonment for a term not exceeding eighteen months, where the subject-matter of the offence is a substance included in Schedule IV; or
(b) is guilty of an offence punishable on summary conviction and liable
(i) for a first offence, to a fine not exceeding one thousand dollars or to imprisonment for a term not exceeding six months, or to both, and
(ii) for a subsequent offence, to a fine not exceeding two thousand dollars or to imprisonment for a term not exceeding one year, or to both.

Determination of amount
(8) For the purposes of subsection (5) and Schedule VIII, the amount of the substance means the entire amount of any mixture or substance, or the whole of any plant, that contains a detectable amount of the substance.


CDSA

Proof of the Offence

Proving drug possession under s. 4(1) CDSA should include:

  1. identity of accused as culprit
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. the culprit possessed a substance (knowledge, consent, control)
  5. Substance is a Control Substance under the CDSA, Schedule I, II or III (certificate of analysis, chain of possession, amounts found)
  6. possession of Substance was not authorized under the CDSA regulation

Proving obtaining a substance under s. 4(2) CDSA should include:

  1. identity of accused as culprit
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. the culprit sought or obtained a substance;
  5. the substance is a controlled substance under Schedule I, II, III or IV or an "authorization to obtain a substance included in Schedule I, II, III or IV"
  6. the culprit seek to obtain "from a practitioner"
  7. the person does not disclose to the practitioner the "particulars relating to the acquisition by the person of every substance in those Schedules, and of every authorization to obtain such substances, from any other practitioner within the preceding thirty days."

Interpretation of the Offence

As part of the proof of possession, the accused must have knowledge of the narcotic substance.[1] It is not necessary however to be aware of the exact type of drug, rather only be aware that it is illegal.[2]

Where the drug is under Schedule II, the offence is an absolute jurisdiction offence and must be tried in provincial court.[3]

  1. R v Blondin (1970) 2 CCC (2d) 118 (BCCA)(*no link)
  2. R v Burgess, 1969 CanLII 467 (ON CA), [1970] 3 CCC 268 (ONCA)
  3. see s. 553

Defences

Participation of Third Parties

See also: Role of the Victim and Third Parties and Testimonial Aids for Young, Disabled or Vulnerable Witnesses

Testimonial Aids
Certain persons who testify are entitled to make application for the use of testimonial aids: Exclusion of Public (s. 486), Use of a Testimonial Screen (s. 486), Access to Support Person While Testifying (s. 486.1), Close Proximity Video-link Testimony (s. 486.2), Self-Represented Cross-Examination Prohibition Order (s. 486.3), and Witness Security Order (s. 486.7).

A witness, victim or complainant may also request publication bans (s. 486.4, 486.5) and/or a Witness Identity Non-disclosure Order (s. 486.31). See also, Publication Bans, above.

On Finding of Guilt
Under s. 738, a judge must inquire from the Crown before sentencing whether "reasonable steps have been taken to provide the victims with an opportunity to indicate whether they are seeking restitution for their losses and damages".

Under s. 722(2), the judge must inquire "[a]s soon as feasible" before sentencing with the Crown "if reasonable steps have been taken to provide the victim with an opportunity to prepare" a victim impact statement. This will include any person "who has suffered, or is alleged to have suffered, physical or emotional harm, property damage or economic loss" as a result of the offence. Individuals representing a community impacted by the crime may file a statement under s. 722.2.

Sentencing Principles and Ranges

See also: Purpose and Principles of Sentencing, Sentencing Factors Relating to the Offender, and Sentencing Factors Relating to the Offence
For General Sentencing Principles for all drug offences, see Sentencing for Drug Offences

Penalties by Category

The maximum penalties are broken down as follows:

