Evidentiary Issues in Drug Cases

By Patrick Ducharme, prepared for the Ontario Bar Association’s 2005 Institute of Continuing Legal Education, Toronto, Ontario

Introduction

My task today is to address evidentiary issues generally considered unique or at least important to drug cases. The best and most obvious place to begin is with the empowering statute, the Controlled Drugs and Substances Act (the “CDSA”) Proclaimed into force in May, 1997, the CDSA codifies all drug offences in Canada.

The Concept of Possession

Included in the CDSA are six Schedules identifying all the particular substances
and precursors declared illegal by this legislation. In section 2, the definitions section, possession is defined as meaning “possession” within the meaning of subsection 4(3) of the Criminal Code. 3 Consequently, we look to that provision for our definition:

Subsection 4(3) is as follows:

4 (3) Possession – For the purposes of this Act,
(a) a person has anything in “possession” when he has it in his personal possession or knowingly
(i) has it in the actual possession or custody of another person, or

(ii) has it in any place, whether or not that place belongs to or is occupied by him, for the use or benefit of himself or of another person; and
(b) where one of two or more persons, with the knowledge and consent of the rest, has anything in his custody or possession, it shall be deemed to be in the custody and possession of each and all of them.

“Possession” thus requires proof of two essential elements: knowledge and control. Evidence of knowledge and control may be either direct or  circumstantial.

Direct evidence is evidence perceived by the senses. A witness who testifies: “I saw him give the drug to her” gives direct evidence. Evidence is circumstantial if it proves a fact from which another may be inferred. A witness testifies: “The cocaine was in a container in a locked closet. He had the only key.” Triers of fact have the right to draw reasonable inferences from proven facts.

 

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Evidentiary Issues in Drug Cases, by Patrick J Ducharme