Criminal Defence · Drug Possession (CDSA)

Drug Possession Lawyer in Toronto

Reviewed by Fadi Matthew Kazandji, Founding Partner, Kazandji Law · Toronto criminal defence · Last reviewed: July 2026

A drug possession charge in Toronto can arise from a single, ordinary moment — a roadside stop, a pat-down outside a bar on King West, a search of a backpack in a shared car. What feels like a minor police interaction becomes a criminal file that follows you into job applications, border crossings, and immigration decisions. The good news is that a charge is only an allegation, and possession cases are far more defensible than most people assume.

At Kazandji Law, our criminal defence team represents people charged with simple possession and related drug offences across Toronto and the Greater Toronto Area. This page explains what you are actually facing under federal drug law in 2026, what the prosecution has to prove, the realistic range of outcomes, and the defences that most often lead to a charge being withdrawn, diverted, or resolved without a record. If you would rather talk it through now, call 647-588-3234 for a free, confidential consultation.

An important starting point: since 2020, federal prosecutors have been formally directed to divert simple possession away from the courts wherever possible, and in 2022 Parliament repealed the mandatory minimum jail sentences that once attached to many drug offences. The legal landscape has shifted decisively toward treating possession as a health issue first — but a charge still carries real consequences if it is not handled properly, which is exactly why early, strategic advice matters.

What is drug possession under Canadian law?

Drug offences in Canada are not found in the general Criminal Code. They live in a separate federal statute — the Controlled Drugs and Substances Act, almost always called the CDSA. Simple possession is created by section 4(1), which states plainly that "except as authorized under the regulations, no person shall possess a substance included in Schedule I, II or III."^[1]

That single sentence hides a great deal of complexity. "Possess" is a legal term of art — it does not simply mean the drugs were nearby. And the "Schedule" a substance falls into determines how serious the charge is and what penalties are available. Before anything else, an experienced lawyer identifies exactly which subsection you are charged under and which schedule the alleged substance belongs to, because those two facts frame the entire case.

The three legal forms of possession

The definition of possession comes from section 4(3) of the Criminal Code, which the CDSA borrows through its own interpretation section.^[2] There are three recognized forms, and the Crown must fit your case into at least one of them:

• Personal (actual) possession — the substance is on your body: in a pocket, a hand, a bag you are carrying. This is the most straightforward form for the Crown to prove, though knowledge is still required.
• Constructive possession — the substance is somewhere you do not physically hold it, but you knowingly have it in a place for your own use or benefit, or for someone else's. Drugs in a glovebox, a bedroom drawer, or a storage locker are classic constructive-possession scenarios.
• Joint possession — where two or more people, with each other's knowledge and consent, have a substance in their custody, it is treated as being in the possession of each of them. This is why drugs found in a shared apartment or vehicle can implicate several people at once — but only if knowledge and consent are proven for each.

What the Crown must prove: knowledge and control

In every form of possession, two elements are essential and the Crown must prove both beyond a reasonable doubt: knowledge and control. Mere proximity is never enough.

The knowledge requirement is anchored in one of the oldest possession cases in Canadian law, Beaver v. The Queen (1957), where the Supreme Court held there is "no legal possession without knowledge of the character of the forbidden substance." A person who genuinely does not know what a substance is — or does not know it is there at all — lacks the mental element the offence requires.^[3] The control element was reaffirmed by the Supreme Court in R. v. Morelli (2010), which confirmed that both knowledge and a measure of control over the item are indispensable to a finding of possession.^[4]

This is the beating heart of most possession defences. Drugs discovered in a shared car do not automatically belong to the driver. A substance in a common area of a home is not automatically possessed by everyone who lives there. A passenger sitting beside a bag is not, without more, in possession of its contents. The question is always whether the Crown can prove that this person knew about this substance and had control over it — and very often, it cannot.