Schedule Amount Obtained From Prior Convictions Maximum Section
I Any Anyone None 7 years jail (Indictment) / $1,000 or 6 months jail 4(3)(a) or (b)(i)
I Any Anyone One or more 7 years jail (Indictment) / $2,000 or 1 year jail 4(3)(a) or (b)(ii)
I Any practitioner None 7 years jail (Indictment) / $1,000 or 6 months jail 4(7)(a)(i) or (b)(i)
I Any practitioner One or more 7 years jail (Indictment) / $2,000 or 1 year jail 4(7)(a)(i) or (b)(ii)
II > 1g resin or 30g cannabis Anyone None 5 years less a day jail (Indictment) / $1,000 or 6 months jail 4(4)(a) or (b)(i)
II > 1g resin or 30g cannabis Anyone One or more 5 years less a day jail (Indictment) / $2,000 or 1 year jail 4(4)(a) or (b)(ii)
II =< 1g resin or 30g cannabis Anyone Any $1,000 or 6 months jail 4(5)
II Any practitioner None 5 years less a day jail (Indictment) / $1,000 or 6 months jail 4(7)(a)(ii) or (b)(i)
II Any practitioner One or more 5 years less a day jail / $2,000 or 1 year jail 4(7)(a)(ii) or (b)(ii)
III Any Anyone None 7 years jail (Indictment) / $1,000 or 6 months jail 4(6)(a) or (b)(i)
III Any Anyone One or More 7 years jail (Indictment) / $2,000 or 1 year jail 4(6)(a) or (b)(ii)
III Any practitioner None 3 years jail (Indictment) / $1,000 or 6 months jail 4(7)(a)(iii) or (b)(i)
III Any practitioner One or more 3 years jail (Indictment) / $2,000 or 1 year jail 4(7)(a)(iii) or (b)(ii)
IV Any practitioner None 18 months jail (Indictment) / $1,000 or 6 months jail 4(7)(a)(iv) or (b)(i)
IV Any practitioner One or more 18 months jail (Indictment) / $2,000 or 1 year jail 4(7)(a)(iv) or (b)(ii)

Schedule I: Heroin, Cocaine, etc.

Heroin
Heroin is considered amongst the most dangerous drugs. It is treated very serious and will often attract the toughest penalties.

Cocaine


Schedule II: Marijuana, Hash, etc.

First time offenders will typically get discharges or fines. Probation can be given where the background of the offender suggests that a rehabilitation is in order.

Where there is a prior related record there can be short jail sentences given.

Schedule III: Amphetamines, Hallucinogens, etc.

Schedule IV: Barbiturates, Steroids, etc.

Ancillary Sentencing Orders

See also: Ancillary Orders

Offence-specific Orders

  • None

General Sentencing Orders

Order Conviction Description
Non-communication order while offender in custody (s. 743.21) any The judge has discretion to order that the offender be prohibited "from communicating...with any victim, witness or other person" while in custody except where the judge "considers [it] necessary" to communicate with them.
Restitution Orders (s. 738) any A discretionary Order is available for things such as the replacement value of the property; the pecuniary damages incurred from harm, expenses fleeing a domestic partner; or certain expenses arising from the commission of an offence under s.402.2 or 403.
Victim Fine Surcharge (s. 737) any A mandatory surcharge under s. 737 of 30% of any fine order imposed, $100 per summary conviction or $200 per indictable conviction. If offence occurs on or after October 23, 2013, the order is discretionary based on ability to pay and the minimum amounts are smaller (15%, $50, or $100).

General Forfeiture Orders

Forfeiture Conviction Description
Forfeiture of Proceeds of Crime (s. 462.37(1) or (2.01)) any Where there is a finding of guilt for an indictable offence under the Code or the CDSA in which property is "proceeds of crime" and offence was "committed in relation to that property", the property shall be forfeited to Her Majesty the Queen on application of the Crown.
Fine in Lieu of Forfeiture (s. 462.37(3)) any Where a Court is satisfied an order for the forfeiture of proceeds of crime under s. 462.37(1) or (2.01) can be made, but that property cannot be "made subject to an order", then the Court "may" order a fine in "an amount equal to the value of the property". Failure to pay the fine will result in a default judgement imposing a period of incarceration.
Forfeiture of Weapons or Firearms (s. 491) any Where there is finding of guilt for an offence where a "weapon, an imitation firearm, a prohibited device, any ammunition, any prohibited ammunition or an explosive substance was used in the commission of [the] offence and that thing has been seized and detained", or "that a person has committed an offence that involves, or the subject-matter of which is, a firearm, a cross-bow, a prohibited weapon, a restricted weapon, a prohibited device, ammunition, prohibited ammunition or an explosive substance has been seized and detained, that the item be an enumerated weapon or related item be connected to the offence", then there will be a mandatory forfeiture order. However, under s. 491(2), if the lawful owner "was not a party to the offence" and the judge has "no reasonable grounds to believe that the thing would or might be used in the commission of an offence", then it should be returned to the lawful owner.
Forfeiture of Offence-related Property (s. 490.1) any Where there is a finding of guilt for an indictable offence, "any property is offence-related property" where (a) by means or in respect of which an indictable offence under this Act or the Corruption of Foreign Public Officials Act is committed, (b) that is used in any manner in connection with the commission of such an offence, or (c) that is intended to be used for committing such an offence". Such property is to be forfeited to Her Majesty in right of the province.

See Also