POSSESSION OF CONTROLLED DRUGS AND SUBSTANCES

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Table of Contents 

CATEGORIES OF DRUGS

POSSESSION

WHAT FACTORS WILL BE CONSIDERED IN SENTENCING?

WHAT ARE THE MAXIMUM PENALTIES?

WHAT IF I HAD A SMALL AMOUNT?

ARE THERE DEFENCES AVAILABLE?

GETTING ARRESTED

      With a Warrant

          Without a Warrant

          Police Searches

          Appearance Notices

WHERE CAN I GET HELP OR MORE INFORMATION?  

 

CATEGORIES OF DRUGS

 

There are six basic categories of drugs under the Controlled Drugs and Substances Act. These categories are all listed in schedules attached to the Act. The rules about who can have certain drugs, and when the drug can be possessed depends on the schedule the drug is found under.

 

For all 6 categories, it is illegal to import, export, traffic, or to possess drugs in any of the schedules for the purpose of trafficking. The 6 schedules are as following:

 

 Schedule 1:

  • Includes heroin, morphine, fentanyl, cocaine, codeine, amphetamines, methamphetamines, MDMA, coke, crack, speed, meth, ecstasy. etc.

  • These drugs are illegal to possess unless you have a doctor's prescription (e.g. morphine, codiene, oxycodone). Some drugs are always illegal to possess (e.g. heroine, crack cocaine, crystal meth).

 

·        Schedule 2:

  • Includes cannabis products. (marijuana/pot/weed)
  • These drugs are illegal to possess without a doctor’s prescription.

 

·        Schedule 3:

  • Includes LSD, psilocybin. (acid, mushrooms)
  • These drugs are illegal to possess without a doctor’s prescription. Some of these drugs are always illegal to possess.

 

·        Schedule 4:

  • Includes barbiturates, steroids, rohypnol. (downer's, juice, rufies)
  • These drugs are illegal to possess without a doctor’s prescription.

 

·        Schedule 5 and 6 are drugs and substances that are not allowed to be imported into Canada without proper authorization. Some of these are legal to possess without a doctor’s prescription (e.g. Cold medications). Some of these substances are used to manufacture drugs and there are strict regulations for the possession of these substances.

 

 POSSESSION

 

It is an offence to be in possession of any drugs or controlled substances listed in schedules 1, 2, or 3. If in doubt about whether or not a particular substance is illegal, contact a lawyer or look specifically at the schedules in the Controlled Drugs and Substances Act. This Act is available online (http://laws-lois.justice.gc.ca/PDF/C-38.8.pdf).Being unaware that the substance is illegal is NOT a defence.

 

Generally speaking, if the substance is a drug which has not been specifically prescribed to you by a doctor to the person who possesses it, and is not a drug sold over the counter in a pharmacy, chances are it is controlled and therefore illegal to possess.

Under Canadian law, you can still possess something without being the owner of the substance. The Criminal Code defines "possession" as:

 

  • Having a controlled drug in your possession; or knowingly
  • Have a controlled drug in the custody of another person; or
  • Having a controlled drug any place for the use or benefit of yourself or of another person.

 

More than one person can be in ‘possession’ of a drug/controlled substance at the same time. For example, if you know you are holding drugs that belong to a friend, both you and your friend may be in possession of those drugs.

 

WHAT FACTORS WILL BE CONSIDERED IN SENTENCING?                  

                                                                                                     

The sentence you get once you are found guilty of possession depends upon:

 

A. The Circumstances of the Offence:

1. The type (or schedule) of the drug/controlled substance;

2. The quantity;

3. Trafficking to minors (i.e. near a school)

4. Whether the Crown proceeds by way of summary conviction or indictment

5. Whether you carried a weapon and/or used threats

 

B. The Circumstances of the Offender:

1. Age;

2. Criminal record (especially previous drug offences);

3. Mental health;

4. Aboriginal status;

5. Etc.

  

WHAT ARE THE MAXIMUM PENALTIES?

 

The maximum sentences that can be imposed for possession are:

 

Drug Schedule

Maximum Indictment Penalty

Maximum Summary Penalty

Schedule 1

(e.g. heroin, cocaine or meth)

7 years in jail

·        $1,000 fine and/or 6 months in jail for a 1st offence

·        $2,000 fine and/or 1 year in jail for subsequent offences

Schedule 2  (marijuana/weed)

[LESS than 30 grams or 1 gram hash]

N/A

·        $1,000 fine and/or 6 months in jail

 

Schedule 2  (marijuana/weed) [MORE than 30 grams or 1 gram hash]

5 years less a day in jail

·        $1,000 fine and/or 6 months in jail

·        $2,000 fine and/or 1 year in jail for subsequent offences

Schedule 3

(LSD, mushrooms)

3 years in jail

·        $1,000 fine and/or 6 months in jail

·        $2,000 fine and/or 1 year in jail for subsequent offences

 * Keep in mind that in addition to these penalties, the United States and other countries may deny you entry if you are charged (convicted) with drug offences.

