Possession Offences

• Author: Nathan Gorham/Jeremy Streeter/Breana Vandebeek
• Pages: 147-164



Possession

Oences

6

I. Introduction ............................................. 

II. Possession in Drug Cases .................................. 

A. Possession Oences Under the CDSA .................. 

B. Possession Oences in the Cannabis Act ................ 

C. The Denition of Possession .......................... 

D. Personal Possession ................................. 

E. Constructive Possession .............................. 

F. Joint Possession .................................... 

III. The Overdose and Medical Emergency Exemption .............. 

© 2024 Emond Montgomery Publications. All Rights Reserved.

Prosecuting and Defending Drug Cases

I. Introduction

The police had been watching Kim Thi Pham’s apartment for two months. Through

surveillance, they determined that Ms Pham was dealing drugs out of the apartment.

On March 3, 2003, they saw Ms Pham leave. Two days later, when the police exe-

cuted a search warrant at the apartment, she still had not returned. Inside the apart-

ment, police ocers located Ms Pham’s roommate, Lieng Nguyen. In the bathroom,

in a black cloth purse beside the sink, police ocers located 9.8 grams of crack

cocaine. They also found $165 in a pink make-up bag beside the black cloth purse.1

The question at Ms Pham’s trial was: Who did the drugs belong to? Did they

belong to Ms Pham? Did they belong to the roommate, Mr Nguyen? Or did they

belong to someone else?

Fact scenarios such as this are common in prosecutions where an accused is

charged with possession of a controlled substance. Rarely are illegal drugs labelled

with someone’s name. Police investigations into the owner of discovered drugs vary

in sophistication, length, and completeness—from intense, months-long scrutiny of

an accused to very short investigations with no workup and very little follow-

through.

In many possession cases, the prosecution tries to build a circumstantial case,

pointing to evidence that tends to prove that it was the accused who was in posses-

sion of the drugs. The defence will attempt to show the gaps in the prosecution’s case

or the availability of other reasonable inferences and demonstrate that the drugs may

have belonged to someone else.

Ms Pham was convicted of possessing the cocaine for the purpose of tracking.

The trial judge found, and the Court of Appeal agreed, that Ms Pham was in “con-

structive possession” of the drugs, despite her absence from the apartment at the

time of the search. The Court also found that Ms Pham was “jointly in possession”

of the drugs along with her roommate, Mr Nguyen.

The purpose of this chapter is to review the law of possession as it applies to drug

cases and to provide practical advice to prosecutors and defence counsel who are

dealing with a possession case.

II. Possession in Drug Cases

A. Possession Oences Under the CDSA

Section 4(1) of the Controlled Drugs and Substances Act2 prohibits the possession of all

drugs listed in Schedule I, II, or III, except as authorized under its regulations.

1 R v Pham, 77 OR (3d) 401, [2005] OJ No 5127 (QL) (CA).

2 SC 1996, c 19 [CDSA].

© 2024 Emond Montgomery Publications. All Rights Reserved.