Drug Possession Charges In Ontario
The prosecutor in a drug case needs to prove that the controlled substance in question is illegal under the Controlled Substances Act. This act defines illegal drugs as those that are not medically exempt. Some of these drugs include cocaine, crystal meth, ecstasy, GHB, heroin, ketamine, LSD, magic mushrooms, opium, and more.
If you are charged with drug possession, the prosecutor must present evidence that the substance in question is actually an illegal drug. This evidence typically comes in the form of a “Certificate of Analysis” from a Health Canada analyst, who has tested the substance and verified that it is illegal. Simply having a police officer testify that something looked like an illegal drug is not enough to prove the charge. If the prosecutor fails to enter the Certificate of Analysis into evidence, the case may result in an acquittal. It is also important to note that the prosecutor must prove that the individual charged with possession was actually in possession of the drug – simply being in close proximity to illicit drugs is not enough to be convicted.
How Can The Authorities Prove Knowledge of Illegal Drugs?
There are a few different ways that the authorities can try to prove knowledge of illegal drugs in order to convict someone of possession. One way is if the person has direct evidence, like drug paraphernalia or packaging, on them. Another way is if the person has a drug in their system, which can be detected through a urine or blood test. Lastly, if the person has been seen using drugs or buying drugs, this can be used as circumstantial evidence to try and prove that they knew the drugs were illegal.
If you are caught with drugs in your possession, it does not matter if you did not know that the substance was illegal. You can still be charged with drug possession. This is because the knowledge that something is an illegal substance is not required to establish possession. So, if you are caught carrying cocaine, even if you thought it was sugar or salt, you can still be found guilty of drug possession.
If I am Caught With Drugs That I do Not Own, Can I be Charged With Illegal Possession?
In Canada, you can be convicted of drug possession even if the drugs don’t belong to you.
Do The Authorities Need to Provide Evidence of Control Over Illegal Drugs?
Even if it has been determined that an individual charged with drug possession is aware of the illicit nature of the substance, the Crown must still demonstrate that the accused had some measure of control over the drug.
Can I be Guilty of Drug Charges if The Police Found Drugs on Someone Else?
Someone can be guilty of drug possession even if the illicit substance is not actually on their person (actual possession) if the police can determine that the person had control and knowledge of the drugs, which constitutes constructive possession.
For example, someone driving a vehicle where a drug was found and seized from a compartment can be accused of drug possession because the driver can see the drug and has control of the vehicle even when the accused does not own the vehicle. The same applies to finding drugs inside someone’s luggage at the airport or finding illegal substances in that person’s room.
However, note that in the situation described above, a passenger on the vehicle may not be guilty of constructive possession as your attorney can raise doubt about whether the passenger has any control or knowledge of the substance or the vehicle where the authorities found the illicit substance.
Is it Possible For Two Individuals to be Guilty of Possessing The Same Drug?
Yes. Joint possession of an illicit drug is possible when one of two or more persons has possession of a drug with the consent and knowledge of the others.
What differentiates constructive possession and joint possession is that joint possession requires only consent that someone is in control of the illegal drug, whereas constructive possession requires that a person has some level of control over the item in question. If someone permitted another individual to hide illegal drugs in their bag or apartment, as proven by evidence, that person could be found guilty of joint drug possession.
What Should I Do if I Was Subjected to an Illegal Search by The Police?
One of the issues that often comes up in drug trials is whether or not the police obtained the evidence against the accused legally. If it can be proven that the evidence was obtained through an illegal search, then it may be thrown out as unconstitutional. Every person in Canada is protected by the Charter of Rights and Freedoms from unreasonable police searches and detention. If the police obtain evidence through violating a person’s constitutional rights, that evidence cannot be used against the individual in court. The accused’s lawyer can raise this as a “Charter Challenge.”
Can I Challenge a Search Warrant?
If the police carry out a search using a warrant that is later found to be invalid, the resulting evidence may not be able to be used in court. This could lead to a not guilty verdict. It is, therefore, possible to challenge the reason for issuing a warrant, even if it was originally issued by a judge. If an investigation reveals that the original warrant was based on inaccurate or unreliable information, it can be ruled invalid.
What is The Difference Between a Charge of Possession For Trafficking And Just Possession of Drugs?
Someone charged with possessing a narcotic for trafficking must be proven by the Crown that the person was indeed in possession of the drug and that the found item is illegal. In addition, the Crown must prove that the person found in possession of the drugs intends to give or sell the drugs to other individuals.
A person possessing illegal drugs has the drugs, but any intent to see or distribute either cannot be proven or has no basis.
What Factors Does The Court Consider When Determining if a Person is Trafficking Illegal Drugs?
The factors that the Court will examine to determine if a case is possession of a drug to traffic or not include:
- the amount of drugs involved
- the monetary value of the drugs involved
- the types and presence of drug paraphernalia found
- the value amount of money found
- the coinage or denomination of the money found on the accused or with the accused
- all statements uttered by the accused
- any association of the accused with known drug traffickers
- any unexplained wealth of the accused; and
- the reputation or credibility of defence witnesses
Be aware that being caught with a large quantity of illegal drugs can lead to a charge of possession for the purpose of drug trafficking, but this does not guarantee a conviction. A person accused of this crime can claim that the drugs are for personal use and not for sale, which may result in the charge being reduced to simple possession. However, keep in mind that admitting to regular drug use is not a valid defence against any drug charges.
Possession of drugs with the intent to sell is a serious charge. The Crown prosecutor does not need to prove that drugs were actually sold to secure a conviction – it is enough to show that the accused intended to sell them. This can be based on factors such as the amount of drugs found, whether they were packaged for sale and whether the accused has a history of drug trafficking.
What Are The Sentences For Drug Possession And Drug Possession For The Purpose of Trafficking Charges?
A judge’s sentencing for drug possession charges can vary based on many factors. These include the quantity of the drug, the reason for possession, and the type of drug involved. In general, addicts are usually treated more leniently by the Court as compared to those accused of possessing or trafficking drugs for profit.
When it comes to drug possession, the sentence an individual face depends on a number of factors specific to their case. For instance, those found with so-called “soft drugs” are typically given a less severe sentence than those caught with harder drugs like heroin or cocaine. Also, the amount of drugs in someone’s possession often plays a role in how long they will be incarcerated. Those caught with large quantities can end up facing multiple years behind bars.
Calvin Barry is a criminal defence lawyer with over 25 years of experience. He has represented clients charged with various offences, including drug possession and trafficking, impaired driving, and assault. Barry has a proven track record of success in court and has successfully argued many Charter challenges to exclude illegally obtained evidence from his clients’ cases. If you have been charged with a crime, Calvin Barry is the lawyer you need to ensure that your rights are protected and to give you the best chance at a successful outcome.
If you or someone you know has been charged with drug possession in Toronto or the surrounding area, contact experienced criminal defence lawyer Calvin Barry immediately. With over 25 years of experience defending clients against all types of drug charges, Calvin Barry can help you develop the most effective defence strategy for your case. Contact us today to schedule a consultation.
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