Drug Possession (Offence)

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 12 months of the offence (786(2))
Jurisdiction	Prov. Court; Sup. Court w/ Jury (); Sup. Court w/ Judge-alone (); * Must be indictable. ; Prov. Court only (Sch II)
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;

< Criminal Law/Sentencing
< Offences

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)	Preliminary Inquiry
s. 4(3) CDSA [possession of controlled substances – Schedule I (opiates and related)]	Indictable Offence(s)
s. 4(4) CDSA [possession of controlled substances – Schedule II (cannaboids)]	Indictable Offence(s)
s. 4(6) CDSA [possession of controlled substances – Schedule III (psychedelics)]	Indictable Offence(s)
s. 4(2) and 4(7)(a)(i) or (b) CDSA [seek or obtain (with or without scrip) of Schedule I (opiates and related)]	Indictable Offence(s)
s. 4(2) and 4(7)(a)(ii) or (b) CDSA [seek or obtain (with or without scrip) of Schedule II (cannaboids)]	Indictable Offence(s)
s. 4(2) and 4(7)(a)(iii) or (b) CDSA [seek or obtain (with or without scrip) of Schedule III (psychedelics)]	Indictable Offence(s)
s. 4(2) and 4(7)(a)(iv) or (b) CDSA [seek or obtain (with or without scrip) of Schedule IV (barbiturates)]	Indictable Offence(s)

Offences under s. 4(4) CDSA [possession of controlled substances – Schedule II (cannaboids)] 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 appearance notice without arrest under s. 497 or a summons. If arrested, he can be released by the arresting officer under s. 498 or 499 on an undertaking with or without conditions. He can also be released by a justice under s. 515.

Reverse Onus Bail

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 weapon, being 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)).

And, regardless of Crown election, if the offence alleged was one:

where the offence was an allegation of violence against an "intimate partner" and the accused had been previously convicted of an offence of violence against an "intimate partner" (s. 515(6)(b.1));
where the offence alleged is a breach under s. 145(2) to (5) while (s. 515(6)(c));
where the offence committed (or conspired to commit) was an offence under s. 5 to 7 of the CDSA that is punishable by life imprisonment (s. 515(6)(d));

Publication Bans

For all criminal or regulatory prosecutions, 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

Offence(s)	Wiretap Eligible s. 183	Dangerous Offender Designated Offence s. 752	Serious Personal Injury Offence s. 752	AG Consent Required	Serious Criminality Offence s. 36 IRPA
s. 4(4) [possession of controlled substances – Schedule II (cannaboids)]

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

PART I

Offences and Punishment

Particular Offences

Possession of substance

4 (1) Except as authorized under the regulations, no person shall possess a substance included in Schedule I [opiates and related], II [cannaboids] or III [psychedelics].

Obtaining substance

(2) No person shall seek or obtain

(a) a substance included in Schedule I

[opiates and related], II [cannaboids], III [psychedelics] or IV [barbiturates], or

(b) an authorization to obtain a substance included in Schedule I

[opiates and related], II [cannaboids], III [psychedelics] or IV [barbiturates] 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) [possession of substance] where the subject-matter of the offence is a substance included in Schedule I [opiates and related]

(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) [possession of substance] where the subject-matter of the offence is a substance included in Schedule II [cannaboids]

(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.

(5) [Repealed, 2018, c. 16, s. 195]

Punishment

(6) Every person who contravenes subsection (1) [possession of substance] where the subject-matter of the offence is a substance included in Schedule III [psychedelics]

(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) [obtaining substance from practitioner]

(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

[opiates and related],

(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

[cannaboids],

(iii) to imprisonment for a term not exceeding three years, where the subject-matter of the offence is a substance included in Schedule III

[psychedelics], 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

[barbiturates]; 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.

(8) [Repealed, 2018, c. 16, s. 195]
1996, c. 19, s. 4; 2018, c. 16, s. 195.
[annotation(s) added]

– CDSA

Note up: 4 (1), (2), (3), (4), (6), and (7)

Draft Form of Charges

See also: Draft Form of Charges

		Pre-ambles
		"THAT [accused full name] stands charged that, between the <DATE> day of <MONTH>, <YEAR> and <DATE> day of <MONTH>, <YEAR>***, at or near <COMMUNITY/TOWN/CITY>, <PROVINCE>, he [or she]..." OR
		"THAT [accused full name] stands charged that, on or about the <DATE> day of <MONTH>, <YEAR>, at or near <COMMUNITY/TOWN/CITY>, <PROVINCE>, he [or she]..." OR
		"AND FURTHER at the same time and place aforesaid, he [or she]..."
Code Section	Subject of Offence	Draft Wording
		"..., contrary to section 4 of the Controlled Drugs and Substances Act.

Proof of the Offence

Proving drug possession under s. 4(1) CDSA should include: ☐ identity of accused as culprit ☐ date and time of the incident ☐ jurisdiction (incl. region and province) ☐ the culprit possessed a substance (knowledge, consent, control) ☐ Substance is a Control Substance under the CDSA, Schedule I, II or III (certificate of analysis, chain of possession, amounts found) ☐ possession of Substance was not authorized under the CDSA regulation	Proving obtaining a substance under s. 4(2) CDSA should include: ☐ identity of accused as culprit ☐ date and time of the incident ☐ jurisdiction (incl. region and province) ☐ the culprit sought or obtained a substance; ☐ 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" ☐ the culprit seek to obtain "from a practitioner" ☐ 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

The offence described in s. 4(2)(a) is oftne known as "double doctoring".

Knowledge of Drug

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]

Simply having knowledge of a package containing a "steroid" may be insufficient to infer knowledge of the substance as being a steroid listed in the CDSA Schedules.^[3]

↑ R v Blondin (1970) 2 CCC (2d) 118 (BCCA), 1970 CanLII 1006 (BC CA), per Davey CJ
↑ R v Burgess, 1969 CanLII 467 (ON CA), [1970] 3 CCC 268 (ONCA), per Brooke JA
↑ e.g. R v States, 2017 NSSC 276 (CanLII), per Wood J

Jurisdiction

Where the drug is under Schedule II, the offence is an absolute jurisdiction offence and must be tried in provincial court.^[1]

↑ see s. 553

Defences

De Minimus Non Curat Lex

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

Offence(s)	Victim Notice of Agreement s. 606(4.1) [SPIO]	Victim Queried for Interest in Agreement s. 606(4.2) [5+ years]	Victim Notice for Restitution s. 737.1	Victim Notice of Impact Statement s. 722(2)
s. 4 [possession of controlled substances]

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 incarceration (Indictment) / $1,000 or 6 months jail	4(7)(a)(iv) or (b)(i)
IV	Any	practitioner	One or more	18 months incarceration (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 seriously 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 the 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 discretionary surcharge under s. 737 of 30% of any fine order imposed, $100 per summary conviction or $200 per indictable conviction. If the offence occurs on or after October 23, 2013, the order has smaller minimum amounts (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 His Majesty the King on application of the Crown. NB: does not* apply to summary offences*.
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. NB: does not* apply to summary offences*.

Record Suspensions and Pardons

Convictions under s. 4 CDSA are eligible for record suspensions pursuant to s. 3 and 4 of the Criminal Records Act after 5 years after the expiration of sentence for summary conviction offences and 10 years after the expiration of sentence for all other offences. The offender may not have the record suspended where the offender was (1) convicted of 3 or more offences with a maximum penalty of life, and (2) for each 3 offences he "was sentenced to imprisonment for two years or more".

History

History of Drug Offences