POSSESSION OF SUBSTANCE (Section 4 CDSA)
Controlled Drugs and Substances Act as well as the Cannabis Act regulate drug offences in Canada.
As a general rule, it is forbidden to have in one’s possession any drug or substance designated by the law and listed in Schedules I, II and III of the CDSA. Obviously, it would be legal to possess some of the listed drugs or substances when validly obtained with a prescription made by a healthcare professional.
As for the objective gravity of the offence, possession of a substance listed in Schedule I is more serious than the possession of a substance listed in Schedule II. Those listed in Schedule II are also more serious than those listed in Schedule III.
For example, cocaine, methamphetamine and heroin are all drugs listed in Schedule I.
Consequences of possession of substance
Multiple factors must be evaluated when sentencing an offender for simple possession of a substance, the following factors being among them : the prior convictions of the offender, as well as the quantity and the nature of the substance(s) possessed.
When sentencing an offender for simple possession of a substance, the CDSA provides maximum penalties of imprisonment:
- For substances listed in Schedule I, a maximum penalty of 7 years of imprisonment is foreseen
- For substances listed in Schedule II, a maximum penalty of 5 years of imprisonment is foreseen
- For substances listed in Schedule III, a maximum penalty of 3 years of imprisonment is foreseen
The definition of Possession within the meaning of the Criminal Code
It is important to know that “possession”, as defined in the Criminal Code, is not limited to the personal and immediate possession of a thing. In order for possession to be proven, the person must have knowledge and control of the matter in question. Therefore, the fact that a person does not have an illegal object directly in his or her physical possession is not a bar for conviction. Possession can be personal, constructive or joint (shared).
Personal possession
Personal possession implies that a person physically possesses an object. Furthermore, the person must consent to its presence and exercise a degree of control over it. Therefore, a person’s mere presence in a place where drugs are found is not sufficient to prove actual possession.
Constructive possession
Possession may be constructive where a person does not physically possess the object however, he knows where it is and has a degree of control over it.
For example, someone asks a family member or a friend to hide something at their home with the intention of collecting it at a later time.
Joint possession
The possession of a singular object may attach liability to more than one person. Even if only one person is in physical possession of an object, joint possession will be found to exist where all persons involved consent to the presence of the object and exercise a degree of control over it.
Possession cannot be presumed. The mere fact that a person is in a place does not impute possession of all the objects therein. Knowledge, consent and control must be found to exist.