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Have You Been Charged with Drug Possession?

Charged with drug possession? Not sure what to do? You’re not alone. Every year thousands find themselves facing drug possession charges, often stemming from carrying small amounts for personal use.  Even though changes to Canadian drug laws are forthcoming, simple possession of marijuana is still contrary to the Controlled Drugs and Substances Act, if not obtained with a prescription from a licenced producer.

Understanding Possession

Drug possession is not covered by the Criminal Code of Canada.  Rather, it is subject to the Controlled Drugs and Substances Act (CDSA).  CDSA offences are prosecuted by the Federal Crown and not the Provincial Crown.  This is one of the few instances where the Federal government is involved in prosecution of criminal offences.

The CDSA defines possession as within the meaning in section 4(3) of the Criminal Code of Canada:

(3) For the purposes of this Act,

  • a person has anything in possession when he has it in his personal possession or knowingly
    1. has it in the actually possession or custody of another person
    2. has it in any place whether or not that place belongs to or is occupied by him, for the use or benefit of himself or of another person; and
  • where one of two or more persons, with the knowledge and consent of the rest, has anything in his custody or possession, it shall be deemed to be in the custody and possession of each and all of them.

This is definition contains three different types of possession: personal possession, constructive possession, and joint possession.

Constructive possession defined above in 4(3)(a)(ii) received further treatment in R. v. Morelli, 2010 SCC 8 where it is described as occurring when “the accused did not have physical custody of the object in question, but did have it in the actual possession or custody of another person, or in any place, whether or not that place belongs to or is occupied by him, for the use or benefit of himself or of another person.”

To be found guilty of constructive possession, the Crown must prove that the accused knew the character of the object, knowingly put or kept the object in a place, and intends to have the object for his or her use or benefit, or benefit to some other person. For example, you could be in possession of drugs if you store them in someone else’s house with the intention of receiving it later or intend for someone else to receive them.

Joint possession, as defined above, means that you can be in possession of drugs even if it is, for example, in someone else’s pocket or residence, if they are possessing it with your knowledge and consent.

There are two key elements to possession that are required in the three forms of possession listed above.  Those elements are knowledge and control.  As stated in R. v. Morelli: “It is undisputed that knowledge and control are essential elements […]”  These elements must be present in order for possession to be found.

  1. Knowledge – the accused was aware of the object being in possession.
  2. Control – the accused must have had some measure of control of the object possessed.

These two elements are not confined to drugs alone, but are essential to possession in general.  They are required for possession of firearms, stolen goods, etcetera.

Drug Schedules

Each type of drug falls under a certain category that assists in determining the range of sentencing. These categories are the Schedules of the CDSA.  The following are the Schedules and their corresponding drugs:

  • SCHEDULE I – Heroin, cocaine, opium, oxycodone, fentanyl, morphine, methamphetamine, and amphetamines.
  • SCHEDULE II – Cannabis its preparations and derivatives, such as Hashish.
  • SCHEDULE III – Lysergic Acid Diethylamide (LSD) and Psilocybin (magic mushrooms).
  • SCHEDULE IV – Barbiturates, diazepam, benzodiazepine and anabolic steroids are examples.
  • SCHEDULE V – Repealed
  • SCHEDULE VI – Class A Precursors.
  • SCHEDULE VII – specifies 3 kilograms as an amount of Cannabis that triggers certain higher penalties.
  • SCHEDULE VIII – Specifies 1 gram of cannabis resin, or 30 grams of cannabis, as amounts that can attract lesser penalties


Under section 4(1) of the CDSA: “Except as authorised under the regulations, no person shall possess a substance included in Schedule I, II, or III.”

The penalties for drug possession vary depending on the type of drug as well as the quantity.  Schedule I, II, and III, however, all have the same sentences for a summary conviction.  For a first offence, the punishment is a fine not exceeding one thousand dollars and a term of imprisonment not exceeding six months, or both.  For a subsequent offence, a fine not exceeding two thousand dollars, or to imprisonment for a term not exceeding one year, or both. If the Crown proceeds by indictment, there are different maximum terms of incarceration for possession related to each Schedule.  Schedule 1 carries a maximum incarceration period of seven years, Schedule II a maximum of five years less a day, and Schedule III a maximum of three years.

In addition to the maximums set out in the CDSA, a wide variate of factors affect punishment.  Quantity, purity, and perceived dangerousness of the drug play a large role, as does the circumstances of the offender, including criminal record.

Section 4(5) of the CDSA takes into account quantity of the drug if it is a Schedule II substance.  This section states that if the amount is less than the amount set out in Schedule VIII, then the accused is guilty of an offence punishable on summary conviction.

Simple possession of Schedule IV drugs is not prohibited, but they are regulated, and trafficking, or possession for the purpose of trafficking, importing, export, and fabrication are prohibited unless authorized.


Being charged with drug possession requires quality defence and legal representation that will guide you during the charges and process to gain the best outcome possible.

While many people may consider drug possession charges as a minor crime, it is important to take it seriously. Possession charges can come with some major consequences, such as adversely affecting your ability to secure future employment.

If you or someone you know has been charged with drug possession, Weisberg Law can help.  Our criminal defence team takes a personalized approach to each and every case to ensure that our clients receive the attention they expect and require.

We believe in proactively defending these cases with a multi-pronged approach to enhance our chances of success.

If you have been charged with drug possession, contact Weisberg Law to determine your legal options.

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