Read memo on the elements of Possession of a
Controlled Substance under s.4(1) of the CDSA
Possession - General Principles
Possession, particularly under s.4(3) of the CDSA, may be made out by proof of personal possession, constructive possession or joint possession. Knowledge and control are essential elements in both personal and constructive possession: R v Pannu, 2015 ONCA 677 at para 155
Possession is a conduct crime that begins when possession is gained and continues until it is relinquished. In this sense, possession can be seen as a continuing offence: Pannu, at para 123
Exemption for medical or scientific purposes: s. 55 and 56 of the CDSA
The federal Minister of Health can issue exemptions for medical and scientific purposes under s. 56 of the CDSA. Section 55 of the CDSA allows for the Governor in Council to make regulations for the medical, scientific and industrial use of illegal substances. In this manner, Parliament has attempted to balance the two competing interests of public safety and public health.
This scheme legitimizes the drug-related activities of many professionals, including doctors, by providing a controlled framework through which narcotics may be manufactured, stored, sold, distributed, prescribed and otherwise dealt with.
If a co-accused, charged with joint possession, believed that the other accused possessed drugs by virtue of a valid prescription and for personal use only, s/he could not be found guilty of possession under ss. 4 or 5(2) of the CDSA, despite satisfying the knowledge, consent, and control requirements of s.4(3)(b) of the Criminal Code: R v Pilgrim, 2017 ONCA 309 at paras 72-85
Constructive possession is established where an accused has the subject-matter in the actual possession or custody of another person, or in any place, whether belonging to or occupied by the accused or not, for the benefit of the accused or someone else: R v Pannu, 2015 ONCA 677 at para 156
To establish constructive possession the Crown must prove beyond a reasonable doubt that an accused:
knows the character of the object;
knowingly puts or keeps the object in a place; and
intends to have the object in the place for his or her use or benefit or the use or benefit of some other person.
The Crown may prove the essential elements of constructive possession by direct evidence, by circumstantial evidence or by a combination of direct and circumstantial evidence: Panu at paras 156-157
A finding of constructive possession is not inconsistent with a finding that an accused has no standing to advance a section 8 argument in relation to a search of the premises where drugs were found: R v Qiang Wu, 2017 ONCA 620 at paras 23-25
Examples from the Caselaw
Where the subject matter of which an accused is alleged to be in possession is a controlled substance of significant value, it may be open to a trier of fact to infer not only knowledge of the nature of the subject, but also knowledge of the substance itself. It is a reasonable inference that such a valuable quantity of drugs would not be entrusted to anyone who did not know the nature of the contents of the bag or other container: R v Pannu, 2015 ONCA 677 at para 157
Absent evidence of where in the house items are found, it is not reasonable to infer from the appellant’s residence in the house that he is in possession of those items: R v Maslowski, 2015 ONCA 261 at para 5
The fact that an accused is present in a room where drugs/money was found not in plain view is not enough, in itself, to connect him/her to these items: R v Mullings, 2016 ONCA 171 at paras 19-20