Criminal law

Drugs

What does it mean to be “in possession of an illegal substance”?

In order for a person to be considered “in possession of an illegal substance”, three things have to be shown:

• First, it must be proven that the person did in fact have the illegal substance in his possession.
  
  There are two ways to be in possession of an illegal substance. A person can be in actual possession of the illegal substance (for example, when the drug is found in his bag, on his person, or in his house). Otherwise, a person is considered to be in possession if he asks someone else to keep or store the substance for him.
  
  
• Second, it must be proven that the person knew that he was in possession of an illegal substance and knew what that substance was.
  
  So a person can’t be convicted of simple possession if he truly believed he was carrying a bag of flour - even if the substance was in fact a drug. Be careful, though - you can be held responsible if you agree to transport a package without first finding out what is inside. Your failure to ask questions might be considered equivalent to knowing what’s inside the mysterious package. The decision to remain in the dark is called “willful blindness” in legal language, and it can be enough to convince the judge of your guilt.
  
  
• Finally, it must be proven that the person had a certain degree of control over the drug found in his possession.
  
  Essentially, this means that the person voluntarily kept the drug and was able to use it as he pleased.

In Nestor’s situation, possession can be easily established. First of all, he had actual possession of the illegal substance. After all, he had put it in his pocket that very morning. Also, he knew very well that what he had was a drug. Finally, he bought the marijuana in order to smoke it, which means he definitely had control over it.

What is "simple possession"?

In our little scenario, Nestor was arrested for having an illegal substance in his possession. If you read the law itself, this sort of offence is just called “possession”. “Simple possession” isn’t an actual term used in the legislation.

However, people often use the term “simple possession” to distinguish it from the more serious offence of “possession for the purpose of trafficking”. The tiny quantity of marijuana that Nestor was carrying and the fact that nothing indicated that he intended to sell it leads us to conclude that this was a case of “simple possession”.

To find out more about drug trafficking, see the Infosheet entitled Caught in traffic.

What substances are considered to be drugs?

The list of substances that are classified as drugs is too long to include here. However, there are certain well-known substances that police officers encounter frequently, like ecstasy and cocaine. Other drugs are also well-known to police, like cannabis (more often referred to as marijuana, pot, or weed) and its derivative, hashish (or hash).

There is also opium and its derivatives: morphine, heroin, methadone and codeine. Other prohibited substances include “magic mushrooms” (psilocybin), LSD (acid) and PCP (often referred to as mescaline). Finally, even though it is not illegal to be in possession of certain drugs, such as barbiturates, anabolic steroids, Librium, and Valium, it is nevertheless illegal to traffic them and to possess them for the purpose of trafficking.

Is it illegal to possess certain drugs even if it’s just for your own personal use?

Absolutely. You may have heard that possessing drugs for personal use is legal, but that’s not true for most drugs! Basically, a teenager can be charged with possession even if he only had a certain drug for personal use. Under the law, the presence of an illegal substance (even a minimal amount) on a person is sufficient to charge him with possession. So the fact that Nestor only had a very small amount on him doesn’t make it any less of an offence.

Is it illegal to grow pot on your property?

Yes. Whether it’s in your yard, house, or anywhere else, it is illegal to grow, produce, cultivate, or harvest marijuana. Even possessing fertile cannabis seeds is an offence.

It’s also an offence to grow opium poppies, from which heroine and morphine are derived, or coca, which is used to produce cocaine and crack.

What are the consequences of being charged with possession of an illegal drug?

The court considers several factors before reaching its decision. The judge takes into account any previous offences, various sentencing principles, and the pre-sentence report before coming to her decision. The nature of the substance and the quantity found, along with other factors, will help determine the severity of the sentence.

The consequences that a young person faces for possession can range in severity, from a reprimand to a custody and supervision order for up to two years.

For a first-time offence, another option is to refer the file to the provincial director for extrajudicial sanctions.

To find out more, read the Infosheets entitled The pre-sentence report: The name says it all! and Sentencing.