What is Drug Possession?
Drug Possession is the charge which arises from having a substance in your control which you are prohibited to possess. Drug possession is listed under federal legislation called the Controlled Drugs and Substances Act (“CDSA”), not under the Canadian Criminal Code.
It is an offence to possess any substances listed in Schedules I, II, or III of the CDSA, unless you have authorization to do so. The most common substances listed in the CDSA schedules are cocaine, heroin, methamphetamine, fentanyl, opium, morphine, LSD, oxycodone, GHB, PCP (or “angel dust”), and Psilocybin (or “magic mushrooms”).
The provision for drug possession in the CDSA is:
The definition above sets out three types of possession:
- Actual personal possession – the drug is on your person.
- Constructive possession – the drug is not on your person but is kept with another person or at another place with your knowledge and consent, for your own or someone else’s benefit, whether or not the place belongs to you.
- Joint possession – the drug is not on any one person but is kept with another person or place with the knowledge and consent of all persons with joint possession.
Possession in law is made out if you had knowledge and control of the drug, which can be proven by direct or circumstantial evidence. The strength of your case will depend on your individual circumstances. Contact one of our experienced criminal defence lawyers to determine the options available to you.
Investigation of Drug Possession Charges in Kelowna
Police may initiate a drug possession investigation for a number of reasons. Two of the most common events that prompt these investigations are traffic stops and you being lawfully arrested for another offence.
During a traffic stop, if the police observe or smell a drug in your vehicle, they may have grounds to arrest you and/or your passengers for drug possession charges, followed by a more thorough search of the vehicle. Similarly, if you have been placed under arrest lawfully, the police can search your person and you may be charged with drug possession if drugs are found on you.
After the police have gathered their evidence, they will arrest you if they believe you are the perpetrator. If you are not present at the scene, police will track you down or issue a warrant for your arrest.
After you have been charged, police will provide a package with all the evidence they collected, known as the “disclosure package,” to the Crown Prosecutor. You will have the right to access this disclosure package to see the evidence against you. Once you retain one of our lawyers, we will assist you in obtaining the disclosure package, and we will review it with you to assess the strengths and weaknesses of the Crown’s case, as well as any legal defences that may be available to you.
Bail Process and Conditions for Drug Possession Charges in Kelowna
How do I get myself or a loved one out on bail for drug possession charges in Kelowna?
If you have been charged with simple drug possession, it is not uncommon for police to release you at the scene on a release order. Police will provide you with a Promise to Appear document outlining your charges, and any required appearances you must make. This document may also include conditions that you are required to follow while on release.
However, if you have a prior drug conviction of any sort, you are charged with possession of a more serious substance, or of very large quantities, the police or Crown Prosecutor will often ask the Judge to order that you be held in jail until your trial. In these cases, a formal bail hearing may be required to secure your release.
The bail hearing must be held within 24 hours, a period that starts from the moment of arrest or detention rather than the time when you are brought to the district office or Courthouse.
On a weekday, you will be transferred from the district office to the Kelowna Courthouse for your bail hearing.
The address of the Courthouse is as follows:
1355 Water Street
Kelowna BC V1Y 9R3
Loved ones are not able to contact you while you are detained. The police will not release any information to friends or family due to privacy laws. Your lawyer is the only person allowed to contact you. Once the police have verified your lawyer’s details, they will pass on information about your whereabouts, if requested.
Because of these difficulties while you are held in custody, it is best to appoint a competent defence lawyer as soon as possible to manage the legal processes and communicate with loved ones. After an arrest, the police must provide you with the opportunity to call a lawyer in private and, until that happens, stop questioning you.
Once you retain one of our experienced criminal defence lawyers, we will begin working to secure your release on bail.
We will immediately do the following:
- Call the district office where you are being held, or the Kelowna Courthouse if you have been transported, and speak to you.
- Contact the Prosecutor assigned to the bail hearing to start negotiating your release.
- Order and secure a copy of the police information package that details the allegations against you in advance of the bail hearing. This allows the lawyer to make meaningful representations to the court about why you should be released on bail.
