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7.5 The Controlled Drugs

and Substances Act

A drug is defined as “any substance that by its chemical nature alters structure or function in a living organism.”

Controlled substances are itemized on four basic lists, known as schedules:

• Schedule I — the most dangerous drugs, including narcotics such as heroin and cocaine

• Schedule II — cannabis (marijuana) and its derivatives

• Schedule III — many of the more dangerous drugs previously found in the Food and Drugs Act, such as lysergic acid diethylamide (LSD) and Ecstasy

• Schedule IV— drugs that must be controlled but that have therapeutic use, such as barbiturates

  • Schedules V and VI deal with other medicinal drugs.
  • Schedules VII and VIII deal with cannabis resin

Drug Trafficking

  • To traffic is to “sell, administer, give, transfer, transport, send, or deliver the substance.” or Includes possessing for the purpose trafficking

Possession

  • Trafficking includes substances found in Schedules I, II, III, or IV, or any substance believed to be that substance

Police Rights of Search and Seizure under the Act

  • Trafficking has a very broad definition. Prosecutors can charge individuals with trafficking even when a simple possession charge might seem more appropriate.
  • A person is defined as “having possession” even when he or she does not technically own the drug.

For example, if five people are sharing a marijuana joint, they could all be convicted of possession. The owner of the house can be charged also since allowing its use in his or her home implies consent.

  • The Controlled Drugs and Substances Act states that a search warrant can be issued by a justice if police believe that evidence of a drug offence can be located.

  • An officer may act without a warrant if the situation is urgent and it is impractical to obtain one.
  • One can be charged with aiding in the selling of the above substances
  • As long as the drug can be identified, a charge can be laid.

Canadians are allowed to possess drugs found in Schedule IV for

therapeutic use.

  • Crown must prove that the person possessed the controlled drug for the purpose of trafficking. Drug paraphernalia (equipment such as scales or pipes) or large amounts of cash may be used by the Crown as evidence of trafficking.

Mens rea is a necessary element of the offence

  • Officers can search anyone if there are reasonable grounds to believe that the person possesses a controlled substance

1. Describe two situations in which someone may be charged with

possession while not physically possessing the drug.

  • Police have gone undercover to catch drug traffickers. Asking someone to traffic drugs when they have never engaged in such an act could be considered random virtue testing.

2. Is intent necessary for possession? Explain.

  • In public, police are required to establish reasonable grounds before they proceed with a search.

This includes police surveillance, visual or physical signs of drug

consumption, or a reliable informant.

1. Examine the wording of what constitutes the offence of trafficking. Is possession an included element of the offence?

2. What are the elements that are necessary in order to be found guilty of aiding and abetting an offence (see also Chapter 4)?

1. What two points must the Crown prove to obtain a conviction for trafficking?

2. Who has the onus in a trial to prove that an accused person possessed a controlled drug for the purpose of trafficking? What evidence can prove this?

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