Arrested for Drug Possession: What You Need to Know

Being arrested for drug possession can result in criminal charges, release conditions and a prosecution under Canada’s Controlled Drugs and Substances Act. However, finding drugs near someone does not automatically prove criminal possession.

Drug possession cases can involve important questions about who actually possessed the substance, whether the accused knew it was there, whether they had control over it and whether police lawfully obtained the evidence.

If you have been arrested or charged with drug possession, understanding these issues early can be important to your defence. De Boyrie Law represents individuals facing drug possession and other drug-related criminal charges.

Call (647) 931-0248 to schedule a free consultation about a drug possession charge.

What Is Drug Possession Under Canadian Law?

Drug possession offences are primarily governed by the Controlled Drugs and Substances Act (CDSA). Section 4 of the CDSA prohibits unauthorized possession of substances included in Schedules I, II and III. These schedules include a wide range of controlled substances. A possession allegation may involve substances such as

• cocaine,
• fentanyl,
• heroin,
• methamphetamine,
• MDMA and
• other controlled drugs.

Prescription medications can also create legal issues where a controlled substance is possessed without lawful authorization.

Cannabis is governed primarily by separate legislation, and lawful possession is permitted within the limits established by the Cannabis Act and applicable provincial laws.

What Does “Possession” Actually Mean?

One of the most important questions in a drug possession case is whether the Crown can actually prove possession. Physical proximity to a controlled substance is not necessarily enough.Possession can involve circumstances where a person knowingly has a substance in their personal possession. It can also arise where a person knowingly has the substance somewhere else for their own use or benefit. Canadian criminal law also recognizes joint possession in some circumstances.

This means possession cases can become more complicated when drugs are discovered in:

• a shared home;
• an apartment with several occupants;
• a vehicle containing multiple passengers;
• a hotel room;
• a backpack or bag;
• a storage area;
• another person’s belongings; or
• another location accessible to multiple people.

The Crown must establish the elements of possession beyond a reasonable doubt.

Does the Crown Have to Prove I Knew the Drugs Were There?

Knowledge is an important component of possession. Simply being present where drugs are discovered does not automatically establish that every person present possessed them. For example, if police discover a controlled substance in a vehicle occupied by several people, the existence of the drugs does not necessarily prove that every occupant knew about or possessed them. Similarly, drugs found in a shared residence do not automatically belong to everyone living there. The surrounding evidence becomes important.

Police and prosecutors may look at factors such as:

• where the drugs were found;
• who had access to the location;
• who controlled the property;
• statements made to police;
• fingerprints or other forensic evidence;
• text messages;
• photographs;
• surveillance evidence;
• packaging or drug paraphernalia; and
• other evidence connecting an accused person to the substance.

A defence lawyer can examine whether that evidence actually establishes knowing possession.

What Is the Difference Between Simple Possession and Possession for the Purpose of Trafficking?

Simple possession generally involves possession of a controlled substance without lawful authorization. Possession for the purpose of trafficking is a separate and substantially more serious allegation. The distinction does not depend solely on the amount of drugs found. Quantity can be important, but police and prosecutors may also consider evidence such as:

• packaging;
• scales;
• multiple cellphones;
• cash;
• communications;
• customer lists or records;
• quantities inconsistent with personal use; and
• other evidence allegedly suggesting distribution.

Someone found with a larger quantity of a controlled substance may therefore face an allegation of possession for the purpose of trafficking rather than simple possession. However, the Crown still has to prove the trafficking purpose rather than simply relying on the existence of drugs.

What Should I Do If I Am Arrested for Drug Possession?

An arrest can be stressful, but decisions made during the investigation can affect the case later.

Understand Your Right to Remain Silent

You generally do not have to answer police questions about an alleged offence. Statements made during an investigation can become evidence. Someone who believes they can explain why drugs were found nearby may unintentionally provide information connecting themselves to the substance. You should understand your legal rights before deciding whether to provide a statement.

Ask to Speak With a Lawyer

If you are arrested or detained, section 10(b) of the Canadian Charter of Rights and Freedoms provides the right to retain and instruct counsel without delay and to be informed of that right. Ask to speak with a lawyer. Legal advice at this stage can help you understand what police are investigating and how to exercise your rights.