- Conduct either an in-person or teleconference bail hearing to secure your release.
When you attend your bail hearing, the Judge will consider the following factors:
- Is detention necessary to secure your attendance in court?
- Is detention necessary to protect the public from a substantial risk of re-offence?
- Is detention necessary in all the circumstances to maintain confidence in the administration of justice?
Although it is unlikely that you will be denied bail for this type of charge, tight restrictions may nevertheless be applied to your release.
Rest assured, we will work to not only secure your release but also to ensure the least restrictive set of bail conditions (including the minimum cash deposit).
In order for our lawyers to secure less stringent conditions, the Judge will need to be satisfied that you will attend court as required and that you pose no significant risk of harm to the public. This may sometimes be difficult in some drug cases, but not impossible.
Our lawyers are often successful at persuading the Crown Prosecutor in charge of bail to let our clients out. If we cannot convince the Prosecutor, we can conduct a formal bail hearing and work to convince the Court. Even if you are ultimately detained, we can appeal that decision on very short notice through a bail review, which is conducted at the Supreme Court of British Columbia.
Where can I pay for bail for drug possession charges in Kelowna?
If you or a loved one are charged with drug possession in Kelowna and granted bail, you may be required to provide a cash deposit to secure release. You can pay bail at any court registry (courthouse) in British Columbia. If you live in Victoria, you can pay bail there for someone detained in Kelowna.
The Kelowna court registry is open from 8:30 – 4:30, Monday to Friday.
The contact details of the registry office at the Kelowna Courthouse are as follows:
1355 Water Street
Kelowna BC V1Y 9R3
To pay your own bail, you can make a payment after you have your hearing, assuming you have sufficient funds with you to do so.
How do I change my release conditions for drug possession charges in Kelowna?
Release on bail for drug possession charges may include restrictions that impact your day-to-day life.
This could include conditions to refrain from:
- Breaking any laws,
- Contacting certain individuals,
- Visiting certain places,
- Using drugs or alcohol,
- Possessing a mobile phone,
- Possessing weapons,
- Leaving your house (i.e. house arrest),
- Staying out beyond a certain time (i.e. curfew), and/or
- Travelling to other provinces or countries.
The Judge can also impose some additional conditions, such as:
- Residing where approved,
- Reporting to probation,
- Attending counselling, and/or
- Maintaining or seeking employment.
A variety of factors will be considered when determining your precise conditions, including:
- Your criminal history,
- Your physical and mental condition,
- The nature of the alleged drug possession,
- The likelihood that you will flee,
- Your history of drug/alcohol usage,
- Whether you have stable employment,
- Whether you have stable living arrangements, and
- Whether you have ties to the community.
If you have already been released, at least for the short term, it is critical that you make arrangements to abide by your conditions until they can be changed. Breaching the terms of your release can result in further charges or a revocation of your bail, as well as a forfeiture of any cash paid to secure your release. It is important to take these conditions seriously.
Once the matter is in court, we can work with the Crown Prosecutor to alter your conditions. This includes either adding exceptions to some of the conditions or eliminating them altogether.
If your court date is far away and you cannot wait until then, we can arrange to have the matter dealt with sooner. Our first priority is always to stabilize your release conditions. That way, you will not feel pressured to plead guilty because of the restrictive terms of your release. Once the conditions are manageable and minimally intrusive to your daily routine, we can focus 100% of our attention on defending the case.
Penalties for Drug Possession Charges in Kelowna
Depending on the nature and quantity of drugs involved, the CDSA penalties for drug possession charges can be significant:
- Where the Crown proceeds by summary election:
- First offence: a maximum fine of $1000 and/or a maximum jail sentence of 6 months;
- Subsequent offence: a maximum fine of $2000 and/or a maximum jail sentence of one year.
- Where the Crown elects to proceed by indictment: a maximum jail sentence of 5 or 7 years, depending on the nature of the drug.
