Possession of an illegal drug is a criminal offence under the Controlled Drugs and Substances Act. The act lists many types of illegal drugs, such as heroin, cocaine, fentanyl, oxycodone, morphine, etc. If you’re convicted of possession of an illegal drug, it means that you had the substance, you knew you had it, you knew what it was, and you had some control over it. For the full definition of possession of an illegal drug, see section 4 of the Controlled Drug and Substances Act.

Three ways you could have possessed the illegal drug:

You physically had the illegal drug — meaning you handled it and had control over it — you knew you had it, and you knew what it was.

As of January 31, 2023, the province of BC has allowed an exemption that some drug possession will no longer be prosecuted. Adults who have 2.5 grams or less of certain illicit substances for personal use will no longer be arrested, charged, or have their drugs seized. These drugs include cocaine (crack and powder), methamphetamine, MDMA (ecstasy), and opioids (including heroin, fentanyl, and morphine). Possessing any amount of illegal drug at schools, child-care facilities, and airports remains illegal. Possessing any amount of illegal drug as a youth (under 18 years of age) remains illegal.

You knew someone else physically had the illegal drug and you had some control over it.

You knew and consented to the illegal drug being in a place over which you had control for your own use or the use of another person, whether or not that place belonged to you or was occupied by you.

Being charged with a drug-related offence can have very serious consequences. If you’re convicted, you’ll likely get a criminal record, which can affect parental rights, limit the kinds of jobs you can get, and where you can travel.

Depending on the details of what happened and your criminal record, the Crown prosecutor (also called the Crown) can choose to charge you with either a summary offence or indictable offence. You could get a jail sentence for either type of offence.

If the Crown proceeds ​“summarily,” generally the maximum sentence a judge could give you for a first offence up to six months in jail, or a fine of up to $1,000, or both. If you’ve been convicted of this same offence before, the maximum jail term is up to one year, or up to a $2,000 fine, or both.

These are maximums: the judge could give you a shorter sentence or a sentence that doesn’t include jail at all (especially if you don’t have a criminal record).

If the Crown proceeds ​“by indictment,” the judge could give you a longer jail sentence of up to seven years, depending on the type of drug. Possession for the purposes of producing, trafficking, or importing illegal drugs carries much higher maximum sentences (including life) and mandatory minimum sentences. If you’re charged with any of those offences, be sure to talk to a lawyer. This resource does not apply to those offences.

The first time you’re in court, ask the Crown if they’re proceeding ​“summarily” or ​“by indictment.” The Crown should say whether they’re asking for a jail sentence. The Crown should also provide you with:

• particulars,
• details of the Crown’s case, and
• an Initial Sentencing Position, which tells you what the Crown would be seeking as a sentence if you were to plead guilty.

Do not plead guilty before speaking to a lawyer.

The Crown might say they’ll: 

• proceed ​“by indictment,”
• ask for a sentence that includes jail, or
• ask for a sentence that will have other serious consequences for you.

If the Crown says any of these things, immediately ask the judge to adjourn your case so you can get legal help.

If the Crown proceeds ​“by indictment” (or is asking for a jail sentence), you’ll usually have a better chance of getting legal aid — so be sure you understand how the Crown will proceed. Legal Aid BC may change its decision to not cover your case.

You can ask the court to appoint a government-funded lawyer to your case (a Rowbotham application) if:

• you can’t afford a lawyer, were denied legal aid and appealed your denial and were still denied,
• the Crown says that they’ll seek a jail sentence if you’re found guilty, or will seek any other type of sentence that will have serious consequences for you, and
• your case is too complicated for you to handle.

For more information on whether you’re eligible for a Rowbotham application, see the guide If You Can’t Get Legal Aid for Your Criminal Trial.

When you prepare your defence, think about what evidence you can use. Evidence includes witnesses, documents, videos, recordings, or your own personal testimony.

Make sure the Crown has given you all the evidence that they’ll use (called the disclosure), such as drug analysis reports or witness statements before the trial date. The Crown should also tell you who they’ll call as a witness. You can send them a letter or email asking for this information. (See a sample letter in Representing Yourself in a Criminal Trial.)

Prepare to provide truthful and relevant evidence to the court. For more information about the trial process, such as how to use witnesses, prepare questions, and decide whether to testify yourself, see Representing Yourself in a Criminal Trial.

Remember: you have the right to not testify. Talk to a lawyer before you decide whether you should testify.

To defend yourself against a charge of possession of an illegal drug, you may be able to use one (or more) of the following six points, if they’re true:

The Crown must prove that you knew about the drug (you knew it existed). But you may not have known about the drug. For example, suppose that when the police stopped you, they found the drug in your jacket pocket. If you’d just borrowed the jacket from a friend, you may not have known about the drug.

The Crown must also prove that you had control (or could have had control) over the drug — so lack of control is also a good defence. For example, perhaps you were riding in someone else’s car with two friends. They started smoking crack, but you refused. In a situation like this, you may argue that you had no control over the drug as long as you didn’t cooperate with them in any way related to the drug use.

