If you are facing a drug charge, particularly for the first time, you will certainly have a lot of questions. Like any area of law, there are specific terms and language that lawyers and the justice system use when talking about drug offences. Here are some common drug charge terms that can sometimes confuse clients.
CDSA: This refers to the Controlled Drugs and Substances Act. While other criminal offences will fall under the Criminal Code of Canada, a drug charge fall under the CDSA. If you have been charged with a drug offence, you have been charged under the CDSA, rather than the criminal code. The CDSA became law in 1996 and replaced the Narcotic Control Act. The CDSA regulates drugs in Canada. It established eight Schedules of controlled substances.
There are eight Schedules of controlled substances under the CDSA. If you’ve been arrested and are facing a drug charge, the substance will fit into one of the Schedules. For example, if you have been charged with possession of Cocaine, your charge in front of the court would read like this:
Sample Drug Charge:
John Smith…did unlawfully possess a substance included in Schedule I to wit: cocaine, contrary to Section 4, Subsection 1 of the Controlled Drugs and Substances Act.
Simple Possession Drug Charge:
Simple possession refers to section 4(1) of the CDSA. It is “simple” compared to possession for the purpose of trafficking (which is explained below). This section states:
“Except as authorized under the regulations, no person shall possess a substance included in
Schedule I, II or III”
The penalty for a simple possession drug charge conviction depends on which Schedule the substance falls under.
Another question that arises when discussing possession is what constitutes possession. If
someone brings marijuana to a party at your house, can you be charged? What if your
roommate has drugs in the apartment but you don’t know? etc.
The definition of possession can be found under section 4(3) of the Criminal Code of Canada:
(a) a person has anything in possession when he has it in his personal possession or knowingly
(i) has it in the actual possession or custody of another person, or
(ii) has it in any place, whether or not that place belongs to or is occupied by him, for the use or benefit of himself or of another person; and
(b) where one of two or more persons, with the knowledge and consent of the rest, has anything in his custody or possession, it shall be deemed to be in the custody and possession of each and all of them.
Essentially, what this means is that you can have personal possession or have joint possession with someone else, as long as you have knowledge and control over the substance.
This refers to section 4(1) of the CDSA, which is discussed above. You may hear defence counsel or the Crown refer to someone being charged with a 4(1). It means they have been charged with possession.
You may hear the term “P4P”. This stands for “possession for the purpose” of trafficking. This is another drug charge that comes from the CDSA. It refers to section 5(2) of the Act, which reads:
“No person shall, for the purpose of trafficking, possess a substance included in Schedule I, II, III or IV.”
This is exactly as it sounds. The person has been charged that the substance that they possess is in their possession for the purpose of trafficking, rather than for personal use, as in simple possession.
The determination as to whether possession is simple possession or possession for the purpose of trafficking is typically based on the amount of the substance that’s found but there are other indicators, as discussed below.
Trafficking is a term that most people are familiar with but sometimes they are not aware of what constitutes a trafficking drug charge.
Trafficking is an offence under section 5(1) of the CDSA:
“No person shall traffic in a substance included in Schedule I, II, III or IV or in any substance represented or held out by that person to be such a substance”.
The definition of trafficking is found earlier in the Act, under section 2(1):
“traffic means, in respect of a substance included in any of Schedules I to IV,
(a) to sell, administer, give, transfer, transport, send or deliver the substance,
(b) to sell an authorization to obtain the substance, or
(c) to offer to do anything mentioned in paragraph (a) or (b),
otherwise than under the authority of the regulations.”
While this definition seems straight forward, many people may not realize that they can be found to have trafficked in a substance by giving it to their friends. There does not have to be money exchanged.
Indicia of Trafficking:
As discussed above, there are certain indicators that suggest that possession of a substance is for the purpose of trafficking, rather than for personal use. You may hear these referred to as “indicia of trafficking”. Indicia of trafficking include:
– the amount of the substance that is found. Obviously, a small amount would suggest personal use, while a large amount could suggest trafficking
– presence of a scale
– substance is packaged (as for sale), or presence of packaging materials
– presence of cellphone/multiple cellphones
– presence of cash
Any of these indicators can signal to the police that the substance found is for trafficking, rather than personal use.
Indicia of trafficking has to be proven and believed at court. The prosecution will call a police expert witness to testify that the presence of these indicators suggest trafficking.
ITO stands for “information to obtain”. Usually, everyone is aware of what a search warrant is, thanks to crime dramas. But they may be less familiar with how the police get search warrants in Canada.
In order for the police to get a search warrant they must to to a Justice of the Peace with an Information to Obtain (“ITO”). The ITO explains why the police believe evidence will be obtained by searching a particular person or place. They have to provide details in order for the Justice of the Peace to agree to it and it is possible for it to be challenged at trial.
People often know the term Crown. The Crown Attorney (or assistant Crown Attorney) works for the Ministry of the Attorney General, which is an Ontario Ministry.
When there’s a drug charge, the case is not prosecuted by the Ministry of the Attorney General but rather by the Public Prosecution Service of Canada. The prosecutor may work directly for the PPSC or they may be an agent (private lawyer) that has a contract with the PPSC.