What is drug possession?
Drug possession is the most common drug-related offence. In order to prove possession, the Crown Prosecutor must prove that the item seized is a controlled substance as defined in the Controlled Drug and Substance Act and that the accused had knowledge and control of the substance. The most common controlled substances are:
How does the Crown Prosecutor prove the substance is illegal?
In order for the Crown Prosecutor to prove the substance seized is illegal, they will have it tested by Health Canada. A small sample is provided for testing and once complete, a Certificate of Analysis is provided and disclosed to the prosecutor and defence counsel.
To prove the substance is on the list of controlled substances, the prosecutor will tender the Certificate of Analysis into evidence at trial. If the prosecutor fails to tender the certificate, it will likely result in an acquittal.
How is knowledge of the controlled substance proven?
Knowledge is an essential element of possession. Knowledge requires that the accused had knowledge of “the criminal character of the item in issue.” This means the accused knew that the substance was illegal. The Crown must prove this knowledge beyond a reasonable doubt. As very few accuseds will take the stand to admit they had knowledge of the controlled substance, the Crown Prosecutor will attempt to prove knowledge by circumstantial evidence.
Often the drugs are found on a person, in their vehicle or in their home. To prove the element of knowledge, the location of the drugs often depends on the visibility of the drugs and the accused’s connection to that location.
For example, if drugs were found in a vehicle, the judge will look at the control the accused had over the vehicle and the likelihood of the accused’s knowledge that the drugs were present. If an accused is sitting in the passenger’s seat of a friend’s vehicle and drugs were found in the trunk, it will be very difficult for the prosecutor to prove knowledge. However, if the accused was in the driver’s seat of his own vehicle and the drugs were in plain view, the prosecutor will have greater success proving knowledge.
How is control of the controlled substance proven?
The element of control requires that the prosecutor prove that an accused had the ability to exercise some measure of control or power over the substance. It is not necessary for the prosecutor to prove that such power is in fact exercised.
Like knowledge, control is often proven based on where the substances are located. For example, if the drugs are found in the accused’s bedroom, a judge will likely find that the accused had control. However, if the drugs are found in a roommate’s closet, not in the open, the prosecutor will have a very difficult time proving control.