How is knowledge of the illegal drug proven?
Having an illegal drug in your pocket may not establish actual possession if a doubt can be raised on the issue of knowledge that the item existed. For example, one may wear an item of clothing (such as a jacket or pair of jeans) belonging to friend or relative without knowledge that drugs were left in the pockets of the clothing. This person cannot be said to have knowledge of the illegal drug.Without knowledge that the drug was there in the first place, one cannot properly be found guilty of the offence of possession.
Another scenario may exist where the person was aware of the item in their possession but they did not know the item was an illegal drug. For example, someone in possession of a bag of marijuana, mistakenly thinking it was a bag of oregano or another type of herb used for cooking cannot be said to have the requisite knowledge to establish possession of the illicit narcotic.
However, mistaking one type of illegal drug for another type of illegal drug is not a proper defense to possession of a narcotic. A person will not be acquitted of possession where he or she asserts that they believed they were in possession of cocaine when they were actually in possession of heroin.
What is the difference between possession and a possession for the purpose of trafficking charge?
If someone is charged with possession of a narcotic for the purpose of trafficking, the Crown must first prove that item found was an illegal drug and that he or she was in possession of that drug.
Additionally, the Crown must prove that the person possessed the drugs with the intention to sell (or give) it to others.
What are the sentences for possession and possession for the purpose of trafficking charges?
It is difficult to estimate the type of sentence a judge may impose for being in possession of a narcotic. Generally, the Court examines the circumstances of the offender in conjunction with the type of drug, the quantity of the drug and the reason the accused was in possession of the item. The Court generally treats drug addicts with more leniency than those persons alleged to possess or sell drugs for commercial gain. Each case is fact specific and requires a detailed analysis of all of the factors in order to determine an appropriate sentence range. Typically, a person found in possession of “hard drugs” such as cocaine and heroin are more likely to attract a jail sentence than those found in possession of “soft drugs” such as marijuana or hashish. Those found in possession of large quantities of jail could face multiple years in jail. However, it is possible for someone facing a minor drug charge to avoid a criminal record or have their charge withdrawn.