Are prosecutors withdrawing all simple possession charges?
Short answer: they are withdrawing more than ever, but not all. Each case is assessed separately by prosecutors using these guidelines. Simple possession of a controlled substance remains a criminal offence punishable by fines, probation, jail and a criminal record for life. A criminal record for possession of drugs usually results in denial of entry to the U.S.
Simple possession is a term used to refer to charges of possession of a controlled substance contrary to s. 4(1) of the Controlled Drugs and Substances Act.
Simple possession is a criminal offence, penalties for which can include a permanent criminal record, fines, probation, and jail.
On August 17, 2020, the Public Prosecution Service of Canada (the agency in charge of prosecuting drug charges in Canada), released a directive to their prosecutors regarding the prosecution of charges of simple possession of drugs.
This directive provides prosecutors with new guidelines to assist them in deciding how and when to prosecute someone charged with simple possession.
While the police are most often the ones to lay a criminal charge, the prosecutors are the ones who decide whether the case should proceed.
At the end of the day, this is an exercise in discretion on the part of the prosecutor. When deciding whether to spend the time and public resources needed to prosecute a simple possession charge, drug prosecutors are directed to think about:
Does the case fall within the most serious category of simple possession offences? Factors that increase the seriousness of a case include:
whether the offence was committed near children or near places frequented by children, or was otherwise committed in a place that created a safety risk for children;
whether the offence was committed in circumstances that created safety risk to the community or other individuals. Most frequently this involves possession where the perpetrator was impaired by drugs and had some nexus to a motor vehicle or where the perpetrator was also in possession of a knife or was otherwise using or possessing drugs in a manner that was dangerous to others.
possession of drugs in jail or otherwise in custody
whether there is some nexus between the drugs and more serious drug charges such as cultivation, production, trafficking, possession for the purpose of trafficking, or importation or some other Criminal Code offence?
other factors.
Are there alternatives to prosecution that can adequately address the concerns relating to the conduct such as addictions treatment or counselling or through a restorative justice response?
The release of this directive is a positive development. It moves the justice system towards a more evidence-based approach to dealing with community safety and addition issues. It is a change that recognizes the reality that substance use and addiction are extremely complex problems for which deterrence-based strategies have historically had little effect.
Because each case is different, it is important to seek advice from a lawyer on your case.
Perrin handles all types of drug charges and can help you with your case.