Do Not Physically Interfere With Police

If you believe police are conducting an unlawful search, physically attempting to prevent the search can create additional problems. The legality of a search can be challenged through the court process. Make note of what happened and tell your lawyer exactly how police obtained the evidence.

Preserve Information About the Arrest

As soon as reasonably possible, make a detailed record of what occurred. Useful information can include:

• where you were when police approached;
• what officers said;
• what you said;
• whether you were told you were detained or arrested;
• when you asked for a lawyer;
• whether police searched you;
• what property police searched;
• whether police showed you a warrant;
• what police seized; and
• who else was present.

Details that appear insignificant immediately after an arrest can become important when the evidence is reviewed.

Can Police Search Me for Drugs?

Police search powers depend on the circumstances. A search does not automatically become lawful simply because police ultimately discover drugs. Section 8 of the Canadian Charter of Rights and Freedoms protects against unreasonable search and seizure.

Different legal rules can apply depending on whether police searched:

• your person;
• your clothing;
• a bag;
• your vehicle;
• your home;
• a cellphone; or
• another location.

Some searches require prior judicial authorization. Other searches may be legally permitted without a warrant in particular circumstances.

The defence should examine why police conducted the search, what authority they relied upon and whether they stayed within the lawful scope of that authority.

What If Police Searched My Car?

Drug possession charges frequently arise from vehicle searches. The fact that police lawfully stopped a vehicle does not necessarily give them unrestricted authority to search everything inside it. The legality of the search depends on the circumstances. If drugs are discovered in a vehicle with multiple occupants, there can also be a separate question about who possessed them. The defence may therefore need to examine both:

1. whether the search was lawful; and
2. whether the Crown can prove that the accused knowingly possessed the substance.

These are distinct issues.

What If Police Found Drugs in My Home?

Searches of homes engage significant privacy interests. Police may obtain a search warrant authorizing them to search a residence for specified evidence. Where a warrant was obtained, a defence lawyer can review the circumstances surrounding the authorization and execution of the search. A search warrant does not automatically establish that every occupant of the residence possessed everything discovered inside. Where several people live in the same home, the location of the drugs and evidence connecting them to a particular person can become especially important.

What If Police Found Drugs in Someone Else’s Car or Apartment?

Being present in a place where drugs are discovered does not automatically establish possession. The Crown still has to connect the accused to the controlled substance. Questions may include:

• Did you know the drugs were there?
• Did you exercise control over them?
• Where exactly were they located?
• Who owned the property?
• Who had access to the area?
• Were the drugs concealed?
• Did anyone else claim ownership?
• What evidence connects you to the substance?

Shared spaces can create significant evidentiary issues in possession prosecutions.

What If the Drugs Were in My Bag but I Didn’t Know About Them?

The fact that drugs were physically located inside something belonging to you can be important evidence, but it does not necessarily end the legal analysis. The Crown still has to prove the required elements of possession. If someone placed a controlled substance in your belongings without your knowledge, knowledge may become a central issue in the defence. The surrounding circumstances and credibility of the explanation need to be considered alongside the Crown’s evidence.

Can More Than One Person Possess the Same Drugs?

Potentially. Canadian criminal law recognizes joint possession. This means the Crown does not necessarily have to prove that only one person possessed a particular substance. However, simply being associated with someone who possesses drugs is not the same as jointly possessing those drugs. The Crown must establish the legal requirements for possession in relation to each accused person. This distinction can be particularly important in cases involving vehicles, shared residences and groups of people.

What Happens After a Drug Possession Arrest?

What happens next depends on whether police release you or hold you for a bail hearing.

Release or Bail

Police may release an accused person with conditions. In other cases, the accused may be held for a bail hearing. Release conditions can potentially include restrictions concerning:

• communication with certain people;
• attendance at specified locations;
• possession of weapons;
• drug or alcohol possession or consumption; and
• other conduct.

Conditions should be reviewed carefully and followed unless they are formally changed.

First Court Appearance

The first court appearance begins the court process, but it is not necessarily a trial or the point at which the accused must immediately decide whether to plead guilty. A lawyer can begin reviewing the charge and obtaining the Crown’s disclosure before major decisions are made about how the case should proceed.

