Drug possession Lawyers in Canada

The Crown is the prosecutor. A person charged with an offence is presumed innocent until proven guilty, so the Crown is the side that has to prove the charge. Section 11(d) of the Canadian Charter of Rights and Freedoms protects that presumption.

The charge in section 4(1) has two parts. The first is the substance. It must be one included in Schedule I, II or III of the CDSA. Which schedule applies matters, because section 4 sets a different maximum penalty for each one.

The second part is possession. Section 2 of the CDSA says that possession means possession within the meaning of subsection 4(3) of the Criminal Code. Under that subsection, a person has something in possession when they have it in their personal possession, or when they knowingly have it in the actual possession or custody of another person, or knowingly have it in any place, whether or not the place belongs to them, for the use or benefit of themselves or of another person.

Where one of two or more people, with the knowledge and consent of the rest, has something in custody or possession, the same subsection deems it to be in the custody and possession of each of them. Whether the evidence meets these words is for the court to decide.

Section 4 sets the penalty by schedule, and each offence can be prosecuted on indictment or on summary conviction. For a Schedule I substance, section 4(3) sets a maximum of seven years in prison on indictment. For a Schedule II substance, section 4(4) sets a maximum of five years less a day on indictment. For a Schedule III substance, section 4(6) sets a maximum of three years on indictment.

On summary conviction the maximums are the same for all three schedules. For a first offence, the maximum is a fine of $1,000, imprisonment for six months, or both. For a subsequent offence, it is a fine of $2,000, imprisonment for one year, or both. These penalty provisions set maximums only and no minimum term. A maximum is the limit the law allows. It is not a statement of the sentence in any case.

Section 10(4) lets a court that is sentencing a person delay the sentencing so the person can take part in a drug treatment court program approved by the Attorney General, or attend a treatment program.

Section 730(1) of the Criminal Code lets a court that finds a person guilty direct a discharge instead of a conviction, absolute or on the conditions of a probation order, if it considers that to be in the interests of the accused and not contrary to the public interest. The section leaves out an offence with a minimum punishment, and an offence punishable by imprisonment for fourteen years or for life.

Section 10.2(1) says a peace officer shall, instead of laying an information against an individual alleged to have committed an offence under section 4(1), consider whether it would be preferable to take no further action, to warn the individual or, with the individual's consent, to refer them to a program or to an agency or other service provider in the community. Section 10.2(2) adds that a failure to consider those options does not invalidate any later charges.

Section 10.3 limits prosecutions. A prosecution for an offence under section 4(1) may be commenced or continued only if the prosecutor is of the opinion that a warning, a referral or alternative measures is not appropriate and that a prosecution is appropriate. These sections say what police and prosecutors are asked to consider. They do not say what happens in any case.

Because the Crown must prove both the substance and the possession, the facts about each can be questioned at trial: whether the substance is one included in Schedule I, II or III, whether the person had it in a way that section 4(3) of the Criminal Code describes, and whether the evidence shows the knowledge that the subsection refers to.

Section 8 gives everyone the right to be secure against unreasonable search or seizure, and section 9 gives everyone the right not to be arbitrarily detained or imprisoned. Section 10 gives everyone on arrest or detention the right to be informed promptly of the reasons, to retain and instruct counsel without delay and to be informed of that right.

Section 24(1) lets anyone whose Charter rights were infringed or denied apply to a court for a remedy. Under section 24(2), evidence obtained in a manner that infringed a Charter right shall be excluded if admitting it would bring the administration of justice into disrepute. Whether a right was infringed is for the court to decide. Section 11(b) also gives a person charged with an offence the right to be tried within a reasonable time.

In Ontario, every charge under the CDSA starts in the Ontario Court of Justice, and about 95% of charges are completed there. The Superior Court of Justice can try any indictable offence but generally tries only the most serious ones, and the court's own description names drug trafficking among them.

A person who is arrested may be taken before a justice for a release decision. Under section 515(1), the justice shall make a release order without conditions unless the prosecutor shows cause why detention is justified or why another order under that section should be made. Section 11(e) of the Charter protects the right not to be denied reasonable bail without just cause.

A summary conviction appeal in Ontario goes to the Superior Court of Justice sitting in the region, district or county or group of counties where the case was decided. Under section 813, the defendant may appeal from a conviction or against a sentence. An appeal from a conviction on indictment goes to the court of appeal. Under section 675(1), a person may appeal as of right on a question of law alone. An appeal on a question of fact, or of mixed law and fact, needs leave, as does an appeal against sentence.

Legal Aid Ontario may pay for a lawyer if the person qualifies and is charged with a crime that could mean jail on conviction, or is 12 to 17 and charged under the Youth Criminal Justice Act. Duty counsel is a lawyer at the courthouse for that day. Duty counsel can advise on rights, ask to delay a court date, act at a bail hearing, help with a guilty plea, speak at sentencing, and meet the Crown, for people who qualify and have no lawyer.

A legal aid certificate pays a roster lawyer, one approved to take legal aid clients, for the length of the criminal case. Applications are online or by phone at 1-800-668-8258.

The Law Society of Ontario keeps a public Lawyer and Paralegal Directory. The Ontario lawyers on this site are listed by city. Nothing on this page ranks or recommends any of them.