Drug Possession

If you have been charged with drug possessionHaving knowledge and control of something — not only physically holding it, but also an item kept somewhere else that you know about and control., the type of drug and the amount you possess are the most important factors for determining how your case will proceed. In Canada, all illegal drugs are listed within the Controlled Drugs and Substances ActCanada's federal drug control statute, which sets the rules about unlawful drug use. While this Act is separate from the Criminal CodeA federal act codifying most criminal offences in Canada, drug charges can result in a criminal record and carry strict penalties.

The Act divides drugs into categories or schedules, with the harshest penalties given to people found with drugs falling in the first three categories.

• Schedule ICommonly characterized as “hard drugs"  drugs include heroin, fentanyl, cocaine, methamphetamine, amphetamines and MDMA (ecstasy).
• Schedule IIIncludes synthetic cannabinoid receptor type 1 agonists drugs include synthetic cannabinoid receptor type 1 agonists, their salts, derivatives, isomers, and salts of derivatives and isomers..
• Schedule IIIMost hallucinogens  drugs include LSD and magic mushrooms (psilocybin).
• Schedule IVSchedule IV includes popular pharmaceuticals and anabolic steroids  drugs include diazepam, benzodiazepine and anabolic steroids. 
• Schedule VSchedule V lists fentanyl precursors  currently lists no active substances.

Cannabis is handled separately under the Cannabis Act, not the CDSA.

Keep in mind that if you are found with a large quantity of drugs that the police believe you intended to sell or even give to others, you may face drug traffickingInfluencing the movements of a person in order to exploit them charges, which are much more serious than possession charges. 

Personal Possession

With any possession charge, prosecutors need to show that you had control of the drug and knew what it was. They do not have to prove that you knew the exact law. For example, drugs found in your pocket, home, or car may be treated as personal possession if the Crown can prove knowledge and control.

Constructive Possession

You can also be charged if you knowingly keep a drug somewhere you control, even if you are not holding it. This is called constructive possession. An example is keeping drugs in a locker and holding the only key.

Joint Possession

Two or more people can be treated as possessing the same drug if one person has it and the others know about it and agree to it. This is called joint possession.

Possessing any amount of prohibited drugs is illegal in Canada. To secure a conviction, the Crown must prove three things beyond a reasonable doubtThe high standard the Crown must meet to prove guilt.: that you had control over the substance (physically or otherwise); that you knew the substance was present; and that you knew it was a controlled drug and not merely something harmless like a spice or a tea.

The defence of lacking knowledge could be raised in situations where drugs were found in your house or car but you did not know they were there. Perhaps a friend brought them and mistakenly left them behind. Or maybe a friend had brought over a bag of something herbal to your house, but you assumed it was a form of spice or tea, and you were not aware it was an illegal narcotic.

In some cases, it can be argued that the police illegally obtained the evidence being used against you. All Canadians have the right to be free from unreasonable police searches. If the police found the drugs through an unjustified search, you may have grounds to challenge any evidence revealed in that encounter, thanks to protections offered under the Canadian Charter of Rights and Freedoms.

Canadian courts deal with offences in three ways. summary offenceLess-serious criminal offences are for less-serious crimes such as thefts under $5,000, while indictable offenceA more serious type of Canadian criminal offence. include murder, sexual assault and aggravated assault. In between those two are what are called hybrid offenceAn offence the Crown can proceed with summarily or by indictment.. This includes possession, where the Crown can deal with it as either a summary or indictable offence.

If it is the first time you have been charged and you did not possess a significant amount of drugs, the Crown will likely treat your possession charge as a summary offence. It also helps if you are found with a “soft” drug like marijuana as compared to more serious narcotics such as fentanyl or heroin.

Canadian law now tells police and prosecutors to consider non-court options for simple possession, such as taking no further action, giving a warning, making a referral, or using alternative measures. That does not make possession legal. Simple possession is still an offence under s.4 of the CDSA.

In August 2020, the Public Prosecution Service of Canada issued a directive (Guideline 5.13) instructing federal prosecutors to generally reserve criminal charges for the most serious drug possession offences that raise public safety concerns, and to consider alternatives to the criminal justice system in other cases. This is a prosecution policy, not a change in the law. The offences and maximum penalties remain in place.

The court has wide latitude in deciding the penalty for possession of a controlled substanceA substance that is regulated by the government, with the main factors being the type and quantity of the drug and the Schedule it falls under in the CDSA.

For Schedule I substances such as cocaine, heroin, or fentanyl, the maximum penalty on indictment is 7 years imprisonment. For Schedule II substances, the maximum on indictment is 5 years less a day. For Schedule III substances such as LSD or psilocybin, the maximum on indictment is 3 years. On summary convictionLess-serious criminal offences, the maximum is generally a fine of up to $1,000 and/or 6 months imprisonment for a first offence, and up to $2,000 and/or 1 year for a subsequent offence. These summary limits apply across Schedules I, II, and III.

Repeat offenders are also more likely to receive more severe penalties. Every case is fact-specific and various circumstances such as the person's past history and prior criminal record are considered. If this is your first offence, a plea arrangement to avoid a criminal record may be possible, especially if you agree to enroll in counselling or other support programs.

If a guilty verdict is reached on any criminal charge, the court will have to consider several factors to arrive at your sentence. Aggravating factorsA fact or circumstance that may support a more severe sentence., such as a past criminal record, could increase the sentence while mitigating factors, such as if this is your first offence, could decrease the punishment.

The court can decide many types of sentences or combinations of penalties.

Discharges

For less-serious offences, a court may grant a discharge. An absolute discharge means no criminal conviction is registered and no conditions are attached. A record of the absolute discharge generally remains on police databases (CPIC) for one year, after which it is removed. A conditional discharge means no criminal conviction is registered, but you must comply with conditions set by the court for a specified period of time. A record of the conditional discharge generally remains on CPIC for three years from the date of the order, after which it is removed. During that period, the record may appear on a background check or affect international travel, even though no criminal conviction has been registered. If conditions are breached, the court can revoke the discharge and enter a conviction.

Sentences

Suspended sentences and probation allow the court to refrain from imposing a sentence and you will be put on probation for a specified length of time. Conditional sentences allow you to serve your sentence in the community instead of jail, if you agree to abide by specified conditions. Imprisonment is the most serious sentence under our legal system. Anyone sentenced to less than two years is sent to a provincial correctional institution, with longer terms served in a federal penitentiary. If the court imposes a sentence of 90 days or less, it may be ordered that the sentence be served intermittently, such as on weekends. This allows you to go to work or school or care for family members. People convicted of either first or second-degree murder are sentenced to imprisonment for life. If you are convicted of first-degree murder you will not be eligible for parole until serving at least 25 years of your sentence. If you are convicted of second-degree murder, you will not be eligible for parole until serving between 10 and 25 years.

There is no fixed amount in Canadian law that automatically counts as "personal use." Canada does not set a number of grams that separates personal possession from a more serious charge.

Instead, quantity is one of several things that may be looked at, along with how the substance was packaged, anything found with it, and the circumstances. A larger amount, or other signs that the substance was meant to be given or transferred to others, may lead to a trafficking-related charge instead of simple possession.

This page does not try to identify safe amounts or thresholds.

Cannabis is not covered by this CDSA possession page. Cannabis possession is governed by the Cannabis Act, not the CDSA possession offence.

In some simple possession cases, the CDSA has a record-separation and deemed-not-convicted mechanism. This is not the same as an expungement or legal advice about a person’s record. Whether it applies depends on the statute and the person’s situation.