 

WHAT IF I HAD A SMALL AMOUNT?

 

Normally, possession of marijuana in small amounts will result in a fine. If you have prior related convictions, jail is a possibility. If the quantity is substantial, the chances of jail increase.

 

For other types of drugs/controlled substances, especially those in Schedule 1, a small amount may be dealt with by a more substantial fine. There is a risk of jail for even a small amount of cocaine or heroin. Again, the size of the fine and the chance of receiving jailtime increases if you have prior related convictions.

 

ARE THERE DEFENCES AVAILABLE?

 

If you are charged with possession of a drug/controlled substance, you should get legal advice (speak to a lawyer). A person trained in criminal law can advise you whether or not there is a defence, whether proper procedures were followed by the police, and what effect improper procedures might have on the charge. If the search was illegal, this could result in the evidence not being able to be used against you. The Crown must also prove what you had was the drug they are saying it was. Often times, this is done by a certificate of analysis from a lab for the drug/controlled substance, which must be shown to you before trial.

 

GETTING ARRESTED

It is important to remain calm and be respectful with the police. If you are not peaceful, you may be charged with resisting arrest, obstruction of justice, obstructing a peace officer, or assaulting a peace officer.                                                                                                                                                                    

You can be arrested in two circumstances:

1) With a warrant; or

2) Without a warrant.

1.  With a Warrant                                                                                      

A warrant is a court order allowing the police to arrest a person based on information the police have that you likely have committed, or are in the process of committing, a crime.  The officer must show you the arrest warrant.

 

2.  Without a Warrant

An arrest can be made without a warrant if:

1. You are found in the act of committing a criminal offence;

2. An officer has "reasonable and probable" grounds to believe that you have committed an offence; or

3. An officer has "reasonable and probable" grounds to believe that you are about to commit an offence.

 

Reasonable and probable grounds means that an officer must have some reason to suspect that you committed or were about to commit an offence.

3. Upon Arrest, What are my Rights?

When you are arrested, the officer MUST

1) Give reasons for the arrest; and

2) Inform you of your right to contact legal counsel (a lawyer). The officer MUST inform you of all available options: including free 1-800 numbers for lawyers, duty counsel, and Legal Aid. The officer must also give you an opportunity to exercise your right to contact a lawyer as soon as it is reasonable to do so.

 

Until you are arrested, you do not have to speak with the police. The only information you need to give the police is your name and birthdate (identifying information). It is in your best interests to provide the correct legal name, otherwise you may be detained. You may be charged with obstruction if you provide a false name. Once you have been lawfully arrested, you do not have to speak to the police or answer any questions. You have a right to speak to a lawyer. If you decline your right to speak to a lawyer, the police are allowed to ask you questions and what you say may be used against you in court. You still do not have to answer the police’s questions or give a statement. You have a right to silence, no matter how long you are questioned.

 

POLICE SEARCHES

 

Until you are lawfully arrested, generally, you do not have to allow police to search your person or possessions. However, an officer can search you prior to arrest if:

  • You give express consent for the police officer to do so.
    • Consent must be informed - you must have known that you could say "no."
  • The police have a search warrant.
  • The police think you have a weapon or you are about to destroy evidence of a crime.
  • If you are pulled over at a roadside check stop, the officer can search the area that is in his/her plain view. The officer may use a flashlight.
  • The police have reasonable or probable grounds to believe a person is committing or has committed an offence and that evidence will be found at the place of the search.

 

Once you have been lawfully arrested, the officer has a right to search you, your belongings, and the area around you for evidence of the alleged offence or for a weapon.

 

APPEARANCE NOTICES

 

Once you have been arrested, the officer will decide whether to release you or take you to the police station.  In most minor cases, you will be released on an appearance notice.  The notice will order you to appear on two occasions:

1. First appearance: to have your fingerprints and photograph taken (at the police station);

2. Second appearance: to enter a plea of guilty or not guilty (at the courthouse)

 

It is VERY IMPORTANT that you attend both appearances and seek the assistance of a lawyer to accompany you.  If you do not attend court, you may be charged with another offence for FAILING TO APPEAR and a WARRANT FOR YOUR ARREST may also be issued. If you do not have a lawyer for your court date, you can request to speak with duty counsel (a free lawyer at the court house) who can speak to the judge on your behalf.

 

However, the police may choose to keep you in jail at the police station instead.

This is generally done if the police believe:

 

  • It is necessary to keep evidence of the offence safe;
  • It is necessary to properly identify you;
  • It is necessary to protect the public or prevent you from committing further offences; or
  • It is necessary to ensure you will attend your court dates.