The primary indicator of the maximum possible punishment is the type of drug found in your possession, for example:
- Cocaine, heroin, morphine, oxycodone, codeine, GHB (“date rape” drug), opium, etc.: up to 7 years in jail, up to three years of probation, and/or several thousand dollars of fines;
- Certain synthetic cannabis agents: maximum of 5 years in jail, fines, and/or up to three years of probation;
- LSD and psilocybin (“magic mushrooms”): maximum of 3 years in jail, fines, and/or probation.
Other factors that can impact the sentence range include your personal circumstances, criminal history, and the circumstances of the offence.
Some of the most significant factors that could increase your likelihood of jailtime are:
- The drug or substance falls under Schedule I (more dangerous);
- The drug was brought into Canada from another country; or
- The offence involved a connection with a criminal organization.
A conviction for a drug charge, even of a small degree, can have wide-ranging negative consequences on your future:
- Drug charges may affect your reputation in your community or with social groups;
- Potential employers may refuse or terminate your employment if their business involves handling money or the use of valuable property;
- Your friends, family and peers may view you as unworthy of their trust;
- You may have civil, immigration, or child custody consequences; and/or
- You may have difficulties travelling abroad, including to the United States.
Therefore, even if you intend on accepting responsibility for this type of offence, it is worthwhile to explore your options and consider all the possible penalties. Often, good representation can result in no criminal record. Furthermore, a community-based sentence may be obtained even where the Crown is seeking jail time.
Rest assured, our lawyers will work hard to defend you so that you are not saddled with the consequences of a criminal conviction for drug possession. In fact, we can canvass a range of sentencing options with the Prosecutors that will either leave you with no criminal record or impose minimal restrictions on your liberty after sentencing. To learn more about potential non-criminal resolutions, please visit our Resolutions page, or read our FAQ on resolutions and other sentencing options.
Defending Drug Possession Charges in Kelowna
What are the best defences to drug possession charges in Kelowna?
Possession in law is made out if you had knowledge and control of the drug. This means that the Crown Prosecutor has the burden of proving that you were aware of the illegality of the substance and that you had a degree of authority over it. Drug prosecutions are often highly technical in nature. Just because drugs were involved does not mean a conviction is automatic.
Some of the most common defences for drug charges include:
- Factual Innocence: This is usually the strongest defence because the facts and evidence do not support you being there, interacting with the illicit drug, or other basic elements of the offence. This could include:
- Identity: In some circumstances where the offence was not recorded by surveillance footage, or the footage is poor quality, you may be able to raise an identity defence. For example, authorities could have made a mistake in identifying you as the perpetrator based on the poor quality of the footage. In order to effectively raise this defence, you may need corroborative evidence, such as an alibi to where you were at the time of the offence.
- Not an illicit drug: If a substance is not scientifically proven to be an illicit drug under one of the CDSA schedules, it is not illegal to interact with it. Typically, the substance will be sent to a laboratory to undergo multiple sample tests in order to prove it is a controlled drug or substance.
- Insufficient Possession: There are several defences that can be raised to challenge the elements of the offence of drug possession. This means challenging that you did not have knowledge of the illicit drug and/or did not have control over it. These defences include:
- No mental intent: A common defence available for drug charges is that you did not intend to interact with the illicit drugs. For example, if you were holding a backpack filled with an illicit drug for a friend or family member with no reason to suspect it contained the drugs.
- Innocent possession: Where the sole intent of possession is to turn the drug over to authorities or destroy it, the element of control is not fulfilled. For example, intending to dispose of an illicit drug that you found on your property.
- De minimis non curat lex: If you’ve been charged with possession of a very small amount of an illegal drug, this could be a defence. For example, if you have unmeasurable traces of an illicit drug in your possession.
- Licence: If you are licensed or authorized to possess an illicit substance, this could help challenge a drug possession charge.
- Violation of Constitutional Rights: The Canadian Charter of Rights and Freedoms sets out your rights before and after your arrest. If the police fail to abide by these rights, it could aid in your defence. With drug possession, this typically arises as an unlawful search and seizure of the substance, or an unlawful detention and/or arrest.
