Drug Possession Lawyers in Toronto

Drug Possession is the charge which arises from having a substance in your control which you are prohibited to possess. Drug possession is listed under federal legislation called the Controlled Drugs and Substances Act (“CDSA”), not under the Canadian Criminal Code.

It is an offence to possess any substances listed in Schedules I, II, or III of the CDSA, unless you have authorization to do so. The most common substances listed within the CDSA schedules are cocaine, heroin, methamphetamine, fentanyl, opium, morphine, LSD, oxycodone, GHB, PCP (or “angel dust”), and Psilocybin (or “magic mushrooms”).

The relevant provision for drug possession in the CDSA is:

You can be found to be in possession of the drug even if you don’t have actual, physical possession of the substance.

The CDSA adopts the definition of “possession” found in the Criminal Code:

The definition above sets out three types of possession:

1. Actual personal possession – the drug is on your person.
2. Constructive possession – the drug is not on your person but is kept with another person or at another place with your knowledge and consent, for your own or someone else’s benefit, whether or not the place belongs to you.
3. Joint possession – the drug is not on any one person but is kept with another person or place with the knowledge and consent of all persons with joint possession.

Possession in law is made out if you had knowledge and control of the drug, which can be proven by direct or circumstantial evidence. The strength of your case will depend on your individual circumstances. Contact one of our experienced criminal defence lawyers to determine the options available to you.

Investigation of Drug Possession Charges in Toronto

Police may initiate a drug possession investigation for a number of reasons. Two of the most common events that prompt these investigations are traffic stops and you being lawfully arrested for another offence.

During a traffic stop, if the police observe or smell a drug in your vehicle, they may have grounds to arrest you and/or your passengers for drug possession charges, followed by a more thorough search of the vehicle. Similarly, if you have been placed under arrest lawfully, the police can search your person and you may be charged with drug possession if drugs are found on you.

After the police have gathered their evidence, they will arrest you if they believe you are the perpetrator. If you are not present at the scene, police will track you down or issue a warrant for your arrest.

After you have been charged, police will provide a package with all the evidence they collected, known as the “disclosure package,” to the Crown Prosecutor. You will have the right to access this disclosure package to see the evidence against you. Once you retain one of our lawyers, we will assist you in obtaining the disclosure package, and we will review it with you to assess the strengths and weaknesses of the Crown’s case, as well as any legal defences that may be available to you.

Bail Process and Conditions for Drug Possession Charges in Toronto

How do I get myself or a loved one out on bail for drug possession charges in Toronto?

If you have been charged with simple drug possession, it is not uncommon for police to release you at the scene on a release order. Police will provide you with a Promise to Appear document outlining your charges, and any required appearances you must make. This document may also include conditions that you are required to follow while on release.

However, if you have a prior drug conviction of any sort, you are charged with possession of a more serious substance, or of very large quantities, the police or Crown Prosecutor will often ask the Judge to order that you be held in jail until your trial. In these cases, a formal bail hearing may be required to secure your release.

In order to conduct a bail hearing, you will be taken to the Toronto Police Service Division that is responsible for the alleged crime. The bail hearing must be held within 24 hours, a period that starts from the moment of arrest or detention rather than the time when you are brought into the Division.

The phone number for each division is 416-808-[Division Number – 00], so for example, the number for 52 Division is 416-808-5200. The addresses for each Division of the Toronto Police Service can be found here.

Penalties for Drug Possession Charges in Toronto

Depending on the nature and quantity of drugs involved, the CDSA penalties for drug possession charges can be significant:

• Where the Crown proceeds by summary election:
  • First offence: a maximum fine of $1000 and/or a maximum jail sentence of 6 months;
  • Subsequent offence: a maximum fine of $2000 and/or a maximum jail sentence of one year.
• Where the Crown elects to proceed by indictment: a maximum jail sentence of 5 or 7 years, depending on the nature of the drug.

The primary indicator of the maximum possible punishment is the type of drug found in your possession, for example:

• Cocaine, heroin, morphine, oxycodone, codeine, GHB (“date rape” drug), opium, etc.: Up to 7 years in jail, up to three years of probation, and/or several thousand dollars of fines;
• Certain synthetic cannabis agents: maximum of 5 years in jail, fines, and/or up to three years of probation;
• LSD and psilocybin (“magic mushrooms”): maximum of 3 years in jail, fines, and/or probation.

Other factors that can impact the sentence range include your personal circumstances, criminal history, and the circumstances of the offence.

Some of the most significant factors that could increase your likelihood of jailtime are:

• The drug or substance falls under Schedule I (more dangerous);
• The drug was brought into Canada from another country; or
• The offence involved a connection with a criminal organization.