Disclosure

The Crown must provide relevant disclosure to the defence. In a drug possession case, disclosure may include:

• police notes;
• occurrence reports;
• search warrants;
• Information to Obtain documents;
• photographs;
• body-camera footage;
• surveillance video;
• witness statements;
• laboratory analysis;
• evidence concerning the weight and identity of the substance;
• text messages or cellphone evidence; and
• other evidence collected during the investigation.

Reviewing this material is an important part of determining whether the Crown can prove possession and whether police complied with the Charter.

How Does the Crown Prove That a Substance Is an Illegal Drug?

The prosecution must establish the nature of the substance forming the basis of the charge. Police may seize suspected controlled substances and submit them for analysis. The Crown’s evidence can therefore include certificates, laboratory evidence or other admissible evidence concerning the identity of the substance. The defence can examine the evidence relating to seizure, handling, continuity and identification of the alleged controlled substance. The fact that something visually resembles an illegal drug does not by itself eliminate the Crown’s obligation to prove the charge.

What Are the Penalties for Drug Possession?

The potential penalty depends significantly on the controlled substance involved and the circumstances of the case. Section 4 of the CDSA establishes different sentencing ranges based on the schedule containing the substance.

For possession of a Schedule I substance, the offence is hybrid. If prosecuted by indictment, the maximum sentence is seven years’ imprisonment. Summary conviction penalties are different and can also depend on whether it is a first or subsequent offence. Different penalties apply to possession involving substances in other schedules.

This is why it is more accurate to assess the specific substance and charge rather than state that every drug possession offence carries the same penalty.

What Factors Can Affect the Outcome or Sentence?

Where there is a conviction, the outcome can depend on factors including:

• the controlled substance involved;
• quantity;
• circumstances of possession;
• the accused’s criminal history;
• whether other charges are involved;
• aggravating or mitigating circumstances;
• the accused’s personal circumstances; and
• how the Crown proceeds.

A charge does not automatically result in the maximum available sentence. Sentencing is an individualized process.

Will I Get a Criminal Record for Drug Possession?

A conviction can result in a criminal record. The consequences of a criminal record can extend beyond the sentence imposed by the court. Depending on an individual’s circumstances, a conviction can potentially affect:

• employment;
• professional licensing;
• volunteer opportunities;
• immigration status;
• international travel; and
• future involvement with the criminal justice system.

Being charged, however, is not the same as being convicted. The evidence and available defence options should be reviewed before assuming what the outcome will be.

Can a Drug Possession Charge Affect Travel to the United States?

A criminal conviction can create international travel concerns, but another country’s admissibility rules are determined by that country’s laws. The consequences can depend on the specific offence, outcome and individual’s circumstances. Someone concerned about cross-border travel should obtain advice specific to their situation rather than assuming that every possession charge or conviction produces the same result.

What Are Common Defences to Drug Possession Charges?

There is no single defence that applies to every possession charge. The defence depends on how the drugs were discovered and what evidence connects the accused to them.

Lack of Knowledge

The Crown must establish knowing possession. If the accused genuinely did not know the controlled substance was present, the prosecution may have difficulty establishing possession. This issue commonly arises where drugs are discovered in shared spaces or belongings accessible to other people.

Lack of Control

Possession involves more than simply being near a controlled substance. Evidence concerning who exercised control over the substance or location can become important. For example, drugs discovered in a common area of a residence occupied by several people may create different issues from drugs discovered directly on someone’s person.

Unlawful Search and Seizure

A major issue in many drug cases is whether police lawfully obtained the evidence. Section 8 of the Charter protects against unreasonable search and seizure. The defence may examine:

• whether police required a warrant;
• whether a warrant was validly obtained;
• whether sufficient grounds supported the warrant;
• whether police exceeded the scope of the authorization;
• whether a warrantless search was legally justified; and
• whether the accused’s Charter rights were otherwise violated.

If evidence was obtained through a Charter breach, the defence may seek its exclusion under section 24(2) of the Charter. Exclusion is not automatic simply because a breach occurred. The court applies the legal test governing whether admitting the evidence would bring the administration of justice into disrepute.

Challenging a Search Warrant

The existence of a search warrant does not necessarily prevent the defence from challenging a search. A lawyer can review the material used by police to obtain the warrant and the way the warrant was executed. Depending on the circumstances, issues can arise concerning the reliability or sufficiency of information provided to the authorizing justice. Search-warrant challenges can be legally complex, but they can be important where seized drugs form the foundation of the prosecution.

