Am I guilty of possessing a drug if I was just a passenger in the car?

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Am I guilty of possessing a drug if I was just a passenger in the car?

If police find drugs in a car in which you are a passenger, you may be guilty of criminal drug possession, or even possession for the purposes of drug trafficking – it depends on the situation.

You will not be found guilty of drug possession unless the crown prosecutor can prove that the drug was illegal to possess and you possessed it, but the legal definition of criminal possession is complicated and includes things many people may not expect.

What drugs are illegal to possess?

The Controlled Drugs and Substances Act (CDSA) organizes certain drugs and materials used to make drugs (“controlled substances”) into schedules and creates criminal offences that apply to the controlled substances in those schedules.

It is a criminal offence under section 4(1) of the CDSA to possess any Schedule I, Schedule II, or Schedule III drug (unless lawfully authorized to do so). These drugs include fentanyl, heroin, opium, morphine, codeine, oxycodone, cocaine, “crack-cocaine,” methamphetamine, amphetamines and amphetamine salts, synthetic cannabinoids (e.g., “K2”/“spice”), GHB, PCP, LSD, psilocybin (i.e., “magic mushrooms”/“shrooms”), and many other drugs.

Although it is not a criminal offence to simply possess other controlled substances, it is illegal to manufacture, import, export, or sell them (without lawful authorization). These include anabolic steroids, barbiturates, benzodiazepines, and many other drugs.

It is legal for adults to possess up to the equivalent of 30 grams of dried cannabis for personal use, provided it not illicit cannabis. Cannabis offences are created by the Cannabis Act, and I have a separate FAQ on cannabis laws in Alberta.

I also have a separate FAQ about the different types of drug crimes, which include “simple” drug possession, and possessing drugs for the purposes of trafficking.

What is drug possession?

There are three types of drug possession.

• “Personal/actual possession,” which means having the drug on you or very close to you (such as in your hand, your pocket, or your backpack sitting directly in front of you).
• “Constructive possession,” which means not having personal/actual possession of the drug but keeping it with another person or at another place for your benefit or someone else’s benefit (for example, keeping it in your basement or having your friend keep it in their car).
• “Joint possession,” which means a group of two or more people sharing possession of the drug with consent (for example, you and two friends agree to buy drugs together and split the cost, and one of your friends makes the buy).

You do not possess the drug unless you have some level of knowledge about what it is and control over where it is.

In order to possess a drug, you have to know that it is a drug or be reckless or “willfully blind” about it being a drug.

For example, if you are at a concert and accept an offer to buy a tiny baggie of white powder for $50.00, then the judge will find that you either knew it was an illegal drug or were reckless or willfully blind about whether it was an illegal drug. This is true even if the person who sold you the drug called it “baking soda.” (Accepting an offer to buy a drug is a way to commit the separate criminal offence of drug trafficking. 

However, if someone slipped a drug into the hood of your sweater and you did not even notice, then you are not committing the crime of drug possession because you did not know that it was drug possession or have any control over the drug.

Proving criminal drug possession is complicated.

Drug possession can also be part of a more serious crime: possession of a drug for the purposes of trafficking. I have a separate FAQ about the different types of drug offences, and another about drug trafficking offences specifically.

What if I am in a car with drugs?

Just because you are in a vehicle containing drugs does not necessarily mean that you are guilty of possessing the drugs. It all comes down to whether the crown prosecutor can prove that you knew about and had some control over the drugs. Below, I address some different scenarios.

What if I am a passenger in a car that i did not know had drugs?

If you were the passenger of a car and had no idea there were drugs in the car, then you are probably not committing drug possession. Consider the following scenario to illustrate the point.

Imagine you are a passenger in a car heading to a camping destination with three friends. You do not have drugs on your person or in your bags. One of your friends, another passenger, has cocaine that they have hidden in the glove box, but you have no idea. The police pull over the car because the driver has a warrant for their arrest. When the driver retrieves their license and registration from the glove box, the cocaine falls out of the glovebox and into plain view of the officer, who sees it and charges everyone in the vehicle with drug possession. All of this is proven in court.

You truly had no idea that any of your friends had drugs – the thought did not even occur to you.

In this case, you did not possess any drugs and should not be found guilty of drug possession. However, that does not mean you face no legal risk. In some cases, a judge can infer that you have knowledge and consent of the drugs based on your relationship with the other people in the vehicle and the things that you do together. The truth does not always come out in court.

What if I am a passenger in a car that I knew has drugs?

You and your three friends are travelling together to a concert, and you are a passenger in the car. This time, you know that one of your friends in the car has LSD on them and do nothing about it. A police officer pulls the car over and lawfully finds and seizes the LSD, charging you all with drug possession. All of this is proven in court.

Based on that limited information, you probably did not possess the LSD, but whether you would be found guilty of drug possession in this scenario is harder to predict and depends on the facts.

Consider the following possibilities which may impact your chances of being found guilty (assuming they are proven in court):

• If the friend with the LSD is the driver of the car, then you may be less likely to be found guilty because drivers generally have more control over what happens in the car than passengers.
• If you did not find out about the LSD until right before the car was pulled over, then you may be less likely to be found guilty because you did not have control over the LSD and did not have an opportunity to distance yourself from it.
• If you tried to keep the police from finding the LSD, then you may be more likely to be found guilty because you tried to exercise some control over the LSD.
• If you asked your friend if you could take some of the LSD at the concert and your friend said yes, then you are more likely to be found guilty because you had some amount of knowledge and control over the LSD. You might also have had joint possession of the LSD with your friend once your friend agreed to let you have some of it at the concert.

What if I am the driver and only person in a car with drugs?

If you are driving a car that you know has drugs in it, and no one else is in the car, then you are probably committing drug possession. Consider the following scenario to illustrate the point.

Imagine you are the driver and only person in a car that has methamphetamine sitting on its passenger seat next to you, in plain view. You know that it is methamphetamine (or even just that it is a drug). A police officer pulls you over for speeding and sees the methamphetamine. You are charged with drug possession, and all of this is proven in court.

In this scenario, a judge may infer that you knew about and had control of the methamphetamine, and the chances of you being found guilty of drug possession are quite high. That said, every case is different, and many cases resolve without going to trial. I have separate FAQs on options to resolve your matter other than trial and diversion programs.