A conviction for a drug charge, even of a small degree, can have wide-ranging negative consequences on your future:

• Drug charges may affect your reputation in your community or with social groups;
• Potential employers may refuse or terminate your employment if their business involves handling money or the use of valuable property;
• Your friends, family and peers may view you as unworthy of their trust;
• You may have civil, immigration, or child custody consequences; and/or
• You may have difficulties travelling abroad, including to the United States.

Therefore, even if you intend on accepting responsibility for this type of offence, it is worthwhile to explore your options and consider all the possible penalties. Often, good representation can result in no criminal record. Furthermore, a community-based sentence may be obtained even where the Crown is seeking jail time.

Rest assured, our lawyers will work hard to defend you so that you are not saddled with the consequences of a criminal conviction for drug possession. In fact, we can canvass a range of sentencing options with the Prosecutors that will either leave you with no criminal record or impose minimal restrictions on your liberty after sentencing. To learn more about potential non-criminal resolutions, please visit our Resolutions page, or read our FAQ on resolutions and other sentencing options.

Defending Drug Possession Charges in Toronto

What are the best defences to drug possession charges in Toronto?

Possession in law is made out if you had knowledge and control of the drug. This means that the Crown Prosecutor has the burden of proving that you were aware of the illegality of the substance and that you had a degree of authority over it. Drug prosecutions are often highly technical in nature. Just because drugs were involved does not mean a conviction is automatic.

Some of the most common defences for drug charges include:

• Factual Innocence: This is usually the strongest defence because the facts and evidence do not support you being there, interacting with the illicit drug, or other basic elements of the offence. This could include:
  • Identity: In some circumstances where the offence was not recorded by surveillance footage, or the footage is poor quality, you may be able to raise an identity defence. For example, authorities could have made a mistake in identifying you as the perpetrator based on the poor quality of the footage. In order to effectively raise this defence, you may need corroborative evidence, such as an alibi to where you were at the time of the offence.
  • Not an illicit drug: If a substance is not scientifically proven to be an illicit drug under one of the CDSA schedules, it is not illegal to interact with it. Typically, the substance will be sent to a laboratory to undergo multiple sample tests in order to prove it is a controlled drug or substance.
• Insufficient Possession: There are several defences that can be raised to challenge the elements of the offence of drug possession. This means challenging that you did not have knowledge of the illicit drug and/or did not have control over it. These defences include:
  • No mental intent: A common defence available for drug charges is that you did not intend to interact with the illicit drugs. For example, if you were holding a backpack filled with an illicit drug for a friend or family member with no reason to suspect it contained the drugs.
  • Innocent possession: Where the sole intent of possession is to turn the drug over to authorities or destroy it, the element of control is not fulfilled. For example, intending to dispose of an illicit drug that you found on your property.
  • De minimis non curat lex: If you’ve been charged with possession of a very small amount of an illegal drug, this could be a defence. For example, if you have unmeasurable traces of an illicit drug in your possession.
  • Licence: If you are licensed or authorized to possess an illicit substance, this could help challenge a drug possession charge.
• Violation of Constitutional Rights: The Canadian Charter of Rights and Freedoms sets out your rights before and after your arrest. If the police fail to abide by these rights, it could aid in your defence. With drug possession, this typically arises as an unlawful search and seizure of the substance, or an unlawful detention and/or arrest.

The Crown is required to prove that you not only committed the physical acts of drug possession, but that you intended to perform the actions involved. While the Crown must prove beyond a reasonable doubt that you committed the offence, you may bear some responsibility in raising certain defences at trial.

The availability and strength of any defence depends entirely on the specific facts of your case. Our lawyers have significant experience assessing the availability and strengths of potential defences in drug possession cases, as well as presenting any and all available defences to the Court at trial. Even if you believe you will be found guilty, it is important that you obtain a legal opinion about the defences that may be available to you.

What can a lawyer do to help me defend against drug possession charges in Toronto?

As we start preparing your defence by examining police actions and the evidence against you, there are certain defence strategies that can be used to aid your cause, including:

• Assembling documents, photographs, texts, etc. that contradict the allegation and support your defence;
• Gathering evidence from witnesses that support your version of events;
• Identifying mistakes in the actions of the police, such as Charter breaches;
• Uncovering administrative/systemic errors, such as “Jordan delay,” non-disclosure, lost or destroyed evidence, etc.; and
• Finding weaknesses or “holes” in the Crown’s case that may make it difficult or impossible for them to establish the elements of the offence.

An experienced and capable drug possession lawyer will be able to review your case to determine if there are any defences that can lead to your acquittal.

What Next?

Drug possession cases are highly technical and fact-specific. Additionally, because of the lengthy police surveillance involved, drug possession cases are often very complex.

We have tried our best to provide a general outline of what you can expect if you find yourself in this situation, but this is just the tip of the iceberg.

To learn more about how we can help, please contact our team of Drug Possession Lawyers. We will conduct a thorough review of your situation and tailor a precise strategy that targets your successful defence.