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The offence of drug possession involves the unlawful possession of controlled substances, such as illegal drugs or prescription medications for which the accused person does not have a legitimate prescription. The offence is primarily governed by the Controlled Drugs and Substances Act (CDSA) and related provisions in the Criminal Code. The specifics of drug possession laws can vary depending on the type and quantity of the controlled substance involved.

Under section 4(3) of the Criminal Code, “possession” refers to when a person has the illegal substance in their actual possession, has left the substance in the possession of another person, has stored the substance somewhere, or jointly possesses the substance with one or more persons.

The key elements of drug possession are knowledge and control:

Knowledge: The accused person must have knowledge of the presence of the controlled substance. Knowledge is an essential element of the offence of drug possession, and without it a conviction cannot be achieved. Knowledge can be established through direct evidence, circumstantial evidence, or inferences drawn from circumstances:

• Direct Evidence: Direct evidence of knowledge can include admissions made by the accused person, statements, or other direct proof that they knew they were in possession of drugs.
• Circumstantial Evidence: For example, if drugs are found in a location that the accused person controlled or had exclusive access to, the court may infer that they knew about the presence of the drugs.
• Willful Blindness: In some cases, even if there is no direct evidence of knowledge, the accused person may be found to have knowledge if they engaged in willful blindness. Willful blindness means they intentionally avoided learning the nature of the substance, which can be equated with knowledge.

Control: Control refers to the ability of the accused person to exercise possession over the controlled substance. Possession can be established through physical possession or constructive possession.

• Physical Possession: Physical possession occurs when the drugs are found directly on the accused person, such as in their pockets or belongings.
• Constructive Possession: Constructive possession occurs when the accused person has control over the location where the drugs are found, even if they are not physically on their person. For example, drugs found in a car owned by the accused person may constitute constructive possession if they had control over the vehicle.

Proving both knowledge and control is essential for a successful prosecution in drug possession cases. If the prosecution fails to establish either element, it can result in the acquittal of the accused person. Conversely, a strong defence strategy may involve challenging the prosecution's ability to prove knowledge and control beyond a reasonable doubt.

Penalties for drug possession can vary depending on the type and quantity of the controlled substance. Different substances are categorized into schedules under the Controlled Drugs and Substances Act, and the penalties may differ accordingly. Penalties may include fines, probation, conditional discharge, suspended sentence, and imprisonment. In certain cases, individuals may be diverted to drug treatment programs rather than facing criminal prosecution. Canada has harm-reduction programs and drug diversion initiatives in place in some jurisdictions to address addiction and drug-related issues as a public health concern.