You can argue that you made a mistake of fact, but your excuse must be reasonable and believable. For example, maybe your son gave you a jar for the spice rack, telling you that it was baking powder. When the substance was analyzed, it turned out to be cocaine — but you really believed that it was baking powder.

If the police found any drug supplies or equipment in your house, this defence probably won’t work. All the related circumstances have to support your argument if you want to claim that you didn’t know the substance was an illegal drug.

For example, if you say that you believed a white powdery substance in your possession was talcum powder, but the police found scales and crack pipes in your house, this defence will probably fail because the circumstances don’t support your argument.

In BC, you might be able to use this defence if you possessed only 2.5 grams or less of the drug; did not possess it at a school, child-care facility, or airport; and are 18 years of age or older. For example, police may have found less than 2.5 grams of methamphetamine (meth) on you. This defence only applies to crack and powder cocaine; meth; MDMA (ecstasy); and opioids (including heroin; fentanyl; and morphine). 

For this defence to work, the quantity of the drug must be less than 2.5 grams. You must also follow the rules of private businesses and properties (such as shopping malls, bars, and cafes) where illegal drug use and possession continues to be prohibited. It’s a good idea to speak to a lawyer before using this defence. 

You might be able to use this defence if the 2.5 grams defence does not apply to you, and if you possessed only a trace (a very tiny amount) of the drug. For example, maybe the police found only a trace of methamphetamine residue in a pipe.

For this defence to work, the quantity of the drug has to be very small. As well, there can be no other evidence that you possessed the drug that left the trace. It’s best to speak to a lawyer before using this defence.

If the police got evidence of the possession by violating your rights under the Charter of Rights and Freedoms, the judge might not let the Crown use that evidence. And if that happens, and there’s no other evidence proving your guilt, you can ask the judge to dismiss the charge against you.

For example, if you were a passenger in a car that was stopped for speeding, and the police decided to search you on only a suspicion that you had an illegal drug, you can say that was an unreasonable search.

Or, if the police found the drugs during a search without a warrant, you may be able to say they violated your rights. The police usually aren’t allowed to search your house, or your car, without a warrant.

Under the Charter, the police must do the following when they arrest you:

• tell you what they’ve arrested you for;
• tell you immediately that you can talk to a lawyer, and let you do so in private before questioning you or taking any samples;
• give you access to a phone to speak to a lawyer; and
• tell you that you can get free legal help. (Legal Aid BC has lawyers available 24 hours a day to talk over the phone for free to people in police custody. This service is called the Brydges Line.)

Don’t make any statements to the police or anyone else before speaking to a lawyer.

If the police didn’t do all the things listed above (or others that the Charter requires, such as get a search warrant before searching your house or belongings), you can say that they violated your rights. You would then say that the Crown shouldn’t be able to use any statements you made or other evidence that the police got by violating your rights.

However, the judge won’t automatically throw out the evidence in question. You must also show that accepting the evidence will reflect badly on how justice is carried out in Canadian courts.

If you plan to argue that your Charter rights were violated, talk to a lawyer before your trial. Using the Charter is complicated and usually requires legal research. You must tell the Crown in advance if you plan to use this type of an argument.

At the trial, before you present your defence, the Crown will present its case against you.

The Crown must prove beyond a reasonable doubt that you​’re guilty of all the elements that make up the crime of possession of an illegal drug. To do this, the Crown presents evidence to the court using witnesses, documents, videos, or recordings.

If the Crown tries to use evidence that they didn​’t tell you about in advance, you can object and ask the judge to dismiss the case or adjourn the trial.

You can cross-examine the Crown​’s witnesses, but you’ll normally do so only if you disagree with their information. You can ask relevant questions about what the witness saw or knows. You can also ask leading questions, which means making a statement and asking a witness if they agree with it. For example, you could ask ​“Isn’t it true that you couldn’t really see what happened?” For more details about how to cross-examine, see the guide Representing Yourself in a Criminal Trial.

For a judge to find you guilty of possession of an illegal drug, the Crown must prove the following:

The Crown must prove that you​’re the person who possessed the illegal drug. To do this, the Crown will call witnesses, including police officers, to give evidence. The witnesses will probably describe the person they saw in possession of the illegal drug. Then the Crown will ask the witnesses to say if that person is in the courtroom.

The evidence, either from the witnesses or from other sources (such as fingerprints, a photograph, a video, or audio recording), must show that you​’re the person who committed the crime.

The Crown must prove:

• that the crime happened in BC,
• the date of the crime, and
• the specific location where it happened.

These details are included on the Information. This is the official court form (listing the date, place, and type of offence) that the Crown will give you before the trial as a part of your particulars. The Crown must still prove these details at the trial.

The Crown will usually call a witness to give evidence about the date and place of the crime. This witness will likely be the investigating police officer.

