Offences related to narcotics are found in the Controlled Drugs and Substances Act (CDSA). The most common narcotics offences are Possession, Trafficking, and Possession for the Purpose of Trafficking.
Under s.4(1) of the CDSA, it is an offence to possess a schedule I-III substance. Possession requires that the person a) have some quantity of the substance under their control, and b) have knowledge of it.
Control refers to power or authority over the substance, or the ability to decide what is done with it.[1] Control can be established whether or not the individual has exercised that power or authority.[2]
Knowledge requires that the individual is aware that the substance is in their possession and that it is illicit.[3] However, it is not necessary to know about the exact type of drug, just that it is illegal.[4] Knowledge may also be inferred. For example, knowledge may be established where drugs are found in plain view in a common area of an individual’s residence.[5]
Types of Possession
There are three types of possession: actual, constructive, or joint. Actual possession requires that the defendant has both physical control of the weapon and knowledge of what it is and that it is in their control.[6] Actual possession is commonly found when the defendant has the substance on their person.
Constructive possession applies where the defendant has knowledge of the substance and knowingly puts it in a particular place for their use or benefit (or the benefit or use of another person).[7] The defendant needs some degree of control over the substance or its location, but it does not need to be physical or exclusive.[8] For example, a defendant storing drugs somewhere off their property or leaving them with a friend to hold may still constructively possess it.[9]
Joint possession allows multiple people to be in possession of the same object. A defendant may jointly possess a substance in the control of another party where they have knowledge of the substance, consent to it being controlled by another party, and still maintain some degree of control over it.[10] For example, someone that does not object to drugs being stored in a shared residence or report it may be liable as they are considered to have a degree of control over the premises.[11]
Defences
“Innocent Possession” may be applicable where the individual has knowingly taken control of an illicit substance for the purpose of destroying it or otherwise placing it outside the scope of their control. Although they have technically satisfied the prerequisites for possession, the individual’s intention is to get the substance out of their control, rather than maintain it.[12] However, it is important to be decisive: holding onto the substance while considering what to do with it may still result in charges.[13]
Quantity. Although the CDSA does not specify a minimum quantity of a substance to constitute possession, some courts have dismissed charges for merely trace amounts. Minute traces or residue of a substance may be considered de minimis, or so trifling that the law will not concern itself with them. Although they may be evidence of possession at “some unknown and indeterminable time and place in the past,” they are not evidence of possession at the time of arrest, which is the substance of the charge.[14] For example, a small amount of cocaine residue on a bill may be too insignificant to constitute possession.
Usability. Separately from quantity, de minimis may still apply where the nature of the substance has changed such that it can no longer be used for any purpose.[15] For example, burnt residue on an amphetamine pipe or the strong odour of freshly smoked crack, although indicative of past drug use, may not count as possession. Similarly, possessing paraphernalia itself is not illegal. However, if there was a usable amount of a narcotic within the paraphernalia, it could still result in charges.
Under s. 5(1) of the CDSA it is an offence to traffick in a schedule I-V substance, or any substance held out by that person to be such a substance.[16] Trafficking is defined as selling, administering, giving, transferring, transporting, sending, or delivering a substance, or selling an authorization to obtain the substance.
Transportation is not applicable to simply moving a substance from point A to point B (for example, just having a substance on one’s person for personal use). It requires that it is being moved “to promote the distribution of the narcotic to another.”[17] Following the same logic, transferring drugs to another person for the purpose of safekeeping may still be considered trafficking, depending on the individual’s intent in making the transfer.[18]
Trafficking by Offer requires the Crown to prove that an offer to traffic or sell the substance was made and that there was an intent to make an offer that would be taken as genuine by the recipient.[19] It does not require that an individual actually had drugs on them at the time of the offer or was even capable of fulfilling the request. For example, courts have laid convictions for trafficking where the “trafficker” never had access to drugs in the first place or withdrew their offer. The intent to sell is determined by the context, with consideration for elements such as discussion of the product, price, and method of transaction.[20]
Purchasing, Aiding, and Abetting. Purchasers of drugs or third parties providing “no more than incidental assistance of the sale through rendering aid to the purchaser” cannot be charged with aiding and abetting trafficking.[21] For example, simply providing someone with the phone number of a drug trafficker is unlikely to result in charges for aiding the trafficker in question. However, acts such as bringing the parties together, acting as a middle-person for the transaction, or taking a commission for the sale may result in liability for aiding or abetting trafficking.[22]
Possession for the Purpose of Trafficking
Under s.5(2) of the CDSA, it is also an offence to possess a schedule I-V substance for the purpose of trafficking.[23] This requires the Crown to establish all the elements of possession in addition to the intention to traffic the drugs. Common factors used to infer this intention include:
- Quantity: a high quantity, value, or purity of the drugs in the individual’s possession may all be consistent with the intention to traffic, rather than personal use.[24] The defendant may support an inference that the drugs were for personal use with evidence regarding typical use, habits, and the amounts required to maintain an addiction, although expert evidence is usually required.[25]
- Money: large amounts of unexplained money may suggest that the individual has trafficked substances. Cash in small denominations may lead to a similar inference, particularly where it is found near the drugs.[26]
- Packaging materials: small bags, scales, and other packaging can similarly support an inference of trafficking.[27]
Drug Schedules[28]
The CDSA categorizes substances into various Schedules, which carry different sentences upon conviction of possession or trafficking. Schedule I and II drugs carry the harshest penalties, whereas penalties for Schedule IV substances are the most lenient. Schedule III and V fall in the middle. Possession is only applicable to substances falling into schedules I-III, whereas Trafficking charges are applicable to Schedules I-V.