How the drug schedules and penalties work

The maximum penalty for simple possession depends entirely on which schedule the substance falls into, and on whether the Crown proceeds by indictment (the more serious track) or by summary conviction (the less serious track). Possession under s. 4 is a hybrid offence, which means the Crown elects which way to go. The figures below are the maximum penalties set out in the CDSA — they are ceilings, not typical sentences, and as explained further down, a great many first offences never result in a conviction at all.^[1]

A few points that matter in practice:

• These maximums are rarely reached for simple possession. They exist for the worst cases. For a first-time possession charge involving a personal-use quantity, the realistic conversation is almost always about diversion, a discharge, or an outright withdrawal — not years in custody.
• There are no mandatory minimum jail sentences for simple possession. And since 2022, there are no mandatory minimums anywhere in the CDSA (see below).
• A subsequent summary conviction carries a higher ceiling — a fine up to $2,000 and/or up to one year — but this only applies where there is a relevant prior record.^[1]

Cannabis is no longer a CDSA possession offence

Older articles still describe cannabis as a Schedule II drug with a "30 grams" rule under the CDSA. That is out of date. Since the Cannabis Act came into force in October 2018, lawful adult possession of cannabis is regulated separately, not prosecuted under CDSA s. 4. In Ontario, adults 19 and older may possess up to 30 grams of dried cannabis (or its equivalent) in public.^[5] Cannabis offences still exist — for example, possession over the legal limit, possession by a minor, or possession of illicit (non-regulated) cannabis — but they are a distinct area. If your charge involves cannabis, see our marijuana drug offence page.

The 2022 repeal of mandatory minimums

In November 2022, Bill C-5 received Royal Assent and repealed all of the mandatory minimum penalties in the CDSA — including those that previously applied to trafficking, possession for the purpose of trafficking, importing and exporting, and production. The same legislation removed the restrictions that had blocked judges from imposing conditional sentences (served in the community, such as house arrest) for many drug offences.^[6] The practical effect is that judges now have far more discretion to craft a proportionate, individualized sentence, and community-based dispositions are available in cases where they were previously off the table. This is a significant, relatively recent change that reshaped drug sentencing across Canada.

Simple possession vs. possession for the purpose of trafficking

One of the most consequential decisions in any drug case is how the Crown characterizes it. There is a world of difference between simple possession under s. 4 and possession for the purpose of trafficking ("PPT") under s. 5(2) of the CDSA.^[7]

Simple possession means possessing the substance for your own use. PPT means possessing it with the intention of distributing it — selling, giving, transferring, or delivering it to someone else. The two charges start from the same act (possessing a drug) but the added element of purpose transforms the seriousness. PPT of a Schedule I or II substance is a straight indictable offence carrying a maximum of life imprisonment; for Schedule III or V substances the maximum is up to 10 years by indictment.^[7]

Police and prosecutors infer "purpose" from circumstantial indicators: the quantity involved, how the substance was packaged (for example, multiple small individually wrapped amounts), the presence of scales, cash, score sheets, or multiple phones, and the content of text messages. But an inference is not proof. A larger quantity can be consistent with heavy personal use. Packaging can be innocuous. Cash and phones are not contraband. A core part of the defence in these files is pushing back on the leap from possession to purpose, and where the evidence does not support trafficking, arguing the case down to simple possession — or defending it outright. If you are facing a distribution allegation, our drug trafficking lawyers handle these cases specifically, and related conduct is covered on our importing and exporting and production and cultivation pages.

Diversion and discharges: why many first offences leave no record

People charged with possession often assume a conviction is inevitable. For a first offence involving personal-use quantities, that is usually far from the truth. Canadian law now offers several off-ramps, and identifying the right one early is one of the most valuable things a defence lawyer does.

The federal prosecution directive on simple possession

In August 2020, the Director of Public Prosecutions issued a formal guideline (Deskbook 5.13) directing federal prosecutors that "resort to a criminal prosecution of the possession of a controlled substance contrary to s. 4(1) CDSA should generally be reserved for the most serious manifestations of the offence," and that "in all instances, alternatives to prosecution should be considered unless they are inadequate."^[8] The guideline expressly favours diversion where possession relates to a substance use disorder, where the person is in treatment or a drug treatment court program, and where a restorative-justice response is appropriate. This is national policy — not a favour — and it is a lever an experienced lawyer uses directly in discussions with the Crown.

