Toronto Criminal Lawyer

Drug offences in Canada are primarily governed by the Controlled Drugs and Substances Act (CDSA), a federal statute that classifies controlled substances into schedules and establishes offences for possession, trafficking, production, and importation. The penalties for drug offences vary dramatically depending on the type of substance, the quantity involved, and the nature of the alleged activity.

Since the legalization of cannabis in October 2018 under the Cannabis Act, the landscape of drug law in Canada has shifted. However, numerous drug offences remain, and charges under the CDSA continue to be among the most commonly prosecuted matters in Toronto's criminal courts.

The CDSA Schedule System

The Controlled Drugs and Substances Act organizes controlled substances into schedules, with the scheduling determining the applicable penalties. The key schedules are:

Schedule I includes the most serious controlled substances: opioids (heroin, fentanyl, morphine, oxycodone), cocaine, methamphetamine, and other substances considered to pose the highest risk. Offences involving Schedule I substances carry the most severe penalties.

Schedule II includes cannabis (to the extent it falls outside the Cannabis Act) and its derivatives.

Schedule III includes certain psychedelic substances such as psilocybin (magic mushrooms), LSD, and mescaline.

Schedule IV includes barbiturates, anabolic steroids, and benzodiazepines when not obtained by prescription.

The full schedules are set out in the CDSA itself and are regularly updated as new substances emerge.

Possession Offences

Simple possession under s.4 of the CDSA is the most basic drug offence. To secure a conviction, the Crown must prove:

• The accused had possession of the substance (actual, constructive, or joint possession)
• The accused knew the substance was a controlled substance
• The substance is in fact a controlled substance as defined by the schedules

Penalties for possession depend on the schedule:

• Schedule I (e.g., cocaine, heroin, fentanyl): Maximum seven years on indictment; maximum two years less a day and/or $5,000 fine on summary conviction for a first offence
• Schedule II (cannabis beyond legal amounts): Maximum five years less a day on indictment
• Schedule III (e.g., psilocybin, LSD): Maximum three years on indictment; maximum one year and/or $2,000 fine on summary conviction

Constructive possession is a concept that frequently arises in drug cases. Under s.4(3) of the Criminal Code (which applies to CDSA offences), a person has constructive possession when they know a substance is present, it is in a place over which they have some measure of control, and they consent to its presence there. This means drugs found in a shared apartment, vehicle, or other space may give rise to possession charges against someone who was not physically holding the substance.

Trafficking Offences

Trafficking is defined broadly under s.5 of the CDSA. It includes selling, giving, administering, transporting, sending, or delivering a controlled substance, as well as offering to do any of those things. Notably, no actual exchange of drugs needs to occur for a trafficking charge; an offer to sell is sufficient.

Penalties for trafficking are considerably more severe than for possession:

• Schedule I substances: Maximum life imprisonment
• Schedule II substances: Maximum 14 years on indictment
• Schedule III substances: Maximum ten years on indictment

The line between possession and trafficking can be contentious. The Crown may allege trafficking based on circumstantial evidence such as the quantity of drugs, the way they are packaged, the presence of scales, multiple cell phones, large amounts of cash, or individual baggies. The defence may argue that the drugs were for personal use.

Understanding the bail process is particularly important in trafficking cases, as the Crown frequently opposes release for serious drug charges.

Production Offences

Section 7 of the CDSA makes it an offence to produce, or to possess anything for the purpose of producing, a controlled substance. "Production" includes manufacturing, synthesizing, and cultivating.

Penalties for production depend on the substance and the scale of the operation:

• Schedule I substances: Maximum life imprisonment
• Schedule II (cannabis): Maximum 14 years on indictment

Production charges often arise in the context of drug labs (for synthetic drugs) or grow operations (for cannabis beyond the limits permitted by the Cannabis Act). These cases frequently involve complex search warrant issues and extensive forensic evidence.

Cannabis and the Cannabis Act

The legalization of recreational cannabis in 2018 under the Cannabis Act fundamentally changed the legal landscape. For adults aged 19 and over in Ontario, the following activities are legal:

• Possessing up to 30 grams of dried cannabis (or its equivalent) in public
• Purchasing from a licensed retailer (Ontario Cannabis Store or licensed private retailers)
• Growing up to four plants per household
• Sharing up to 30 grams with another adult

However, offences under the Cannabis Act and the CDSA continue to apply to:

• Possessing more than the legal limit
• Selling or distributing cannabis outside the licensed system
• Providing cannabis to a person under 18
• Possessing cannabis obtained through illicit means
• Taking cannabis across the Canadian border

Diversion and Drug Treatment Court

For individuals charged with simple possession, particularly first-time offenders, diversion may be available. Diversion programs allow the accused to avoid a criminal conviction by completing specified conditions, typically including drug education or counselling and community service. Upon successful completion, the Crown withdraws the charge.

Drug Treatment Court (DTC) is a specialized court program available in Toronto for individuals whose criminal offending is connected to substance addiction. The Toronto Drug Treatment Court operates out of Old City Hall and provides:

• Supervised treatment and support services
• Regular court appearances before a dedicated judge
• Drug testing
• A structured program that can lead to reduced charges or non-custodial sentences upon successful completion

Drug Treatment Court is not available for all drug offences. It is primarily designed for individuals who commit offences to support a drug addiction and who are motivated to address their substance use issues. Serious trafficking charges are generally not eligible.

For information about other resolution options, see our discussion of plea bargains and how they work in the Ontario court system.

Defences to Drug Charges

Drug cases frequently raise important legal issues, particularly regarding the manner in which evidence was obtained:

Unreasonable search and seizure (s.8 Charter). Drugs are physical evidence that must be seized by police. If the search that uncovered the drugs was unlawful, whether because the warrant was deficient, the warrantless search was not justified, or the search exceeded its authorized scope, the drugs may be excluded from evidence under s.24(2) of the Charter. This is the single most important defence issue in many drug cases.

Lack of knowledge. The Crown must prove the accused knew the substance was a controlled substance. If drugs were found in a location accessible to multiple people, the Crown must establish that the accused had knowledge of and control over the drugs.

Charter right to counsel. If police questioned the accused about the drugs without providing an opportunity to speak to a lawyer, any resulting statements may be excluded.

Challenging the substance identification. The Crown must prove through expert evidence (typically a Health Canada certificate of analysis) that the substance is in fact a controlled substance as listed in the schedules.

Your right to remain silent and your rights regarding police searches are particularly relevant in drug cases.

Speak with a Criminal Lawyer. Drug charges can carry severe penalties, particularly for trafficking and production offences. The legal issues in these cases, especially regarding search and seizure, are technically complex. If you are facing drug charges in Toronto, contact a criminal lawyer to discuss your case in a confidential consultation.