Drug charges in Ontario are graded before they are defended. Whether the Crown proceeds on possession or on possession for the purpose of trafficking changes the maximum from seven years to life, and for anybody who is not a citizen that is the whole case.
About this work
Possession is section 4 and the maximum depends on the schedule. For a Schedule I substance, which is where cocaine and the opioids sit, possession carries seven years on indictment, or on summary conviction a fine of up to a thousand dollars or six months for a first offence and up to two thousand dollars or a year for a subsequent one. For Schedule II the indictable maximum is five years less a day.
Trafficking and possession for the purpose are both section 5, and section 5(3)(a) makes either one an indictable offence liable to imprisonment for life where the substance is in Schedule I or II. Schedule III or V carries up to ten years on indictment or eighteen months summarily, and Schedule IV up to three years or one year.
Trafficking is also wider than selling. It covers giving, transporting, delivering and offering to do any of those, and it extends to a substance held out to be a controlled substance even when it is not one. Nobody has to have been paid.
Cannabis sits under its own Act rather than under this one, and the offences and thresholds there are different. A charge that reads Cannabis Act is a different analysis from the start.
What changed
Every mandatory minimum in the Controlled Drugs and Substances Act was removed by 2022, c. 15. The schedules, the offences and the maximum penalties are unchanged. What went was the floor beneath the sentence, and a good deal of what is still published on this subject describes those floors as though they still applied.
Not for trafficking, not for possession for the purpose, not for production, and not for import or export. The lists of aggravating factors that used to trigger a one year or two year floor no longer do so. A sentence is now arrived at on ordinary principles, which means the circumstances of the offence and of the offender actually matter again.
Section 10.2(1) requires a peace officer, instead of laying an information for possession under subsection 4(1), to consider whether a warning or a referral would be preferable. Section 10.1 sets out the principles behind it, including that problematic substance use should be addressed primarily as a health and social issue.
Subsection 10.2(2) provides that an officer's failure to consider those options does not invalidate any subsequent charge. So the duty is real but it is not a defence, and a charge laid without any evident consideration of alternatives does not fall away because of it.
The maximum penalty is what immigration law reads, and the maximums did not move. Trafficking and possession for the purpose of trafficking in a Schedule I or II substance still carry life, which is serious criminality under section 36(1) of the Immigration and Refugee Protection Act and reaches permanent residents.
Side by side
6 points of difference
This is the decision the whole file turns on. The conduct can look identical at the roadside and the two charges are not remotely the same thing, in court or afterwards.
The route
4 stages, each with its own clock
The stages below are where a drug file is actually decided, and the provision is named beside each one that is governed by statute. The order matters: what happens at the search determines what is left to argue afterwards.
Whether the stop, the detention and the search were lawful, and whether the warrant, if there was one, was properly obtained. Section 8 of the Charter protects against unreasonable search and seizure, and where a search breaches it the remedy sought is exclusion of what was found. Without the substance there is usually no case.
An officer is required to consider a warning, a referral to a programme, or another alternative before laying an information for possession. Whether that happened, and what was recorded about it, is worth knowing early even though it is not a defence.
Possession under section 4, or possession for the purpose under section 5. The Crown argues purpose from the surrounding circumstances rather than from any transaction, so the strength of that inference is examined on the disclosure. For a non-citizen this is the most consequential decision in the file.
Since the 2022 repeal there is no mandatory minimum for any of these offences. Conditional sentences and non-custodial dispositions are available where the circumstances support them, which was not the position while the minimums stood.
Before the meeting
6 things to bring
Bring what you have and say what is missing. A meeting with the papers in front of it settles in one sitting what two telephone calls will not.
Our approach
The same four steps on every matter, whether it is a refusal at the Federal Court or a ticket at the Provincial Offences court.
Book a consultationWe take the full history and read the documents before offering an opinion. Most bad advice comes from acting on half the facts.
You get a candid read on strength, timeline and cost, including when the honest answer is that you do not need to hire anyone.
We prepare the application, the defence or the appeal properly the first time, because fixing a weak record later is harder and dearer.
You hear from us at each stage, and you hear what a wait actually means rather than a date chosen to sound better.
Reported decisions
7 allowed of 22 reported since 2023
Public judgments of the Federal Court with Kapil Rathod as counsel of record, each checkable by citation on the court's own site. The rest were dismissed and are listed with these ones.
Super visa, parents and grandparents
2026 FC 99Docket IMM-23381-24
Application allowedWork permit, Temporary Foreign Worker Program
2026 FC 105Docket IMM-18690-24
Application allowedTemporary resident visa
2026 FC 805Docket IMM-20802-24
Application allowedPermanent residence, Express Entry
2025 FC 275Docket IMM-1797-24
Application allowedWork permit, job offer
2024 FC 1928Docket IMM-6445-23
Application allowedStudy permit
2024 FC 1487Docket IMM-3700-23
Application allowedTemporary resident visa
2024 FC 1453Docket IMM-10337-23
Application allowedDrug charges in Ontario turn on the lawfulness of the search and on how the Crown grades the charge, and both are settled from the disclosure rather than from anybody's account of the night.