Police-level diversion under the CDSA

Bill C-5 also added "evidence-based diversion measures" to the CDSA (sections 10.1 to 10.5). Before laying a simple possession charge, a police officer is now directed to consider whether it would be preferable to take no action, issue a warning, or — with the person's consent — refer them to a treatment or support program.^[9] The final decision still rests with the officer, and a failure to consider these options does not by itself invalidate a charge. Importantly, records of a warning or referral cannot be used later in court as evidence of a person's past conduct.^[9]

Drug treatment court and alternative measures

Toronto operates a Drug Treatment Court through the Ontario Court of Justice for eligible people whose offending is driven by addiction; successful completion can result in a non-custodial outcome or a withdrawal. Provincial alternative-measures / diversion programs may also resolve a first possession charge through conditions such as counselling, community service, or a donation, after which the charge is withdrawn — leaving no conviction.

Absolute and conditional discharges

Even where a matter proceeds to a finding of guilt, a court can grant a discharge under section 730 of the Criminal Code. An absolute discharge means no conviction is registered and there is no criminal record for the offence; a conditional discharge achieves the same result after a period of probation is completed. Discharges are a common and appropriate outcome for first-time possession, and preserving eligibility for one is often a central goal of the defence.^[10]

The consequences of a drug record beyond the sentence

Clients are often most anxious about jail, but for simple possession the more realistic and lasting harms usually lie elsewhere. A criminal record for a drug offence can affect:

• Employment and professional licensing. A record shows up on background and vulnerable-sector checks and can affect current jobs, future hiring, bonding, security clearances, and regulated professions (healthcare, finance, education, and others).
• Immigration status. This is critical for non-citizens. A drug conviction can render a permanent resident or foreign national inadmissible to Canada. Because possession for the purpose of trafficking carries a maximum of life imprisonment, it is treated as serious criminality under the Immigration and Refugee Protection Act, which can trigger loss of status with limited or no appeal. If you are not a Canadian citizen, tell your lawyer immediately — it can change the entire defence strategy, because avoiding a conviction (through diversion or a discharge) may matter far more than the sentence itself.
• Travel, especially to the United States. U.S. border officers treat controlled-substance offences seriously, and even an admission can create difficulties. A record can complicate or bar entry to certain countries.
• Housing, education, and volunteering. Landlords, schools, and volunteer organizations increasingly run record checks.
• Family and reputation. The stress on relationships and the stigma of a drug record are real, even when the legal exposure is modest.

These downstream effects are exactly why it is worth fighting a charge that looks "minor" on paper. The gap between a withdrawal or discharge and a registered conviction can shape a person's life for years.

The drug possession court process in Toronto, step by step

Understanding the sequence of a possession case helps you see where a defence can be built. Most files move through the same stages in the Ontario Court of Justice.

1. The search and arrest

Nearly every possession case begins with a search — of a person, a vehicle, a home, or a phone. How that search was conducted is frequently the whole case, because evidence obtained through an unlawful search can be excluded. At the point of arrest or detention, your right to counsel under section 10(b) of the Charter is engaged: you must be advised of your right to a lawyer and given a genuine opportunity to speak with one.

2. Release or bail

For a straightforward first possession charge, most people are released by police on an appearance notice or an undertaking, sometimes with conditions. More serious files — a distribution allegation, a prior record, or related charges — may require a bail hearing, where arriving with a workable release plan and sureties can be decisive.

3. Disclosure

Your lawyer obtains disclosure — the Crown's evidence. The Crown's constitutional duty to disclose all relevant material flows from the Supreme Court's decision in R. v. Stinchcombe (1991).^[11] In a possession case, disclosure typically includes the officers' notes and grounds for the search, the property and continuity records, any statements, phone-extraction reports, and the certificate of analysis — the laboratory certificate identifying the substance under s. 51 of the CDSA. A meticulous review of this material is where most winning defences begin.^[12]

4. Crown pre-trial and resolution discussions

Most possession cases involve a Crown pre-trial, where your lawyer tests the strength of the case and explores whether it can be diverted, withdrawn, or resolved without a conviction. Given the federal directive favouring alternatives to prosecution, this stage is often where a well-prepared possession charge is resolved on favourable terms — long before any trial.

