The topics in the Dial-A-Law series provide only general information on legal issues within the province of Alberta. This service is provided by Calgary Legal Guidance funded in part by the Alberta Law Foundation. The purpose is to make you aware of your legal rights and responsibilities. This is not legal advice. If you require legal advice, you should contact a lawyer.
This topic will discuss drug offences under the Controlled Drugs and Substances Act.
The Controlled Drugs and Substances Act states that no one shall possess a substance that is listed in the Act. The Act lists a large variety of banned substances including opium, heroin, methadone, cocaine, codeine, oxycodone, morphine, PCP or “angel dust”, Psilocybin or “magic mushrooms”, LSD, and all forms of cannabis, including marijuana, hashish and their oils. Some substances are completely banned, while others are listed as only available under certain limited conditions such as a doctor’s prescription.
Personal possession means possessing a drug on your person or in your immediate vicinity. The offence of possession may be laid where a police officer finds a person with a small quantity of a prohibited drug and the arresting police officer believes that the accused had this drug for personal consumption. The Crown Prosecutor will be required to prove the following elements of the offence:
- That you had physical possession or custody of the prohibited drug;
- That you knew that you physically possessed the prohibited drug;
- That you intended to possess the drug;
- That the drug is a prohibited drug under the Controlled Drugs and Substances Act
You may also be charged if you knew someone had illegal drugs and gave your consent and exercised control over the drug in some way. For example, if you lived in a home for 2 weeks with a friend and you knew and consented to the fact that he was keeping prohibited narcotics in the bathroom, you could be charged with constructive possession if the drugs were discovered. Thus, even though you did not have physical or personal possession of the drugs, due to the fact that you knew about them, consented to them being there or could have controlled them being there, you will be found guilty of the offence. Similarly, if you are driving a friend who has drugs in their possession, you may be charged with joint possession if it is determined that you were aware of and consented to the drugs being in the car. The Court will infer that you had control over the drugs as well since you could have denied your friend entry into your vehicle if he refused to get rid of the drugs.
The penalties for possession of a controlled substance can be very serious. The Controlled Drugs and Substances Act provides for penalties that vary with the type and amount of drug possessed. It is not legal to possess any amount of any substance prohibited under the Controlled Drugs and Substances Act, even so-called “soft” drugs like marijuana. Possession of marijuana up to 30 grams or hashish up to 1 gram is a summary conviction offence that carries a penalty of 6 months imprisonment or $1,000 fine or both. A second offence may result in up to 1-year imprisonment or $2,000 fine or both.
In most other cases, the Crown has the option of proceeding by indictment or by summary conviction. Indictable offences carry larger maximum penalties. For example, possession of Amphetamines, LSD, mescaline or psilocybin carries a maximum sentence of 3 years imprisonment. Possession of cocaine or heroin carries a maximum penalty of imprisonment for 7 years on an indictable prosecution. Possession of marijuana and hashish if prosecuted as an indictable offence could lead to a maximum of close to 5 years in prison. A conviction for any drug possession offence, even marijuana, will most likely prevent you from being granted entry into other countries, particularly the United States.
A more serious charge under the Act is trafficking in or possessing for the purposes of trafficking any controlled substance under the Act. This charge is usually laid when a person has some equipment, such as weigh scales or plastic bags generally associated with the distribution or sale of drugs, or is found with a quantity too large to be reasonably considered personal use. To get a conviction, the Crown prosecutor must prove two essential elements. First, it must be demonstrated that you trafficked in the substance or that you offered to traffic in the substance. Second, the drug or substance must fall within one of the prohibited categories stated in the Controlled Drugs and Substances Act. If you sell, administer, give, transfer, transport, send or deliver the substance, sell an authorization to obtain the substance such as a doctor’s prescription or offer to do any of these things, you could be charged with trafficking in controlled substances. There does not have to be an exchange of money for drugs in order for it to be considered trafficking. Even passing a marijuana joint or buying drugs to give to a friend can meet the definition of trafficking under the Act.
Penalties for trafficking or possession for the purposes of trafficking are serious. Depending on the drug type and amount, the sentence can range from 18 months or a $2,000 fine or both to life imprisonment. For example, marijuana trafficking or possession for the purposes of trafficking may be 5 years less a day for amounts under 30 kilograms and life imprisonment for any amount over 30 kilograms. Trafficking in cocaine or heroin is almost always punishable by imprisonment for two years or more. You may also face life imprisonment if you traffic over 30 kilograms of heroin or cocaine. Importing Trafficking LSD could yield a maximum penalty of 10 years in prison.
Other offences under the Act include importing and exporting drugs, cultivating marijuana, and producing any other illegal drugs as defined by the Act. The offences have varied penalties depending on the type of drug involved. For example, cultivation of marijuana may be up to 7 years imprisonment and production of other drugs can be up to life imprisonment. The production of drugs is the manufacturing, synthesizing or altering the physical or chemical properties of a substance, the cultivating, propagating or harvesting of a substance or any living thing from which the substance may be extracted or otherwise obtained.
If you have been charged with a drug offence, you should consult with a lawyer immediately.