The mandatory minimums are gone; the maximums, and what they mean for status, are not.
Common questions
8 answered here
Written to be read once and acted on rather than to be rung about. Each answer is complete where the law allows a complete answer.
At the search, far more often than at the trial. The questions are whether there were grounds for the stop or the detention, whether the search that followed was authorised, and if there was a warrant whether the information used to obtain it stands up. Section 8 of the Charter protects against unreasonable search and seizure, and where a breach is established the argument is that the evidence should be excluded.
That is why the disclosure request is the first real step and why nobody can sensibly predict an outcome before reading it. The officer's notes, the grounds recorded at the time, the warrant and its supporting material, the continuity of the exhibit and the analyst's certificate are the case. What the accused says happened is rarely where it turns.
The second front is the inference of purpose. Quantity, packaging, the presence of scales or cash, and messages on a phone are the usual building blocks, and each of them is arguable. A quantity consistent with personal use, an innocent explanation for cash, or a phone whose seizure or search was itself unlawful can move a section 5 charge back to section 4.
It depends almost entirely on which section, and the gap is as wide as it gets anywhere in criminal law. Possession of a Schedule I substance carries seven years. That is under the ten year threshold in section 36(1) of the Immigration and Refugee Protection Act, so a conviction engages section 36(2), ordinary criminality, which reaches foreign nationals and cannot be used to remove a permanent resident.
Trafficking or possession for the purpose in Schedule I or II carries life. That is serious criminality under section 36(1), and section 36(1) reaches permanent residents as well as foreign nationals.
There is a second difference that outlasts the sentence. Deemed rehabilitation, which clears an old single conviction with no application at all, requires under section 18(2)(a)(i) of the Regulations that the Canadian maximum be less than ten years. Seven years qualifies. A life maximum never will, so a trafficking conviction is a permanent bar to that route and can only be dealt with by applying.
And for a permanent resident, a sentence of at least six months removes the appeal to the Immigration Appeal Division under section 64(2). That number is set at sentencing, in the criminal court, which is why the immigration position has to be on the table while the Crown is still deciding what it will accept.
Often less than people expect, and the reason is statutory. Section 10.1 sets out principles for this part of the Act: that problematic substance use should be addressed primarily as a health and social issue, that criminal sanctions for personal use possession increase stigma and are not consistent with established public health evidence, and that judicial resources are better used on offences that pose a risk to public safety.
Section 10.2 turns that into a duty. Before laying an information for possession, an officer is required to consider whether a warning, a referral or another alternative would be preferable. Many charges that would once have been laid are not.
Where a charge is laid anyway, that is not the end of the alternatives. Diversion and drug treatment court exist, and the same principles inform how the Crown approaches resolution. What does not follow is that the charge is invalid: subsection 10.2(2) says so expressly.
For a non-citizen even a simple possession conviction is still a conviction with immigration consequences under section 36(2), so a resolution that avoids a finding of guilt is worth more here than it looks on the criminal side alone.
Not any more. All of the mandatory minimums in the Controlled Drugs and Substances Act were repealed in 2022, including the one and two year floors that used to attach to lists of aggravating factors. A great deal of material online still describes them as current. The maximum for Schedule I or II trafficking is unchanged and remains life.
Because possession for the purpose is proved by inference rather than by a sale. Quantity is only one of the building blocks, alongside packaging, scales, cash and phone messages. Each of those is arguable, and the strength of the inference is assessed on the disclosure. Moving a charge from section 5 back to section 4 is one of the most valuable things that can happen on one of these files.
Not automatically, and it is the right question. Some warrantless searches are lawful. Where a search breaches section 8 of the Charter the remedy sought is exclusion of what was found, and whether that is granted depends on the nature of the breach and its effect. It is decided on the record of what the officers did and recorded, which is why the disclosure comes first.
Not on a possession conviction alone. Possession of a Schedule I substance carries a seven year maximum, which falls under section 36(2) of the Immigration and Refugee Protection Act, and that section does not reach permanent residents. Trafficking and possession for the purpose carry life, which is section 36(1), and that one does. The section you are convicted under is the whole question.
No. Section 10.2 requires an officer to consider a warning, a referral or another alternative before laying a charge for simple possession, and many are diverted. If a charge has been laid, diversion and drug treatment court may still be available. What subsection 10.2(2) makes clear is that a charge is not invalid merely because those options were not considered.
Bring your court date and anything you were handed at the scene. Drug charges in Ontario are assessed from the disclosure, and the grading decision is the one to reach first.