The Crown is required to prove that you not only committed the physical acts of drug possession, but that you intended to perform the actions involved. While the Crown must prove beyond a reasonable doubt that you committed the offence, you may bear some responsibility in raising certain defences at trial.
The availability and strength of any defence depends entirely on the specific facts of your case. Our lawyers have significant experience assessing the availability and strengths of potential defences in drug possession cases, as well as presenting any and all available defences to the Court at trial. Even if you believe you will be found guilty, it is important that you obtain a legal opinion about the defences that may be available to you.
How can I help defend drug possession charges in Kelowna?
If you have been charged with a drug possession offence in Kelowna, the following can help your lawyer build a strong defence:
- Provide your lawyer with a statement about what happened;
- Collect and maintain all documents and records about the event;
- Gather a list of witnesses that may support your version of events; and
- Log any relevant texts, emails, phone calls or photographic evidence.
What information is relevant will depend on the facts in your case. As soon as you are released on bail, you should start to gather any information that may be of use to your lawyer. If you are uncertain what information may be relevant, you should contact one of our lawyers immediately to create a plan of action for gathering information.
If you are truly proactive about the matter, consider doing the following:
- Secure proof of employment;
- Secure reference letters;
- Enroll in counselling (anger management/substance abuse/parenting);
- Secure a record of prescriptions; and
- Secure a record of any mental health conditions you suffer from.
These steps can be very helpful for building an effective defence (or convincing the Prosecutor to drop the charges altogether).
What can a lawyer do to help me defend against drug possession charges in Kelowna?
As we start preparing your defence by examining police actions and the evidence against you, there are certain defence strategies that can be used to aid your cause, including:
- Assembling documents, photographs, texts, etc. that contradict the allegation and support your defence;
- Gathering evidence from witnesses that support your version of events;
- Identifying mistakes in the actions of the police, such as Charter breaches;
- Uncovering administrative/systemic errors, such as “Jordan delay,” non-disclosure, lost or destroyed evidence, etc.; and
- Finding weaknesses or “holes” in the Crown’s case that may make it difficult or impossible for them to establish the elements of the offence.
An experienced and capable drug possession lawyer will be able to review your case to determine if there are any defences that can lead to your acquittal.
Below are a few notable cases dealing with various aspects of drug possession charges:
In R v Beaver,  SCR 531 the Supreme Court of Canada provided guidance with respect to that which must be proven by the Crown Prosecutor in order to establish possession of an illegal item. The Court stated that personal possession requires an individual to be aware of having physical custody of the narcotic, have control over it, and be aware of the nature of the item.
In R v Mulligan-Brum, 2011 BCCA 410 the British Columbia Court of Appeal considered the issue of whether the accused was in possession of contraband found in his vehicle. The Court found that where a sole occupant/driver is in close proximity to narcotics found in plain sight, the trier of fact may find that the accused had the requisite knowledge and control to be in possession of the narcotics.
In R v Pham,  OJ No 5127 the accused was known by authorities to be residing in a residence used in the drug trade. Upon raiding her apartment, police found cocaine in the common area, as well as in a female’s toiletry bag located in the bathroom. The court considered whether the accused had sufficient knowledge and control of and over the cocaine to constitute constructive or joint possession. The accused was found to be in possession of the cocaine due to the fact that the drugs were in plain view, the make-up bag was consistent with the accused’s toiletries, and she continued to maintain ownership and control over the apartment known to be used in the drug trade. The case was decided by the Ontario Court of Appeal, and was affirmed by the Supreme Court of Canada in R v Pham, 2006 SCC 26.
Drug possession cases are highly technical and fact-specific. Additionally, because of the lengthy police surveillance involved, drug possession cases are often very complex.
We have tried our best to provide a general outline of what you can expect if you find yourself in this situation, but this is just the tip of the iceberg.
To learn more about how we can help, please contact our team of Drug Possession Lawyers. We will conduct a thorough review of your situation and tailor a precise strategy that targets your successful defence.
Drug Possession FAQs
- What is drug possession?
- What is possession for the purposes of trafficking?
- What are the best defences to a drug charge?
- How can I get my drug charges dropped?