5. Charter applications and trial

If the case does not resolve and there are viable issues, it proceeds to trial — frequently built around a Charter application to exclude the drugs. If the search or detention is found unconstitutional and the evidence is excluded, the Crown is usually left with no case, and the charge is dismissed. From first appearance to conclusion, a contested possession case commonly takes several months.

How Kazandji Law defends drug possession charges

Possession cases are won on detail, and the right strategy depends entirely on the disclosure in your specific file. The issues our lawyers most often raise include:

• Unlawful search and seizure (Charter s. 8). Did police have the legal authority for the search — a valid warrant, a lawful search incident to arrest, or genuine exigent circumstances? Section 8 of the Charter protects against unreasonable search and seizure, and the Supreme Court has recognized a heightened expectation of privacy in the home and in the contents of a cell phone. A search that exceeds its lawful bounds can render everything that followed inadmissible.
• Arbitrary detention and the traffic-stop context (Charter s. 9). Many drug cases begin with a vehicle stop. If the detention was arbitrary or the stop was used as a pretext to search without grounds, the evidence that flowed from it is vulnerable.
• Denial of the right to counsel (Charter s. 10(b)). Were you promptly advised of your right to a lawyer and given a real, private opportunity to exercise it before questioning?
• Exclusion of evidence (Charter s. 24(2)). Where a Charter breach is established, the court applies the three-part test from R. v. Grant (2009): the seriousness of the state's Charter-infringing conduct, the impact of the breach on the accused's protected interests, and society's interest in a trial on the merits. In drug cases, a serious breach frequently leads a court to exclude the drugs — which typically ends the prosecution.^[13]
• No knowledge or no control. Where the substance was found in a shared or public space, we test whether the Crown can actually prove that you knew about it and controlled it, as Beaver and Morelli require.
• Challenging the substance analysis. The Crown must prove the substance actually was a controlled drug. We scrutinize the certificate of analysis, continuity of the exhibit, and the reliability of the testing before accepting the identification.
• Reducing "purpose" to simple possession. Where the Crown alleges PPT, we challenge whether the quantity and surrounding indicators truly prove an intention to distribute, rather than personal use.

These are issues that may be available — not guarantees. No responsible lawyer promises a result before reviewing the disclosure. What we promise is a rigorous, honest assessment and a defence built around the specific facts and evidence in your case.

Common myths about drug possession charges

"They found drugs near me, so I'm guilty." Not so. Proximity is not possession. The Crown must prove knowledge and control, and in shared spaces that is often the weakest part of its case.

"A first possession charge means a criminal record." Frequently untrue. Federal policy favours diversion for simple possession, and absolute or conditional discharges leave no conviction. Many first offences are resolved with no record at all.

"Possession still carries a mandatory minimum jail sentence." No. Simple possession never carried a mandatory minimum, and since Bill C-5 in 2022 there are no mandatory minimums anywhere in the CDSA.

"If I just explain, they'll drop it." Explaining rarely helps and often supplies the very knowledge-and-control evidence the Crown was missing. You have the right to silence — use it, and speak to a lawyer first.

"Cannabis is still a possession charge under the CDSA." Not for lawful adult amounts. Cannabis is regulated under the Cannabis Act; in Ontario adults 19+ may possess up to 30 grams in public.

"There's no point fighting a small case." The "small" case is often the most winnable — and the stakes (record, immigration, travel) are anything but small.

What to do if you have been charged with possession

1. Say as little as possible. Be polite, provide identification if required, but exercise your right to remain silent. Do not try to talk your way out of it.
2. Exercise your right to counsel. Ask to speak with a lawyer as soon as you are detained or arrested.
3. Write down everything you remember while it is fresh — where you were, what was said, how the search unfolded, who was present, and the timeline.
4. Preserve helpful evidence. Keep all paperwork from the arrest and release, and save relevant messages or receipts. Do not delete anything.
5. Do not post about the case online and do not discuss the details in writing with friends.
6. If you are not a Canadian citizen, tell your lawyer immediately — it can change the entire strategy.