- Schedule I includes most “hard” street drugs such as cocaine, amphetamines, MDMA, ketamine, heroin, and other opiates.
- Schedule II includes synthetic cannabinoids.
- Schedule III includes most hallucinogens.
- Schedule IV includes drugs with pharmaceutical uses such as diazepam, benzodiazepine, and anabolic steroids.
- Schedule V includes analogues of certain drugs.
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[1] R v Chalk, 2007 ONCA 815 (CanLII), 227 CCC (3d) 141, paras 19-20.
[2] Ibid.
[3] Ibid at para 18.
[4] R v Burgess, 1969 CanLII 467 (ON CA), [1970] 3 CCC 268 (ONCA).
[5] R v Sparling (1988), OJ No 107, [1988] OJ No 107 (Ont. H.C.).
[6] R v Morelli, 2010 SCC 8 (CanLII), [2010] 1 SCR 253 at paras 15-16.
[7] Ibid at para 17.
[8] R v Kocsis, 2001 CanLII 3593 (ON CA), 157 CCC (3d) 564.
[9] Criminal Code, RSC 1985 c C-46, s 4(3) [Criminal Code].
[10] R v Terrence, 1983 CanLII 51 (SCC), [1983] 1 SCR 357.
[11] R v Mihalkov, 2009 ONCA 154 (CanLII), 243 CCC (3d) 173.
[12] Chalk, supra note 1 at para 23-25; see also R. v. Loukas, [2006] O.J. No. 2405, 2006 ONCJ 219.
[13] R v Christie, 1978 CanLII 2535 (NBCA), 41 CCC (2d) 282 (NBCA).
[14] R v Marusiak, 2002 ABQB 774 (CanLII) at para 19
[15] Ibid at para 20; R v McBurney, 1975 CanLII 1399 (BCCA); R v Overvold, 1972 CanLII 1315 (NWT TC); R v Mete, 2009 CanLII 1808 (ONSC).
[16] Controlled Drugs and Substances Act, SC 1996 c 19, s.5(1) [CDSA].
[17] R v Harrington, 1963 CanLII 675 (BCCA), [1964] 1 CCC 189.
[18] R v Breau, 2019 NSSC 181 (CanLII); R v Lauze, 1980 CanLII 2935 (QCCA), 60 CCC (2d) 469 (QCCA).
[19] R v Murdock, 2003 CanLII 4306 (ONCA), 176 CCC (3d) 232 at para 238 [Murdock].
[20] R v Burke, 2014 ONSC 3199 (CanLII) at para 28.
[21] R v Greyeyes, [1997] 2 S.C.R. 825 at para 8.
[22] Ibid at para 13.
[23] CDSA, supra note 16, s.5(2).
[24] R v Adelberg, 2001 BCCA 637 (CanLII), 159 BCAC 54; R v Falahatchian, 1995 CanLII 941 (ONCA), 99 CCC (3d) 420; R v L’Huillier, 1997 CanLII 9606 (NB QB), 501 APR 144; R v Le, 2001 BCCA 658 (CanLII), 160 CCC (3d) 146 [Le]; R v Naugler, 1994 ABCA 110 (CanLII).
[25] R v Petavel, 2006 BCSC 1931 (CanLII), BCJ No 33 39 [Petavel].
[26] R v Alberts, 1999 CanLII 2246 (ON CA); Le, supra note 26.
[27] R v Kwok, 2002 BCCA 177 (CanLII), 164 CCC (3d) 182; Petavel, supra note 25; R v Scott, 2003 CanLII 27446 (ONSC).
[28] CDSA, supra note 16.
