Drug Possession
Drug possession is the criminal offence under section 4 of the Controlled Drugs and Substances Act of having a controlled substance — listed in Schedules I through V — in one's possession. The offence is hybrid; maximum penalties depend on the schedule and the Crown election. After Bill C-5 came into force in November 2022, simple possession is increasingly being diverted out of the criminal system altogether, with Crown attorneys required to consider alternatives to charging and conviction.
Mass Tsang's drug lawyers handle possession cases across the GTA. For more, see our blog post on drug possession charges in Toronto.
What "possession" means
Section 4(3) of the CDSA and section 4(3) of the Criminal Code define possession broadly. The Crown must prove three elements: (1) knowledge of the substance; (2) control over it; and (3) consent or willingness to possess it. Possession can be personal (on the person), constructive (in a place under the accused's control), or joint (shared with others). Mere proximity is not enough — the accused must have knowledge and control.
Knowledge and wilful blindness
The knowledge element is satisfied if the accused was wilfully blind to the presence and nature of the substance — that is, they suspected something illegal and deliberately avoided confirming it. Wilful blindness is treated as equivalent to actual knowledge. Recklessness alone is not enough.
Bill C-5 and the diversion of simple possession
Bill C-5 (2022) introduced section 10.1 of the CDSA, which requires peace officers and Crown attorneys to consider whether warning the person, taking no action, or referring to a diversion or treatment program would be appropriate before charging simple possession. The intent is to treat simple possession as a health issue, not a criminal one. In practice, simple possession of small quantities — particularly without aggravating factors — is increasingly handled through diversion or withdrawal.
Charter issues
Drug possession cases are heavily Charter-driven. Common challenges include: section 8 challenges to the search that produced the drugs (warrant problems, vehicle searches, body searches); section 9 challenges to detention; section 10(b) right-to-counsel challenges; and Charter exclusion under section 24(2). A successful Charter motion often ends the case in an acquittal or withdrawal.
Sentencing
Sentences for simple possession range from absolute discharge to short jail terms, depending on the substance, quantity, and the offender's record. For non-citizens, even a small possession conviction can carry immigration consequences and should be addressed carefully.
Related glossary terms
