Criminal law

Drugs

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

To be found guilty of possession of an illegal drug such as marijuana, also called an illegal “substance”,, the law requires three things:

• First, the person must have possession of the substance.
  
  There are two types of possession. A person can be in actual possession, for example, when the drug is found in his bag, on his person, or in his house. But a person is also in possession if he asks someone else to keep or store the substance for him.
  
  
• Second, it must be proven that the person knew he was in possession of an illegal substance and knew what that substance was.
  
  For example, a person can’t be convicted of simple possession of an illegal substance if he truly believed he was carrying a bag of flour, even if the substance was in fact a drug. But be careful: you can be held responsible if you agree to transport a package without asking any questions to find out what is inside. The decision to remain in the dark is called “willful blindness” in legal language, and it can be enough to convince the judge you are guilty.
  
  
• Third, to be in “possession” under the law, a person must have a certain degree of control over the drug.
  
  Essentially, this means that the person voluntarily kept the drug and was able to use it as he pleased.

In Nestor’s situation, it’s clear he was in possession. First of all, he had actual possession of the illegal substance. After all, he put it in his pocket that very morning. Also, he knew it was a drug. Finally, he bought the marijuana 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 that deals with this offence, it is just called “possession”. “Simple possession” isn’t a term used in the law.

However, people often use the term “simple possession” to distinguish it from the more serious offence of “possession for the purpose of trafficking”. (Trafficking means to sell, give, transport, send, deliver or administer.)
Since Nestor was carrying a tiny quantity of marijuana and nothing indicated he intended to sell it, it was a case of “simple possession”.

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

What kinds of drugs are illegal?

The list of illegal drugs, also called illegal “substances” is too long to include here. However, there are some that the police encounter often, such as ecstasy, methanphetamine (crystal meth) and cocaine.

Other drugs well-known to police include cannabis (often referred to as marijuana, pot, or weed), hashish (or hash),heroin. “magic mushrooms” (psilocybin), LSD (acid), PCP and mescaline.

Finally, even though it is not illegal to be in possession of certain drugs, such as anabolic steroids, and Valium, it is illegal to traffic them and possess them for the purpose of trafficking. (Trafficking means to sell, adminster, give, transport, send or deliver.)

Can you have illegal drugs if they are just for your own use?

No. You may have heard that possessing drugs for personal use is legal, but that’s not true for most drugs! Under the law, a person can be charged with possession even if he or she is only carrying a small amount of an illegal drug. The fact 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 or harvest marijuana. Even possessing fertile cannabis seeds is an offence.

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

What are the penalties for possession of an illegal drug?

The judge considers several factors before reaching a decision about a penalty. These factors include any previous offences, various sentencing principles set out in laws (for example, promoting a sense of responsiblity in people who have broken the law) and recommendations in the pre-sentence report (a report about the person accused of a crime that makes recommendations about what kind of sentence to impose). The nature and quantity of the substance are also considered.

For young people, the penalites can range from a reprimand to placement in a rehabilitation centre.

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