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Possession of Controlled Drugs And Substances

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Contents  

Introduction
Controlled Drugs And Substances Act
Possession
Getting Arrested
Defences Available
Examples Sentences For Possession
Referral Numbers
 

Introduction

The purpose of this pamphlet is to provide a basic guide to the law surrounding possession of controlled drugs and substances. It should not be a substitute for obtaining legal advice.  Keep in mind, in addition to penalties that a court can impose, your entry into the United States and other countries may be denied if you are charged with a drug offences.

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Controlled Drugs And Substances Act

There are five basic categories of drugs that are controlled by the Controlled Drugs and Substances Act. These categories are all listed in schedules attached to the Act. Drugs listed in schedules 4 and 5, which include substances such as steroids and barbituates, can be possessed but must be obtained with a prescription, and are illegal to import, export or traffic, or to possess for the purpose of trafficking.

Schedules 1, 2, and 3 contain drugs which are illegal to possess. There are literally hundreds of drugs in these schedules.

The first schedule includes drugs such as heroin, morphine, cocaine, codeine and many other similar substances.

The second schedule contains cannabis (marijuana) products.

The third schedule contains drugs like amphetamines, LSD, psilocybin and methamphetamines.

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Possession

It is an offence to be in possession of any controlled substance listed in schedules 1, 2, or 3. If in doubt about whether or not a particular substance is controlled and legal or illegal, get legal advice or look specifically at the schedules in the Controlled Drugs and Substances Act. This Act should be available at any library, online, or from any criminal lawyer. Generally speaking, if the substance is a drug which has not been specifically prescribed by a doctor to the person who possesses it, and is not sold over the counter in a pharmacy, chances are it is controlled and therefore illegal to possess.

"Possession" does not mean to "own". Section 4(3) of the Criminal Code defines "possession" as having a controlled or illegal substance under your personal control or having knowledge of it being in the custody of another person, or having it in any place for the use or benefit of yourself or another person, with knowledge and consent of the others, has the substance in his/her custody or possession. 

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Getting Arrested

A person can be arrested in two circumstances: with a warrant or without a warrant.

1. With a Warrant

A warrant is a court order to arrest a person based on information the police have that he or she has committed, or is in the process of committing, a crime. The officer must show the person being arrested the warrant, either at the time of the arrest, or, within a reasonable time after the arrest.

2. Without a Warrant

An arrest can be made without a warrant if:

• a person is found in the act of committing a criminal offence;
• the officer has reasonable and probable grounds to believe that they have committed an offence; or
• the officer has reasonable and probable grounds to believe that they are about to commit an offence.

Until a person has been arrested, he/she is under no obligation to speak with the police aside from providing their identifying information. It is in a person's best interests to provide the correct legal name, otherwise they may be detained. 

Similarly, until a person is lawfully arrested he/she is under no obligation to allow police to search his/her person or possessions. However, a police officer can search a person, even before he is arrested, if the individual gives express consent for the police to do so, provided the consent is informed. This means that the individual must be aware of her right to refuse the search. A person cannot be forced or pressured into consenting to be searched. However, a person shouldn't physically resist a search. 

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

When a person has been arrested, the officer MUST give the reasons for the arrest and immediately inform the accused of her right to contact legal counsel (a lawyer) without delay. The officer MUST also inform them of all available options: including 1-800 numbers for free lawyers and the Legal Aid Society if they are available in the area  of the arrest. The officer must also give the person an opportunity to exercise their right to contact a lawyer as soon as it is reasonable to do so.

Once a person has been lawfully arrested, she is under no obligation to speak to the police or answer any questions until after she has had the opportunity 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. However, you are still not obligated to answer the police's questions. You have a right to silence, no matter how long the police question you for. 

Once a person has been lawfully arrested, the officer has a right to serach that person, his/her belongings, and the area around him/her, for evidence of the alleged offence or weapons.  

If a person has not been arrested, for example, if pulled over by the police at a roadside check stop, the office can only search the area that is in his plain view.  The officer cannot enter a vehicle to search it, but may use a flashlight to look into the vehicle under these circumstances. If the officer has reasonable and probable grounds though, he/she can effect a search. 

Once a person has been arrested,  the officer will make a decision about whether to release you on an APPEARANCE NOTICE or take you to the police station. In most minor cases, you will be released on an appearance notice. The notice will state that you are suspected of committing the offence listed and it will order you to appear on two occasions. The first of these appearances will probably be at a local police station to have your fingerprints and photograph taken. The second date is likely to order you to make an appearance at the local courthouse to enter a plea of either guilty or not guilty to the charge(s) against you.

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

The police also have the option of taking you to the police station, where you may be kept in jail. This action is generally taken if they believe (1) it is necessary to preserve evidence of the offence, (2) to properly identify you, (3) that it is necessary to protect the public (that is to prevent the commission of further offences), or (4) if they believe 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. This appearance is called a BAIL HEARING (or an INTERIM RELEASE or SHOW CAUSE HEARING). This is where the Prosecutor (Crown) 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 the Justice or Judge has heard from both sides, they will decide whether or not to release you, and if so, what conditions should apply.

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Are There Defences Available?

If you are charged with possession of a controlled substance, you should get legal advice. 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 being excluded. The Crown must also prove that the substance was in fact the controlled substance they are alleging. Often times, this is done by a certificate of analysis for the controlled substance, which must be served upon you before trial.

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What Sentences Can I Get For Possession?

The potential or the probable sentence for possession depends upon several things:

• The type (or schedule) of the controlled substance;
• The quantity;
• Whether the Crown proceeds by way of summary conviction or by indictment. The latter of which generally carries a harsher sentence. 

In addition, the general circumstances surrounding the offence and the personal circumstances of the person being sentenced are considered by a sentencing judge. If a person has a prior criminal record, especially a drug record, the sentence will probably be more harsh than if the person has no previous involvement with the law. Consider the maximum sentences which can be imposed for possession of Marijuana as an example: 

• Marijuana (schedule 2) - up to $1,000.00 and six months in jail if the amount is less than 30 grams (or one (1) gram of hash);
• If the amount of marijuana is more than 30 grams (or more than one (1) gram of hash) the maximum penalty is five (5) years less a day in prison, if the Crown proceeds by indictment. Maximums are less if the Crown proceeds by summary conviction.
• In the case of schedule one (1) drugs (such as heroin, cocaine or morphine) - the maximum penalty if the Crown proceeds by indictment is seven (7) years in jail. If the Crown proceeds by summary conviction, the maximum penalty is less.
• For schedule three (3) drugs - the maximum penalty by indictment is three (3) years and less for summary conviction.

Generally speaking, possession of marijuana in small amounts will result in a fine. If there are prior related convictions, jail is a possibility. If the quantity is substantial, the chances of jail increase.

For other types of drugs or controlled substances, especially those in schedule (1), a small amount may be dealt with by a substantial fine. However, there is a risk of jail for even a small amount of cocaine or heroin. Again, the chances of jail increase and the amount of any fine increases if there are prior related convictions.

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 Referral Numbers

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