Possession of illegal drugs is covered by the Controlled Drugs and Substances Act, known as the CDSA. While the law relating to possession of marijuana will change beginning October 17, at this moment, it is still illegal to have marijuana in your possession unless you have medical authorization.
The categories of drugs listed in the CDSA are in “schedules”. For example, marijuana is listed in Schedule II and also includes cannabis resin.
Section 4 of the CDSA prohibits possession of any drug listed in Schedule I, II or III except as allowed by regulation, for example, a medical prescription. Familiar examples of drugs in Schedule I are codeine, morphine, hydromorphone and Oxycodone. Schedule III includes such prohibited drugs as LSD and Psilocybin (magic mushrooms).
Subsection (2) of section 4 of the CDSA says that no person shall seek or obtain a substance in Schedules I, II, III or IV from a medical practitioner unless that person discloses information to the doctor about any other of those substances that he has obtained. This is known as “double-doctoring”. Schedule IV includes substances known as barbiturates like phenobarbital and benzodiazepines like Clonazepam and Lorazepam that are often prescribed for anxiety and sleeplessness.
HOW SERIOUS IS POSSESSION OF THESE DRUGS AND HOW IMPORTANT IS IT THAT I HAVE A LAWYER?
It can be very serious indeed. With respect to possession of a substance listed in Schedule II which includes marijuana, it makes an accused liable to a prison term of 5 years less a day if the Crown proceeds by indictment. If the Crown were to proceed summarily, it could result in a fine of $1,000 or a jail term of 6 months or both. There is an exception that, if it is marijuana and the weight is less than 30 grams or, if it is cannabis resin and the weight is less than 1 gram, then it is a summary offence liable to the $1,000 fine and/or 6 months in jail. In fact, in many jurisdictions, where a person is charged with having possession of marijuana under 30 grams, the Crown is often open to considering a “diversion” in which an accused may complete a drug counselling program and the charge is withdrawn. This is an option that your lawyer can discuss with a Crown if you have been charged. It is easy to see the huge variation between the results depending on the substance, the amount of the substance and the criminal history, if any, of the accused.
“Trafficking” includes not only selling drugs but also administering, giving, transferring or delivering that substance. Conviction can make an accused liable to a life sentence if the substance is from Schedule I (e.g., Oxycodone) or Schedule II (marijuana, subject to the “under 30 grams” exception).
WHAT IS THE DIFFERENCE BETWEEN TRAFFICKING AND POSSESSION FOR THE PURPOSE OF TRAFFICKING?
Because of the harsh sentences one can expect with a conviction on drug trafficking, it is crucial to ascertain whether the lesser charge of possession for the purpose of trafficking (P for P) might be accepted. This will depend on the circumstances surrounding the alleged offence, the actual substance, the amount of the substance and, often, the background of the accused. Again, the possibility of negotiating a lesser offence will depend on the skill of your lawyer.
HOW DOES THE CHARTER OF RIGHTS AND FREEDOMS RELATE TO A DRUG CHARGE?
The section of the Charter that is probably used the most often in drug cases is s. 8. “Everyone has the right to be secure against unreasonable search and seizure”. For example, a police officer may conduct a “pat-down” of a person that the officer believes to be a drug dealer. Or that person may be asked to “‘empty his pockets” without the officer having seen any criminal activity. There is a similar practice known in the U.S. as “stop and frisk” which has come under great scrutiny. As well, s. 11 of the CDSA sets out the search and seizure powers of the police including the use of “exigent circumstances” in s. 11(7). If exigent circumstances exist, then the police are justified in entering a place without a warrant. However, there are limits on the use of this power. A proficient lawyer will be able to discern those circumstances where there has been an over-reach of police powers and highlight them to the Crown or the Judge. If evidence was obtained in a way that violated the Charter, that evidence (the drugs, for example) may be excluded at which point there is no evidence to convict.
WHETHER YOU HAVE BEEN CHARGED IN PETERBOROUGH, LINDSAY, OSHAWA, KINGSTON OR TORONTO OR POINTS IN BETWEEN, AITKEN ROBERTSON CAN HELP YOU.
We know the questions that have to be answered: How were the drugs found? Have the drugs been tested and have they been proven to be what is described? Did the search and seizure comply with the Charter of Rights?
We are committed to ensuring that no stone will be left unturned. It can make the difference between conviction and acquittal; jail or no jail.