The Crown must prove that you had an illegal drug in your possession. To show that you had the substance, the Crown will call witnesses, including the investigating police officer.

The Crown will usually argue that you had personal possession of the drug. For example, suppose the police officer found cocaine in your jacket pocket. The Crown would argue that you had personal possession because you had physical control over the drug.

Sometimes the Crown will argue that you had constructive possession of the drug. For example, maybe the police officer found cocaine in your bathroom (and you live alone). The Crown would argue that you had constructive possession because you knew about the drug and had some control over it — even though you weren’t carrying or holding it.

In some cases, the Crown will argue that you had joint possession of the drug. For example, suppose the police officer found cocaine in the bedroom that you share with your spouse. The Crown would argue that you had joint possession because you and your spouse both had control over the drug, and you knew about it.

If you​’re being charged with constructive or joint possession and the drug was found in your house or car, the Crown may use fingerprint evidence. Your fingerprints will be taken and examined to see whether they match the fingerprints found on the container that held the drug.

Keep in mind that anything you say (or write) can be used against you. For example, suppose the police stopped and searched you and they found the drugs on you. If you said to them, ​“Yes, that​’s my stuff,” the Crown may be able to use this statement at the trial to show proof of possession. 

Don’t make any statements before talking to a lawyer.

A substance isn​’t an illegal drug simply because you or the police say that it is. The Crown must prove that the substance is a drug by getting a government expert to analyze it. After testing the substance, the expert will prepare a certificate of analysis (a document that confirms what the substance is).

The Crown will use this certificate to prove that the substance was an illegal drug. The Crown must give you a copy of the certificate before the trial. They must give you reasonable notice (usually seven days) that they will use it at the trial.

When using the certificate as evidence, the Crown doesn​’t need to have the expert speak in court. If you want to cross-examine the expert, you must ask the judge to have this person come to court. It’s best to make this application before the trial starts and as soon as you receive the notice.

Don​’t plead guilty to the charge of possession of an illegal drug if the analysis hasn​’t been completed. You may be pleading guilty to a criminal offence that doesn​’t exist if it turns out that the substance isn’t an illegal drug. Don​’t plead guilty without talking to a lawyer.

Sometimes the Crown uses an affidavit to prove some of the points in their case. If the Crown plans to use an affidavit, they should give you a copy of this document before the trial. If you disagree with it, or if you think it should include other information, ask the Crown and the court to make the person who swore the affidavit come to your trial. Then you can question that person about the information that they swear is true.

After the Crown finishes presenting its case, it​’s your turn.

You now have your chance to use the points you​’ve prepared to use as your defence. You can use your gathered evidence, call witnesses, and, if you want to, give evidence as a witness yourself. You have the right to not testify. Ask a lawyer whether you should or not. See Representing Yourself in a Criminal Trial for more details.

After you finish presenting your defence, you close your case. Tell the judge why you think the Crown didn​’t prove that you​’re guilty beyond a reasonable doubt.

Mention if you think the Crown​’s case was weak or inconsistent in any area. This summary is called your submission. See Representing Yourself in a Criminal Trial for more details. 

Once you and the Crown have finished speaking, the judge will decide if you’re guilty or not. If the judge finds you guilty, you​’ll receive a sentence. The sentence depends on the details of the offence and your criminal record. It could be any of the following:

• an absolute discharge (your record won’t show a conviction)
• a conditional discharge (you’ll be regarded as not having been convicted if you meet conditions that the judge sets)
• probation (a ​“suspended sentence” including various conditions, for example, community service)
• a fine (up to $1,000 for a first offence)
• a conditional sentence (most often means house arrest for jail sentences of less than two years, which is like a jail term, but you serve it in the community)
• a jail term (up to one year for a summary offence, or six months for a first offence, or both; up to seven years for an indictable offence)

(Note that a judge usually only grants a discharge when an accused person has pleaded guilty and doesn​’t have a previous criminal record.)

You get a chance to speak to the judge before they decide your sentence. (This is called speaking to sentence.) The judge will give you a chance to explain why you committed the crime, why you won​’t do it again, and whether you need help for any problems you may have that were connected to the crime. Speaking to sentence is important because it gives you a chance to explain your situation to the judge. You can ask for a lower sentence than what the Crown is asking for.

Read Speaking to the Judge Before You​’re Sentenced before you go to court.

The maximum fine for a summary possession offence is $2,000. If the judge fines you, you can ask for time to pay. Tell the judge how much you can pay each month. If you think you will run out of the time set for paying your fine, you must come back to Court and get an extension. Do this as soon as possible.

You​’ll usually also have to pay a victim surcharge, which is 30 percent of your fine, or $100 for a summary offence, or $200 for an indictable offence. The judge can reduce the amount or drop the surcharge completely if you show that paying it would cause you undue hardship. For example, this could be because you:

• are unemployed,
• are homeless,
• don’t have assets, or
• have significant expenses for your dependant(s).

Being in jail isn​’t an undue hardship.