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Possession / Trafficking

Drug offences in Canada are prosecuted under the Controlled Drugs and Substances Act. The most common offences prosecuted under this legislation are the possession, possession for the purpose of trafficking and trafficking of drugs (commonly referred to as controlled substances).

If you are charged with possession of a controlled substance, the Crown Prosecutor will have to prove to the court that you had both control of the substance and knowledge of the substances's character and presence. The concept of control goes well beyond physical possession of a drug and can include situations where the drugs are stored in a location under your (even shared) control (including a vehicle, home, storage locker etc). Note that possession can be joint with another person – examples include a wife or parent who is aware of the presence of narcotics in the family home.

If you are charged with trafficking, or possession for the purpose of trafficking, the issues become even more complex. Many people believe that you can only be convicted of trafficking if you actually exchange money for drugs, this is not true. You can be found guilty of trafficking for merely offering to sell a controlled substance, even if you had no intention of carrying out the transaction. You can also be found guilty of trafficking where you are acting as an agent arranging for a deal between a buyer and a seller. Believe it or not, "social trafficking" is also trafficking. This includes where drugs are passed around at a party with no payment expected or asked for.

Prosecutions under the Controlled Drugs and Substances Act often involve addressing whether an accused's rights under the Canadian Charter of Rights and Freedoms have been violated. Drug charges are often the result of searches of an accused, their cars or their homes. In every situation where a search has been conducted the Crown bears the burden of establishing the search was lawful. If the Crown Prosecutor cannot establish the search was lawful, the evidence obtained by police may not be admitted at trial.

If guilty of an offence under the Controlled Drugs and Substances Act, the consequences vary considerably depending on the nature of the drug in question, the quantity of the drug and what an accused was doing with the drug.

Simple possession, for a first time offender, could result in everything from a referral into Alternative Measures (Court diversion) to a fine and even jail. Trafficking offences, especially those involving cocaine and other so called "hard drugs", almost invariably attract lengthy jail sentences. Our Court of Appeal has set the "starting point" sentence for trafficking in a drug like cocaine at 3 years in the penitentiary. Even trafficking in "soft drugs" such as marijuana can attract a period of incarceration.

If charged with, or investigated for, a drug offence, you should immediately consult counsel.