Joint Possession and How Much Counts as Trafficking in Canada

The short answer

Almost every drug case raises two questions: who possessed the drugs, and were they for personal use or for sale? Simply being near drugs is not enough to prove possession. There is also no fixed amount that automatically turns possession into trafficking, because the court looks at all the circumstances. The answers to these two questions can mean the difference between a withdrawal and a serious conviction. This guide explains how courts decide both issues.

Three kinds of possession

Under s. 4(3) of the Criminal Code, which also applies to drug charges, there are three kinds of possession:

• Personal possession: The drugs are on your body or in your hands.
• Constructive possession: You knowingly keep drugs somewhere else, such as in a car, a home or a storage unit, and you have control over them.
• Joint possession: Drugs held by one person, with the knowledge and consent of others, can make all of them possessors.

Drugs in a shared car or home

The prosecutor must prove that each person charged knew about the drugs and had some control over them. Being in the same car or home is not enough on its own.

For example, drugs found in a locked bedroom in a shared house point to the person whose room it is. Drugs in plain view on a kitchen table may point to several people. Drugs hidden inside a car door panel may point to the driver or owner, but not to a passenger who had just gotten in.

What courts look at for control

To decide whether someone had control, courts often look at who owned or rented the place, who had keys, whose belongings were nearby, whose fingerprints or DNA were found, and what each person said or did when police arrived. No single factor decides the issue, and the prosecutor must prove control for each person separately. Evidence that points to one person can also help show that another person had no control.

How much is considered trafficking?

There is no set weight that automatically counts as trafficking. Instead, courts look at the amount compared with normal personal use, packaging into small portions, scales and cutting agents, cash, messages about sales, and opinion evidence from police about personal use amounts.

A large amount can support an inference of trafficking on its own. A small amount can also support that inference when it is combined with packaging and sales messages.

Heavy users and bulk purchases

Some people who use drugs heavily buy larger amounts at once because it is cheaper or more convenient. Evidence of long-term heavy use, such as medical or treatment records, can help explain why someone had more than an average user. This evidence must be presented carefully, because it can also raise other concerns.

Why it matters

The difference between possession and trafficking is enormous. Trafficking in a Schedule I drug can carry up to life in prison, while simple possession of the same drug is often resolved through diversion. See simple drug possession and diversion.

Possible defences

• No knowledge: You did not know the drugs were there.
• No control: You had no ability to control the drugs, even if you knew about them.
• Personal use: The evidence shows personal use, not trafficking.
• Unlawful search: Police breached your rights when they found the drugs. See search and seizure in drug cases.

Giving or offering drugs can be trafficking even without payment. However, if the evidence of an intent to sell is weak, a trafficking charge can sometimes be reduced to possession.

What to do now

• Do not discuss the case with co-accused or other people who were present.
• Keep any proof of who lived in or used the place where the drugs were found, such as leases or bills.
• Do not give a statement to police before you receive legal advice.

Statements at the scene

When police find drugs in a shared car or home, they often ask everyone present who the drugs belong to. Any answer, even a short one, can be used to prove knowledge or control. Saying that the drugs belong to someone else can also cause problems for you and for that person. It is usually safer to stay silent and ask to speak to a lawyer.

What happens after you are charged

1. Release or bail: For trafficking in Schedule I or II drugs, there is a reverse onus at bail.
2. Disclosure: The prosecutor provides police notes, photographs of where the drugs were found, the lab certificate and any phone evidence.
3. Review of each person's role: Your lawyer reviews the evidence against you separately from the evidence against others.
4. Resolution or trial: Many joint possession cases end with charges withdrawn against some of the people charged.

Possible outcomes

Effects beyond the sentence

A trafficking conviction can affect immigration status, travel to the United States and employment for many years. It also brings a mandatory weapons prohibition. A simple possession conviction is less serious, and the record is later kept separate under s. 10.6 of the CDSA.

Common situations

• Drugs are found in a car with several people inside after a traffic stop.
• Police search a shared apartment or house under a warrant.
• Drugs are found in a common area, such as a kitchen or living room.
• A person is found holding a bag that contains drugs belonging to someone else.

How we can help

We can test the evidence of knowledge and control for each person, and challenge whether the circumstances really point to trafficking. Call (647) 223-1980 for a free consultation.

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