Challenging Statements to Police

Statements made by an accused person can sometimes provide the Crown with evidence of knowledge or control. For example, a statement acknowledging ownership of a bag or knowledge of what was inside it may become significant. The defence can examine the circumstances in which statements were obtained, including whether the accused was detained, informed of their right to counsel and provided a reasonable opportunity to exercise that right.

Challenging the Identity of the Substance

The Crown must prove that the substance involved falls within the applicable controlled-drug provisions. Evidence concerning laboratory testing, continuity and handling of exhibits can therefore be reviewed. Where there are problems with the evidence identifying the substance, that may affect the prosecution’s ability to prove the charge.

Challenging Possession for the Purpose of Trafficking

Where an accused is charged with possession for the purpose of trafficking, the defence may dispute the alleged trafficking purpose. The Crown may rely on quantity, packaging, cash, scales, communications or expert evidence to argue that the drugs were intended for distribution. The defence can examine whether that evidence actually establishes a trafficking purpose beyond a reasonable doubt. Possessing a controlled substance and possessing it for the purpose of trafficking are different allegations with different elements.

Can Drug Possession Charges Be Withdrawn?

Potentially. A charge does not automatically result in a conviction. After reviewing the disclosure, defence counsel may identify weaknesses involving:

• proof of possession;
• knowledge;
• control;
• identification of the substance;
• the legality of the search;
• statements made to police;
• Charter violations; or
• other evidentiary issues.

These issues can potentially be raised with the Crown. Depending on the circumstances, a case may result in withdrawal, another resolution or an acquittal following trial. No particular outcome can be guaranteed.

Are Alternatives to Prosecution Available for Simple Drug Possession?

Canada’s approach to simple drug possession includes specific statutory principles concerning prosecution. Section 10.1 of the Controlled Drugs and Substances Act recognizes that problematic substance use should be addressed primarily as a health and social issue and that interventions should reflect principles including reducing stigma and considering alternatives to judicial sanctions where appropriate. The availability of a particular alternative depends on the circumstances. A defence lawyer can assess the charge, the accused’s history and the Crown’s position to determine what resolution options may be available.

What If I Have a Prescription?

Lawful authorization to possess a controlled substance can be important. The CDSA prohibition applies to possession except as authorized under the applicable regulatory framework. If the substance was lawfully prescribed or otherwise lawfully possessed, documentation concerning that authorization should be preserved and provided to your lawyer. The specific substance, prescription and circumstances still need to be reviewed.

Is Cannabis Possession Still a Crime?

Cannabis is legal in Canada within the framework established by the Cannabis Act and provincial legislation, but legalization does not mean cannabis can be possessed without restriction. Federal law establishes limits concerning matters such as possession quantities and youth possession, while provincial legislation regulates additional aspects of legal cannabis use and distribution. A cannabis-related allegation should therefore be assessed under the legislation actually giving rise to the charge rather than automatically treated as a CDSA possession case.

Should I Plead Guilty to a Drug Possession Charge?

A guilty plea should not be entered simply because police found a controlled substance. Before deciding how to proceed, it is important to understand:

• what the Crown must prove;
• where the drugs were discovered;
• what evidence connects you to them;
• whether you made statements;
• whether the search was lawful;
• whether Charter issues exist;
• what substance is alleged;
• what resolution options are available; and
• what consequences could follow a conviction.

Disclosure should be reviewed before making an informed decision about the case.

Do I Need a Lawyer for a Drug Possession Charge?

Drug possession allegations can appear straightforward when police physically recover a controlled substance, but the legal issues can be more complicated. A criminal defence lawyer can examine both possession itself and how police obtained the evidence. Depending on the case, a lawyer can:

• review the charge;
• explain the potential consequences;
• obtain disclosure;
• analyze police grounds for detention or arrest;
• review searches and seizures;
• examine search warrants;
• challenge evidence where appropriate;
• assess whether the Crown can prove knowledge and control;
• review laboratory evidence;
• identify Charter issues;
• communicate with the Crown;
• pursue an appropriate resolution; and
• defend the charge at trial where necessary.

