The lawyers at Stern Shapray have extensive experience representing clients charged with Possession or Obtaining of a Controlled Substance under the Controlled Drugs and Substances Act (CDSA) and reaching favourable outcomes for them. It is vital that one charged with this offence seeks out the legal advice of an experienced criminal lawyer in order to put forth the best possible defence(s) before the Court.

When assessing whether to hire a lawyer when charged, it is important to first be aware of the legal consequences in the event one is found guilty of Possession or Obtaining of a Controlled Substance under the CDSA. The penalties will depend on:

• whether one is found guilty of either possession or obtaining of a controlled substance,
• whether the controlled substance within the charge is included in Schedule I, II, III, or IV,
• whether the charge is prosecuted summarily or by indictment, and whether it is a first time or subsequent offence.

The tables below summarize the different penalties:

Possession of a Controlled Substance – s. 4(1) of the CDSA

		Schedule I	Schedule II	Schedule III
Summary	First time offence	Maximum fine $1000, or Maximum jail sentence of 6 months, or Both	Maximum fine $1000, or Maximum jail sentence of 6 months, or Both	Maximum fine $1000, or Maximum jail sentence of 6 months, or Both
	Subsequent offence	Maximum fine $2000, or Maximum jail sentence of 1 year, or Both	Maximum fine $2000, or Maximum jail sentence of 1 year, or Both	Maximum fine $2000, or Maximum jail sentence of 1 year, or Both
Indictable		Maximum 7 years	Maximum 5 years less a day	Maximum 3 years

Obtaining of a Controlled Substance – s. 4(2) of the CDSA

		Schedule I	Schedule II	Schedule III	Schedule IV
Summary	First offence	Maximum fine $1000, or Maximum jail sentence of 6 months, or Both	Maximum fine $1000, or Maximum jail sentence of 6 months, or Both	Maximum fine $1000, or Maximum jail sentence of 6 months, or Both	Maximum fine $1000, or Maximum jail sentence of 6 months, or Both
	Subsequent offence	Maximum fine $2000, or Maximum jail sentence of 1 year, or Both	Maximum fine $2000, or Maximum jail sentence of 1 year, or Both	Maximum fine $2000, or Maximum jail sentence of 1 year, or Both	Maximum fine $2000, or Maximum jail sentence of 1 year, or Both
Indictable		Maximum 7 years	Maximum 5 years less a day	Maximum 3 years	Maximum 18 months

That being said, the ultimate sentence received will depend on a number of factors, including the type of controlled substance found on the accused, the quantity of the substance, and any prior criminal record of the accused.

For an accused to be found guilty of Possession or Obtaining of a Controlled Substance, the Court must be satisfied beyond a reasonable doubt that each of the following requirements has been met (arranged by the specific subsection under which one gets charged):

1. Possession of a Controlled Substance – s. 4(1) of the CDSA
   
   1. The accused “possessed” a substance, which has 2 requirements:
      
      1. The accused had control of the substance, i.e., it was either on the accused’s body or on a place that the accused had control of (such as their vehicle or residence), and
      2. The accused knew that the substance was illegal;
   2. The substance is a controlled substance under Schedule I, II, or III of the CDSA; and
   3. The possession of the substance was not authorized under the CDSA regulations.
2. Obtaining of a Controlled Substance – s. 4(2)(a) of the CDSA
   
   1. The accused sought or obtained a substance,
   2. The substance is a controlled substance under Schedule I, II, III or IV of the CDSA,
   3. The accused sought or obtained the substance from a practitioner, and
   4. The accused did not disclose to the practitioner any details relating to their acquisition of every substance in the Schedules and of any authorization to obtain those substances, from any other practitioner within the past 30 days.
3. Obtaining of a Controlled Substance – s. 4(2)(b) of the CDSA
   
   1. The accused sought or obtained an authorization to obtain a substance,
   2. The substance is a controlled substance under Schedule I, II, III or IV of the CDSA,
   3. The accused sought or obtained the authorization from a practitioner,
   4. The accused did not disclose to the practitioner any details relating to their acquisition of every substance in the Schedules and of any authorization to obtain those substances, from any other practitioner within the past 30 days.

There are various ways in which charges of Possession or Obtaining of a Controlled Substance can be defended, ideally by raising a reasonable doubt toward one or more of the required elements of the charged subsection.

