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Drug possession is not governed by the Criminal Code of Canada, but it remains a serious offence that can affect your record and your future. Retaining an experienced drug possession lawyer is an important step in fighting a drug charge in Toronto or anywhere in Ontario.
Drug possession cases often turn on questions of knowledge and control, as well as the legality of the police search or seizure that led to the drugs being discovered. A defence may involve challenging whether the Crown can prove possession beyond a reasonable doubt, seeking the exclusion of evidence obtained in breach of the Charter, or assessing whether diversion or another resolution is available.
Igor Vilkhov is the founder and principal lawyer of Vilkhov Law Professional Corporation. A graduate of the University of Windsor Law School, Igor practises criminal defence in Toronto and throughout the Greater Toronto Area.
In a drug possession case, Igor examines how the substance was discovered, whether the accused can legally be connected to it, and whether police complied with the Charter when conducting a search, detention or arrest. Where drugs are found in a shared vehicle, residence or other location, the Crown must still establish the required knowledge and control.
Benson (“Ben”) Wilson is a criminal defence lawyer at Vilkhov Law whose practice focuses exclusively on criminal defence. He earned his J.D. from the University of Ottawa after studying Global and International Studies at Carleton University.
Ben represents accused persons throughout the criminal process, including bail, disclosure review, resolution discussions and trial preparation. In possession cases, careful review of police notes, search warrant materials, laboratory evidence, and the circumstances under which the substance was located can be important in determining whether the Crown can prove the charge.
Being charged with drug possession means you are alleged to have unlawfully possessed a controlled substance listed in the Controlled Drugs and Substances Act (CDSA). Section 4(1) of the CDSA makes it an offence to possess a Schedule I, II, or III substance. Depending on the substance and its quantity, a conviction can lead to a fine, a criminal record, or imprisonment.
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Possession means you had both knowledge and control of the substance. It does not matter whether the drugs actually belonged to you. Knowledge means you knew what the substance was, or were wilfully blind to its presence. Control means you had the ability and opportunity to exercise some measure of authority over it.
The Crown must prove both knowledge and control to secure a conviction, and possession cases are not always straightforward. A drug possession lawyer can assess whether these elements are actually made out on the evidence, and can determine whether the drugs were seized in a way that respected your Charter rights, which can significantly affect the outcome of your case.
When you are arrested, police must inform you of your right to counsel. It is always advisable to exercise this right and obtain legal advice before speaking to police.
Depending on the substance, its quantity, and your personal circumstances, including any criminal record, you may be released directly by police under an undertaking with conditions, or held for a bail hearing. Drug possession is a hybrid offence, but all hybrid offences are treated as indictable until the Crown elects, which means you will typically attend a police detachment for fingerprinting ahead of your first court appearance.
If you are held for bail, you must be brought before a judicial official within 24 hours of arrest. Everyone has a constitutional right to reasonable bail, and the ladder principle, reaffirmed by the Supreme Court of Canada in R. v. Antic, 2017 SCC 27, requires that the least restrictive conditions be imposed unless the Crown shows they are not appropriate in the circumstances. Experienced bail counsel can hold the Crown to that standard rather than accepting conditions that are more restrictive than necessary.
The court considers three grounds when deciding whether detention is justified: whether you are a flight risk, whether you pose a risk to the public, and whether your detention is necessary to maintain public confidence in the administration of justice given the seriousness of the allegations. Breaching any bail condition can lead to further charges and the revocation of your release.
Drug offences fall under the jurisdiction of the Public Prosecution Service of Canada (PPSC), which prosecutes CDSA matters using federal Crown counsel rather than the provincial Crown that handles most other charges. Your lawyer will request full disclosure of the Crown's evidence, which can include search warrant materials, lab analysis, and police notes.
Once disclosure has been reviewed, a Crown pre-trial (CPT) is typically scheduled to discuss the Crown's position, and a judicial pre-trial (JPT) may follow. If you are charged with possessing a Schedule I or II substance, or a Schedule III substance where the Crown proceeds by indictment, you will be asked to elect your mode of trial: a provincial court judge, a judge alone in the Superior Court, or a judge and jury.
Penalties for simple possession are the same regardless of whether the substance is Schedule I, II, or III on summary conviction, but differ by schedule if the Crown proceeds by indictment:
| Mode of Prosecution | Penalty |
|---|---|
| Summary conviction, first offence | Fine of up to $1,000 and/or up to 6 months imprisonment |
| Summary conviction, second or subsequent offence | Fine of up to $2,000 and/or up to 1 year imprisonment |
| Indictment, Schedule I substance | Up to 7 years |
| Indictment, Schedule II substance | Up to 5 years less a day |
| Indictment, Schedule III substance | Up to 3 years |
Being charged with even a simple drug possession offence can be a stressful experience, particularly if it is your first criminal charge. A drug possession lawyer can:
All criminal cases are fact-specific, and retaining a lawyer early is particularly valuable in possession cases, which often turn on search and seizure issues that can affect what evidence is admissible against you. See our page on drug trafficking charges if your matter involves an allegation that goes beyond simple possession.
Yes, for any Schedule I, II, or III substance under the CDSA, subject to the exception for cannabis possessed within the legal personal limit, which is no longer a criminal offence.
Not necessarily. Depending on the circumstances, a first-time possession charge can sometimes be resolved through a diversion program or with a discharge that avoids a formal conviction. Whether that is available depends on the substance, the quantity, and your record.
Only the Crown can withdraw a charge once it is laid. This is more likely where there is a genuine issue with how the evidence was obtained, such as an unlawful search, or where the Crown concludes the elements of possession cannot be proven.
Being present where drugs are found is not the same as being in possession of them. The Crown must prove you had both knowledge of the substance and some measure of control over it, which is often a genuine issue where a space is shared with others.
It is strongly advisable. Even a first offence can result in a criminal record with consequences for travel, employment, and future opportunities, and a lawyer can assess options, including diversion, that may not be obvious without legal advice.
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