How De Boyrie Law Defends Drug Possession Charges

At De Boyrie Law, preparing a drug possession defence begins with examining how the investigation developed and what actually connects the accused to the substance. Important questions can include:

• Why did police approach or detain the accused?
• Where were the drugs found?
• Who had access to that location?
• Did the accused know the substance was there?
• What evidence establishes control?
• Was the search authorized?
• Did police have lawful grounds for their actions?
• Were statements made?
• Were Charter rights respected?
• Can the Crown prove the identity of the substance?
• Does the evidence support simple possession or a more serious allegation?

The answers help determine whether the appropriate strategy involves challenging possession, seeking exclusion of evidence, disputing another element of the offence, negotiating with the Crown or proceeding to trial.

Frequently Asked Questions About Drug Possession Charges

Can I Be Charged If the Drugs Weren’t Mine?

Potentially, but ownership and possession are not necessarily the same legal concept. The Crown must prove the elements of possession. If drugs belonged to another person and you did not knowingly possess or control them, that can become an important issue in the defence.

Can I Be Charged for Drugs Found in a Shared Apartment?

Potentially. However, simply living in a residence where drugs are discovered does not automatically establish that you possessed them. The location of the drugs, your knowledge of them, access to the area and other evidence can become important.

Can Everyone in a Car Be Charged if Police Find Drugs?

Police may arrest or charge more than one person depending on the circumstances, but the Crown ultimately has to prove the case against each accused. Being a passenger in a vehicle containing drugs does not automatically establish knowing possession.

What If Someone Says the Drugs Belonged to Me?

A statement from another person can become part of the Crown’s evidence, but its credibility and reliability can be challenged. The defence should examine whether other evidence supports or contradicts that person’s account.

What If Someone Else Admits the Drugs Were Theirs?

That can be important evidence, but it does not automatically determine the outcome. The Crown may still allege joint possession or rely on other evidence. The entire circumstances need to be considered.

Can Police Search My Phone After a Drug Arrest?

Police access to cellphone contents engages significant privacy interests. Whether police can lawfully search or obtain information from a device depends on the circumstances and legal authority relied upon. If cellphone evidence forms part of a drug prosecution, the defence should examine how police obtained it.

Can Police Use Text Messages as Evidence of Drug Possession?

Potentially. Messages can be used as evidence where they are lawfully obtained and admissible. Their meaning and context can also be disputed. Text messages may become particularly important where police allege possession for the purpose of trafficking.

Is Drug Possession a Federal Offence?

Controlled drug offences under the CDSA are federal criminal offences. They are prosecuted through Canada’s criminal justice system even though proceedings occur in provincial courts.

Is Cocaine Possession a Criminal Offence?

Yes. Unauthorized possession of cocaine can result in a charge under the Controlled Drugs and Substances Act. The circumstances of possession and the evidence obtained by police determine how the case should be defended.

Is Fentanyl Possession a Criminal Offence?

Yes. Unauthorized possession of fentanyl can result in criminal prosecution under the CDSA. The potential consequences can be serious, making the legality of the search and proof of possession particularly important.

Can a First Drug Possession Charge Be Withdrawn?

Potentially. Being a first-time accused can be relevant to resolution discussions, but withdrawal is not automatic. The evidence, substance, quantity, circumstances and available alternatives all need to be considered.

Will I Go to Jail for a First Drug Possession Charge?

Jail is not an automatic result of a first possession charge. Potential outcomes depend on the substance, manner of prosecution, circumstances, criminal history and other factors. Before considering sentencing, the first question is whether the Crown can prove the charge.

Can an Illegal Search Get My Charges Dismissed?

An unlawful search can have a major effect on a drug prosecution, but a Charter breach does not automatically cause a charge to disappear. The defence may seek exclusion of evidence under section 24(2) of the Charter. If critical drug evidence is excluded, the Crown may then be unable to prove the charge, but the result depends on the particular case.

Speak With a Drug Possession Lawyer

Being arrested for drug possession does not mean you will be convicted. The Crown must prove the required elements of the offence, including that the accused knowingly possessed the controlled substance. Drug cases can also raise significant Charter issues because the prosecution frequently depends on evidence obtained through police searches.

De Boyrie Law represents individuals facing drug possession and other drug-related criminal charges and can review the circumstances of the arrest, the search and the evidence against you.

Call (647) 931-0248 or request a free consultation to discuss your drug possession charge.