The Controlled Drugs and Substances Act (CDSA) is the primary legislation governing drug possession in Canada. It criminalizes the possession of certain controlled substances listed in the Act, including narcotics, stimulants, hallucinogens, and prescription medications obtained without a valid prescription.

It is illegal to knowingly have any of these drugs in your possession at any time, even if they do not belong to you. If you have been charged with a crime such as possession of a narcotic, it is important to hire an experienced criminal defence lawyer as soon as possible.

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.

What factors influence sentencing and penalties for drug possession?

The penalties for drug possession under the CDSA depend on several factors, such as:

• The type and quantity of the controlled substance: Higher penalties are associated with substances in Schedule I (e.g., opioids or cocaine) compared to those in Schedule III (e.g., hallucinogens).
• The circumstances surrounding the possession: Factors like possessing drugs in a public place, near a school, or in the presence of minors can influence the severity of the penalty.
• The offender’s criminal history: Individuals with prior drug-related convictions or a history of violence may face harsher penalties.
• The presence of aggravating factors can increase the severity of the penalty. These include:
  • 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 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
• The presence of mitigating factors may reduce the penalty. These include:
  • demonstrating remorse or
  • participating in a drug treatment program

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.

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.

What are the penalties for drug possession?

The CDSA outlines specific sentencing guidelines for drug possession based on the Schedule of the controlled substance. Specifically, section 4 (1) of the CDSA refers to the offence of possession involving substances listed in Schedules I to III: The following are drug possession offences and penalties as outlined in the CDSA:

Possession of Schedule I substances (e.g., opioids, cocaine, methamphetamine):

• is guilty of an indictable offence and liable to imprisonment for a term not exceeding seven years; or
• is guilty of an offence punishable on summary conviction and liable
  • (i) for a first offence, to a fine not exceeding one thousand dollars or to imprisonment for a term not exceeding six months, or to both, and
  • (ii) for a subsequent offence, to a fine not exceeding two thousand dollars or to imprisonment for a term not exceeding one year, or to both.

Possession of Schedule II substances (Includes synthetic cannabinoid receptor type 1 agonists, their salts, derivatives, isomers, and salts of derivatives and isomers. Until 2018 this category included drugs falling within the cannabis family but are now dealt with under the Cannabis Act). 

• is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years less a day; or
• is guilty of an offence punishable on summary conviction and liable
  • (i) for a first offence, to a fine not exceeding one thousand dollars or to imprisonment for a term not exceeding six months, or to both, and
  • (ii) for a subsequent offence, to a fine not exceeding two thousand dollars or to imprisonment for a term not exceeding one year, or to both.

Possession of Schedule III substances (e.g., hallucinogens):

• is guilty of an indictable offence and liable to imprisonment for a term not exceeding three years; or
• is guilty of an offence punishable on summary conviction and liable
  • (i) for a first offence, to a fine not exceeding one thousand dollars or to imprisonment for a term not exceeding six months, or to both, and
  • (ii) for a subsequent offence, to a fine not exceeding two thousand dollars or to imprisonment for a term not exceeding one year, or to both.

Possession for the Purpose of Trafficking

Possession of an illegal substance for the purpose of trafficking is also an offence under section 5 (2) the CDSA and also carries strict penalties. You do not need to be caught selling or sharing narcotics but rather simply found in possession of them with the intention of selling or distributing them. The penalties for Possession for the Purpose of Trafficking are: 

Possession of Schedule I or II

• (a) if the subject matter of the offence is a substance included in Schedule I or II, is guilty of an indictable offence and liable to imprisonment for life;

Possession of Schedule III or V

• (i) is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years, or
• (ii) is guilty of an offence punishable on summary conviction and liable to imprisonment for a term not exceeding 18 months

Possession of Schedule IV

• (i) is guilty of an indictable offence and liable to imprisonment for a term not exceeding three years, or
• (ii) is guilty of an offence punishable on summary conviction and liable to imprisonment for a term not exceeding one year.

Diversion programs and alternative sentencing options

Some individuals charged with drug possession may be eligible for diversion programs or alternative sentencing options, which aim to address the root causes of drug addiction and prevent recidivism (reoffending). These programs typically provide offenders with access to counseling, education, and rehabilitation services. Participation in a diversion program can result in the suspension of criminal charges or a reduced sentence upon successful completion of the program.

British Columbia Pilot Project

Effective January 31, 2023, Health Canada granted the Province of B.C. an exemption under a subsection 56(1) of the CDSA to decriminalize some drug offences. The exemption lasts until January 31, 2026. This exemption means that adults (18 and older) in B.C. will not be subject to criminal charges if they possess a small amount of certain illegal drugs for personal use.

This pilot project is the first of its kind in Canada. For more information, refer to the Government of British Columbia website.

Get help

If you have a criminal record and want to erase it, call toll-free 1-888-808-3628 or learn more at Pardon Partners. It’s easier than you think.

Drug possession in Canada carries substantial legal consequences. If you have been charged with drug possession or any other crime, it is important to hire an experienced criminal defence lawyer as soon as possible. Contact our preferred criminal defence expert, Calvin Barry Criminal Lawyers for a free consultation at 416-938-5858 .

								
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