Why choose Kazandji Law for your drug possession defence

Kazandji Law is a Toronto criminal and family law firm built on a proactive, no-nonsense approach with a genuine personal touch. Possession cases reward preparation — the close reading of search grounds and disclosure, a working command of Charter litigation, and the judgment to know when to push a s. 8 application and when to steer a file into diversion or a discharge. Our team brings that preparation to every drug file, whether it is a first-time personal-possession charge or a matter the Crown is trying to escalate into trafficking.

We appear in the Ontario Court of Justice and Superior Court locations across the Greater Toronto Area — including the criminal court at 10 Armoury Street in downtown Toronto — and we defend possession charges wherever they arise: downtown Toronto, North York, Scarborough, Etobicoke, Thornhill, Vaughan, Markham, Oakville, and beyond. Our Toronto office is located at 180 John St., Unit 320. You can meet our team, review our case results, and explore our full range of drug offence defence services — from trafficking and prescription drug crimes to paraphernalia offences.

Frequently asked questions

Is drug possession a criminal offence in Canada?

Yes. Simple possession of a substance listed in Schedule I, II, or III of the Controlled Drugs and Substances Act is a criminal offence under section 4(1). However, a charge does not always lead to a conviction — federal policy favours diverting simple possession out of the courts, and many first offences are resolved without a criminal record.

Can I be convicted if the drugs were not on my body?

Possibly, but the Crown must prove more than that the drugs were nearby. It has to establish that you knew about the substance and had control over it — the elements of constructive or joint possession. Drugs found in a shared car, home, or bag do not automatically prove possession by any one person, which is why these cases are often defensible.

What is the maximum penalty for drug possession?

It depends on the schedule and how the Crown proceeds. By indictment, the maximum is up to 7 years for Schedule I, up to 5 years less a day for Schedule II, and up to 3 years for Schedule III. On summary conviction, a first offence carries a maximum $1,000 fine and/or up to 6 months. These are ceilings for the most serious cases; simple first-offence possession is rarely sentenced anywhere near them.

Are there mandatory minimum sentences for drug possession?

No. Simple possession never carried a mandatory minimum, and Bill C-5 (2022) repealed all mandatory minimum penalties in the CDSA, including those that formerly applied to trafficking and production. Judges now have full discretion to impose a proportionate sentence, including community-based options.

Will a first drug possession charge give me a criminal record?

Not necessarily. Diversion programs and drug treatment court can result in a withdrawal, and a court can grant an absolute or conditional discharge under section 730 of the Criminal Code — meaning no conviction is registered. Preserving these outcomes is often the central goal of the defence.

What is the difference between possession and possession for the purpose of trafficking?

Simple possession means possessing a drug for your own use. Possession for the purpose of trafficking (s. 5(2)) means possessing it with the intention of distributing it, and carries far higher maximum penalties — up to life imprisonment for Schedule I or II substances. Purpose is usually inferred from quantity, packaging, and items like scales, cash, and phones, but those inferences can be challenged.

Can the police search my phone in a drug case?

Not automatically. The contents of a cell phone attract a high expectation of privacy, and a search generally requires a warrant or must fall within a recognized exception. If your phone was searched improperly, the evidence — and any case built on it — may be challenged under section 8 of the Charter.

What happens if the search that found the drugs was illegal?

If a court finds that the search breached section 8 of the Charter, it can exclude the drugs under section 24(2) using the test from R. v. Grant. Because the drugs are usually the heart of the Crown's case, exclusion typically results in the charge being dismissed.

Is cannabis possession still a crime?

Lawful adult possession is not. Since the Cannabis Act came into force in 2018, adults 19 and older in Ontario may possess up to 30 grams of dried cannabis in public. Offences still exist for possessing over the legal limit, possession by minors, and illicit (unregulated) cannabis, but ordinary adult possession is no longer a CDSA offence.

How does a drug conviction affect immigration or travel?

