Area of Law: Criminal Law
Answer # 768
Possession of a narcoticRegion: Ontario Answer # 768
The federal Controlled Drugs and Substances Act (CDSA) lists all illegal drugs, including heroin, cocaine, and amphetamines. It is illegal to knowingly have any of these drugs in your possession at any time, even if they do not belong to you.
Under the federal Cannabis Act, possession of cannabis (marijuana) is no longer a crime in Canada; although there are legal limits for how much cannabis you can possess. It is important to note that although the federal minimum age for possession of cannabis in public is 18, most provinces and territories have raised the minimum age requirement to 19.
For more information, refer to our Cannabis Law section.
What is considered possession?
Under the law, the Crown prosecutor must prove certain things before you can be found guilty of possession. First, the Crown prosecutor must prove that you had physical custody of the drug, which means that the drug was somewhere on your body, or in a place that you control. For example, your home or your car are places that you control. Second, the Crown prosecutor must prove that you knew the substance was an illegal drug.
Trial procedures for possession: Summary vs Indictable offence
Possession is a hybrid offence, which means that the Crown prosecutor will decide whether to treat your case less seriously, as a summary conviction offence, or more seriously, as an indictable offence. The Crown’s decision will depend on many factors, including:
- if it is the first time you have been charged with possession,
- the quantity of drugs, and
- the type of drug.
Generally, if it is your first offence and you only had a small quantity of a “soft” drug, such as cannabis over the legal limit, your case will be treated as a summary conviction offence; while possession of a more serious drug, such as cocaine, LSD or heroin may be prosecuted as an indictable offence.
Penalties for possession
The Crown prosecutor’s choice of whether to proceed by summary conviction or indictment, will also affect the penalties that can be imposed if the accused is found guilty.
If the Crown proceeds by summary conviction, the maximum penalty for drug possession is a fine of $1,000 and six months in prison if it is the accused’s first offence. If it is not, the maximum penalty is a $2,000 fine and one year in prison.
However, the penalties usually given by the court for first time offenders possessing soft drugs, range from a fine between $250 and $500 and probation, for small amounts, to a maximum of up-to 5 years in prison for large amounts.
For more serious drugs, often referred to as Schedule 1 drugs under the CDSA, such as cocaine or heroin, the Crown may ask for a jail sentence even for first-time offenders. If the accused is convicted by indictment the maximum penalty is seven years in prison.
Other drug offences under the CDSA
Under the CDSA, the mandatory minimum penalties usually apply for Schedule 1 drug offences where aggravating factors apply, such as:
- the offence is committed for the purpose of trafficking;
- the offence is committed for the benefit of organized crime;
- the accused abused a position of trust or authority;
- the accused involved children or youth;
- the accused had access to an area that is restricted to authorized persons and used that access;
- violence, or a weapon, or the threat of either were involved;
- the offence occurred in prison; and
- the offence occurred in or near a school.
However, for other types of offences, such as producing or importing a Schedule 1 drug, mandatory minimum penalties are always imposed, regardless of whether an aggravating factor exists.
If you have been charged with possession of a narcotic, or any criminal offence, contact one of our preferred criminal law experts:
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