You will have the right to appear before a Justice of the Peace or a Judge within 24 hours of your initial arrest for a BAIL HEARING (or an INTERIM RELEASE or SHOW CAUSE HEARING). This is where the Prosecutor (Crown lawyer), or police officer (in the case of a Justice of the Peace bail hearing), may argue that you should not be released from jail prior to your trial. If you are already out on outstanding charges, the onus is on you to give reasons why you should be released. After hearing from both sides, the Justice of the Peace or Judge will decide whether or not to release you, and if so, what conditions should apply. (Examples of conditions include: no drinking, staying in the area, curfew, residing at a certain residence, no contact with certain individuals, no cell phones, etc.)

 


WHERE TO GET HELP OR MORE INFORMATION

 

Legal Resources

Elizabeth Fry Society of Edmonton

10523 100 Avenue NW

Edmonton, AB T5J 0A8

Contact:

Toll free: 1-866-421-1175

Web: www.efryedmonton.ab.ca

The Elizabeth Fry Society of Edmonton is aimed providing at-risk women and girls with various programs and services. Programs include the Aboriginal Women's Program, Criminal Court Program, Employment Services Program, Financial Literacy Program, Legal Clinics, Imprisonment Programs, and youth programming. Services include smudging, laundry facilities, and drop-in workshops.

 

John Howard Society, Edmonton (EJHS)

Suite 401, 10010 105 Street NW

Edmonton, AB T5J 1C4

Contact:

Ph: 780-428-7590

EJHS provides programs for the at-risk populations as well as those who are impacted by violence. These programs cover several areas, such as housing, employment, support, finance, and victim assistance. EJHS can provide assistance and support through the court process.

 

Lawyer Referral Service

 

Contact:

Toll free: 1-800-661-1095

When you call, you will speak to an operator and you will describe the nature of your problem to them. The operator will then provide you with the contact information for up to three lawyers who may be able to assist you. When contacting these referred lawyers, make sure to let them know that you were given their information by the Lawyer Referral Service. The first half hour of your conversation with a referred lawyer will be free and you can discuss your situation and explore options. Note: This free half hour is more for consultation and brief advice and is not intended for the lawyer to provide free work.  

 

Legal Aid Society of Alberta

Revillon Building

Suite 600 – 10320 102 Avenue

Edmonton, AB T5J 4A1

Contact:

Toll free: 1-866-845-3425

Web: www.legalaid.ab.ca

The Legal Aid Society of Alberta functions to assist low-income Albertans with certain types of legal matters. Assistance is provided through information, referrals, advice, and/or representation, depending on what your matter is and which eligibility guidelines you meet.

 

Native Counselling Services of Alberta (NCSA)

10975 124 Street NW

Edmonton, AB T5M 0H9

Contact:

Ph: 780-451-4002

NCSA provides numerous programs working to support and strengthen Aboriginal individuals and families. These programs include support in court, assistance with child/family service matters, housing and support for at-risk youth, and Aboriginal healing lodges. They do not provide therapy or counselling.

 

Student Legal Services – Criminal Law Project

#203, 9924 106 Street NW

Edmonton, AB T5K 1C7

Contact:

Ph: 780-492-8244

Admin: 780-425-3356

The Criminal Law Project looks to assist adults who have been charged with an offence but are unable to afford a lawyer or qualify for Legal Aid Alberta. A law student can provide free legal assistance where they can act as an agent for you, under the supervision of advising lawyers.                                                                                                     

Addiction Support

Alberta Health Services – Addiction Services

10010 102A Avenue NW

Edmonton, AB T5J 0G5

Contact:

Ph: 780-427-2736 

Addictions Toll-free Helpline: 1-866-332-2322

Provides personalized walk-in intake and assessment, treatment, and referral services and a wide range of individual, group, and family counselling. Group sessions related to addiction recovery run in the morning, afternoon, and evenings. Referrals, support, and various programs also offered.

 

George Spady Centre Society

10015 105a Avenue NW

Edmonton, AB T5H 0M5

Contact:

24 Hour Ph: 780-424-8335 

The George Spady Centre Society focuses on serving individuals who have substance-related disorders and dual diagnoses by providing detox, shelters, housing, and other supports.

 

Jellinek Society

11229 100 Avenue NW

Edmonton, AB T5K 0J1

Contact:

Ph: 780-488-1160

Email: emailus@jellineksociety.ca

Jellinek Society provides a residential treatment program for men, ranging from 3 months to up to a year, that looks to address day-to-day issues beyond just the addictions as addiction is never a stand-alone issue.

 

Narcotics Anonymous, Edmonton

Various Locations

Contact:

24 Hour Ph: 1-855-421-4429 

Narcotics Anonymous operates in the Edmonton area as a support network made up of individuals who have a multitude of experiences but share an addiction to drugs and a desire to stop using.

 

Our House Addiction Recovery Centre

22210 Stony Plain Road NW

Edmonton, AB T5S 2C3

Contact:

Ph: 780-474-8945

Our House Addiction Recovery Centre provides programs for addictions recovery to both men and women, as well as residential treatment options for men dealing with addictions. It also provides anger management courses.

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