It can have serious consequences. A drug conviction can make a permanent resident or foreign national inadmissible to Canada, and possession for the purpose of trafficking is treated as serious criminality under immigration law. A record can also complicate entry to the United States and other countries. If you are not a citizen, raise this with your lawyer at the very start.

Do I really need a lawyer for a simple possession charge?

Yes — arguably more than people realize. Because the best outcomes (diversion, withdrawal, a discharge) usually have to be secured before a conviction is entered, and because Charter defences turn on technical detail, the value of an experienced lawyer is greatest early. A first possession charge still puts your record, your immigration status, and your travel at risk.

How much does a drug possession lawyer cost?

Fees depend on the complexity of the case and whether it resolves early through diversion or proceeds to a contested trial. Kazandji Law offers a free initial consultation and will give you a clear picture of the process and the likely cost before you decide anything.

Sources & legal references

1. Controlled Drugs and Substances Act (S.C. 1996, c. 19), s. 4 (possession offence and punishment): laws-lois.justice.gc.ca/eng/acts/c-38.8/section-4.html.
2. Criminal Code of Canada (R.S.C. 1985, c. C-46), s. 4(3) (definition of possession), applied to the CDSA via CDSA s. 2(1): laws-lois.justice.gc.ca/eng/acts/c-46.
3. Beaver v. The Queen, 1957 CanLII 14 (SCC) (knowledge of the character of the substance is essential to possession): canlii.org/en/ca/scc/doc/1957/1957canlii14.
4. R. v. Morelli, 2010 SCC 8 (knowledge and control as elements of possession): canlii.org/en/ca/scc/doc/2010/2010scc8.
5. Government of Ontario, "Cannabis laws" and Cannabis Act (S.C. 2018, c. 16); Ontario Cannabis Control Act, 2017 (adults 19+, up to 30 g in public): ontario.ca/page/cannabis-laws; justice.gc.ca/eng/cj-jp/cannabis.
6. Bill C-5 (An Act to amend the Criminal Code and the CDSA), S.C. 2022, c. 15 — Royal Assent Nov. 17, 2022 (repeal of CDSA mandatory minimums; expanded conditional sentences): parl.ca/DocumentViewer/en/44-1/bill/C-5/royal-assent; canada.ca/en/department-justice.
7. Controlled Drugs and Substances Act, s. 5 (trafficking and possession for the purpose of trafficking; Schedule I/II liable to imprisonment for life): laws-lois.justice.gc.ca/eng/acts/c-38.8/section-5.html.
8. Public Prosecution Service of Canada Deskbook, Guideline 5.13, "Prosecution of Possession of Controlled Substances Contrary to s. 4(1) of the CDSA" (Aug. 17, 2020): ppsc-sppc.gc.ca/eng/pub/fpsd-sfpg/fps-sfp/tpd/p5/ch13.html.
9. Controlled Drugs and Substances Act, ss. 10.1–10.5 (evidence-based diversion measures — principles, warnings, referrals), added by Bill C-5: laws-lois.justice.gc.ca/eng/acts/c-38.8.
10. Criminal Code of Canada, s. 730 (absolute and conditional discharges): laws-lois.justice.gc.ca/eng/acts/c-46/section-730.html.
11. R. v. Stinchcombe, 1991 CanLII 45 (SCC) (Crown's duty of disclosure): canlii.org/en/ca/scc/doc/1991/1991canlii45.
12. Controlled Drugs and Substances Act, s. 51 (certificate of analysis as evidence): laws-lois.justice.gc.ca/eng/acts/c-38.8/section-51.html.
13. R. v. Grant, 2009 SCC 32 (three-part test for exclusion of evidence under Charter s. 24(2)): canlii.org/en/ca/scc/doc/2009/2009scc32.

Disclaimer: This page provides general legal information about Canadian and Ontario drug possession law and is not legal advice. Laws, penalties, and prosecutorial policies change, and how they apply depends on the specific facts of your case. For advice about your situation, contact a lawyer. Contacting Kazandji Law does not create a solicitor-client relationship until a retainer is signed.