For the prosecution of a case involving drugs, the Crown must establish that the substance involved is actually a prohibited substance. This determination is made by adhering to the definitions set out in the Controlled Drug and Substances Act.
A list of some of the common drugs which are illegal to have in your possession in Canada are set out below:
- GHB (a designer drug commonly referred to as a “date rape” drug)
- Crystal methamphetamine
- Magic mushrooms
The Crown has the responsibility of proving the drug is illegal. In Ontario, to have the drug submitted for examination, the prosecutor must first submit the substance to Health Canada for analysis and receive the results of same in advance of the trial. The analyst, after performing a series of tests, will verify whether the drug is a narcotic.
Assuming the substance is analyzed to be an illegal drug, the Crown will then serve a Certificate of Analyst on the defence. Upon being served with a Certificate of Analyst stating the substance is an illegal narcotic, the defence will normally admit the substance is an illegal drug at trial. The defence may proceed to defend the charge based on a lack of other evidence or resolve the matter by way of a negotiated guilty plea to achieve the lightest possible sentence. If the matter proceeds to trial, the Crown will then submit the Certificate of Analyst and the drug in question as exhibits at the trial. If the Crown inadvertently neglects to have the substance analyzed the defendant may be acquitted.
Crown Counsel is required to prove beyond a reasonable doubt that the individual charged had an illegal drug in his or her possession. The prosecutor can do this if they establish:
- The person charged knows what the substance is.
- The person charged had some level of control over the substance.
Proving Knowledge of an Illegal Drug
Establishing that someone had knowledge of an illegal drug is sometimes difficult. Having an illegal substance in the pocket of your jeans may not constitute actual possession if it can be proven you did not have knowledge that the drug existed.
For example, someone may wear a jacket or pants that belong to a relative or friend. The borrower of the item of clothing may not be aware of the fact that an illegal substance was left in one of the pockets. As such, the person being charged did not have knowledge of the existence of illegal drugs. Without knowing the drugs were present, a person cannot legally be found guilty of the charge of possession.
Let us consider another situation in which someone may not know the substance in his or her possession is an illegal drug. An individual who has marijuana on his or her person may genuinely think it is a bag of herbs used for cooking. In this circumstance, the prosecutor may not be able to prove beyond a reasonable doubt that the person charged had the necessary knowledge to determine that he or she was in possession of an illegal substance.
Claiming you believed one illegal drug was another illegal drug is not a valid defence. However, claiming you thought you had cocaine when you really had heroin will not get your charges dropped.
Criminal Defence Lawyers in Ontario can Help with Your Drug Possession Case
Under our strict Canadian drug laws, if you are convicted, your capacity to travel to other countries will be extremely limited due to your criminal record. Imagine losing the option of visiting the United States, Europe or other countries. A conviction for drug possession may end your career and also hinder your ability to find employment. You may also receive a lengthy jail sentence or substantial fines if you are found guilty of drug-related crimes.