1. Possession of a Controlled Substance – s. 4(1) of the CDSA
   • identity of the accused,
   • whether or not the accused had control of the substance,
   • whether or not the accused knew the substance to be illegal,
   • whether or not the substance was a controlled substance included in the Schedules I to III, and
   • whether or not the possession was authorized under the regulations.
2. Obtaining of a Controlled Substance – s. 4(2)(a) of the CDSA
   • identity of the accused,
   • whether or not the accused sought or obtained a substance,
   • whether or not the substance was a controlled substance included in the Schedules I to IV,
   • whether the person the accused sought or obtained the substance from was a “practitioner”, and
   • whether the accused had disclosed to the practitioner all details relating to the substances’ acquisition or authorization to obtain them from other practitioners in the last 30 days.
3. Obtaining of a Controlled Substance – s. 4(2)(b) of the CDSA
   • identity of the accused,
   • whether or not the accused sought or obtained an authorization to obtain a substance,
   • whether or not the substance was a controlled substance included in the Schedules I to IV,
   • whether the person the accused sought or obtained the authorization from was a “practitioner”, and
   • whether the accused had disclosed to the practitioner all details relating to the substances’ acquisition or authorization to obtain them from other practitioners in the last 30 days.

Additionally, the accused can bring Charter challenges before the Court for exclusion of evidence, if the evidence obtained was a result of a violation of their constitutional rights during the investigation or arrest.

For reference, the offence of Possession/Obtaining of a Controlled Substance is outlined in the CDSA as follows:

Possession of substance

4 (1) Except as authorized under the regulations, no person shall possess a substance included in Schedule I, II or III.

Obtaining substance

(2) No person shall seek or obtain

(a) a substance included in Schedule I, II, III or IV, or

(b) an authorization to obtain a substance included in Schedule I, II, III or IV

from a practitioner, unless the person discloses to the practitioner particulars relating to the acquisition by the person of every substance in those Schedules, and of every authorization to obtain such substances, from any other practitioner within the preceding thirty days.

Punishment

(3) Every person who contravenes subsection (1) where the subject-matter of the offence is a substance included in Schedule I

(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding seven years; or

(b) is guilty of an offence punishable on summary conviction and liable

(i) for a first offence, to a fine not exceeding one thousand dollars or to imprisonment for a term not exceeding six months, or to both, and

(ii) for a subsequent offence, to a fine not exceeding two thousand dollars or to imprisonment for a term not exceeding one year, or to both.

Punishment

(4) Subject to subsection (5), every person who contravenes subsection (1) where the subject-matter of the offence is a substance included in Schedule II

(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years less a day; or

(b) is guilty of an offence punishable on summary conviction and liable

(i) for a first offence, to a fine not exceeding one thousand dollars or to imprisonment for a term not exceeding six months, or to both, and

(ii) for a subsequent offence, to a fine not exceeding two thousand dollars or to imprisonment for a term not exceeding one year, or to both.

Punishment

(6) Every person who contravenes subsection (1) where the subject-matter of the offence is a substance included in Schedule III

(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding three years; or

(b) is guilty of an offence punishable on summary conviction and liable

(i) for a first offence, to a fine not exceeding one thousand dollars or to imprisonment for a term not exceeding six months, or to both, and

(ii) for a subsequent offence, to a fine not exceeding two thousand dollars or to imprisonment for a term not exceeding one year, or to both.

Punishment

(7) Every person who contravenes subsection (2)

(a) is guilty of an indictable offence and liable

(i) to imprisonment for a term not exceeding seven years, where the subject-matter of the offence is a substance included in Schedule I,

(ii) to imprisonment for a term not exceeding five years less a day, where the subject-matter of the offence is a substance included in Schedule II,

(iii) to imprisonment for a term not exceeding three years, where the subject-matter of the offence is a substance included in Schedule III, or

(iv) to imprisonment for a term not exceeding eighteen months, where the subject-matter of the offence is a substance included in Schedule IV; or

(b) is guilty of an offence punishable on summary conviction and liable

(i) for a first offence, to a fine not exceeding one thousand dollars or to imprisonment for a term not exceeding six months, or to both, and

(ii) for a subsequent offence, to a fine not exceeding two thousand dollars or to imprisonment for a term not exceeding one year, or to both.

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For a complete list of the controlled drugs and substances under each Schedule, please refer to the following links:

• Schedule I
• Schedule II
• Schedule III
• Schedule IV

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