This instruction assumes that the analysis set out in the certificate is not contested. If the analysis is challenged or if no Certificate of Analyst has been filed, review the relevant evidence [often an admission of fact] and relate to issue.

This instruction covers all three types of possession: personal, constructive and joint. If only one type arises from the evidence, you should modify this instruction accordingly.

Where the Crown relies on more than one form of possession, instruct the jury as follows:

Proof of any one of these forms of possession is sufficient to establish that (NOA) was in possession of the substance. You do not all have to agree on the same one. If each of you is satisfied beyond a reasonable doubt about one of them, the Crown will have proved this essential element.

If there is evidence that the accused believed the substance to be another prohibited substance, an instruction along the following lines should be given: [7]

You have heard evidence that (NOA) believed the substance to be (specify) not (specify as set out in the indictment). I tell you as a matter of law that the fact that (NOA) believed the substance to be (specify) is irrelevant because it is an offence to possess either substance for the purpose of trafficking.

If there is evidence of wilful blindness, an instruction along the following lines should be given:

Knowledge is also established if the Crown proves beyond a reasonable doubt that (NOA) was aware of indications about the illegal nature of the substance but deliberately chose to ignore those indications because s/he did not want to know the truth.

If there is evidence of recklessness, an instruction along the following lines should be given: [8]

Knowledge is also established if the Crown proves beyond a reasonable doubt that (NOA) saw a risk that the substance was illegal, but decided to take the risk.[9]

If there is evidence that the accused believed the substance to be one that is not included in Schedules I, II, III or IV, an instruction along the following lines should be given:

(NOA)’s position is that s/he did not know that the substance was (specify as set out in the indictment) but, rather, honestly believed that the substance was (specify), which is not a prohibited substance. (NOA)’s belief must be honest, but it does not have to be reasonable. However, you must consider whether there were reasonable grounds for (NOA)’s belief; the presence or absence of reasonable grounds may help you decide whether (NOA)’s belief was honest.

The following instruction applies only if the controlled substance is one mentioned in Schedules I, II, or III. If the controlled substance set out in the indictment is mentioned in Schedule IV, then there is no included offence of simple possession, and the following instruction will have to be modified accordingly.[13]

[1] See s 2(2) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19, for an expanded definition of “substance.” Note that the definition of controlled substance in the Act includes substances identified in Schedules I, II,III, IV and V, but simple possession is prohibited only with respect to substances set out in Schedules I, II and III, whereas trafficking, and possession for the purpose of trafficking, are prohibited with respect to substances set out in Schedules I, II, III and IV. See s 4(1), and ss 5(1) and (2).

[2] Where the identity of the accused is an issue, remember to include any further instructions that may be relevant (e.g., eyewitness identification, alibi, similar fact, etc.). Where date is an issue, the jury must be told that the Crown must prove that the offence occurred within the time frame indicated in the indictment. Where place is an issue, the jury must be told that the Crown must prove that some part of the offence occurred in the place indicated in the indictment.

Generally, the Crown must prove the date and place specified in the indictment. However, where there is a variation between the evidence and the indictment, refer to s. 601(4.1) of the Criminal Code and the jurisprudence following R. v. B. (G.), [1990] 2 S.C.R. 3.

[3] Section 2 of the Controlled Drugs and Substances Act, S.C. 1996, c. 19, directs that the definition of "possession" is the same as in the Criminal Code of Canada, R.S.C. 1985, c. C-46.

                Section 4(3) of the Criminal Code defines "possession" as follows:

(3) For the purposes of this Act,

(a) a person has anything in possession when he has it in his personal possession or knowingly

(i)has it in the actual possession or custody of another person, or

(ii)has it in any place, whether or not that place belongs to or is occupied by him, for the use or benefit of himself or of another person; and

(b) where one of two or more persons, with the knowledge and consent of the rest, has anything in his custody or possession, it shall be deemed to be in the custody and possession of each and all of them.

                In R. v. Pham, [2005] O.J. No. 5127 (C.A.) at para. 14, (affirmed 2006 1 SCR 940), the Ontario Court of Appeal interpreted this section as creating three types of possession:

(a) personal possession as outlined in subsection 4(3)(a);

(b) constructive possession as set out in subsections 4(3)(a)(i) and 4(3)(a)(ii); and

(c) joint possession as defined in subsection 4(3)(b).

[4] Insert the bracketed words if appropriate. This instruction will have to be modified where the accused raises a general defence with respect to which he or she has a legal burden of proof, such as mental disorder, extreme intoxication, or automatism.

[5] R. v. Beaver, [1957] SCR 531; R. v. Terrence, [1983] 1 SCR 357; R. v. Morelli, [2010] 1 SCR 253; R. v. Pham, 2006 SCC 26, [2006] 1 SCR 940, affirming (2005), 203 CCC (3d) 326 (ONCA).

[6] R. v. Pham, 2006 SCC 26, [2006] 1 SCR 940, affirming (2005), 203 CCC (3d) 326 (ONCA); and R. v. Morelli, [2010] 1 SCR 253 at para 17.

[7] Where the substance is one of those prohibited under the Controlled Drugs and Substances Act (e.g., heroin), it makes no difference if the accused believed it was another substance, provided that the latter is in fact  a substance the trafficking in which is illegal (e.g., cocaine) under the Act. See R. v. Kundeus, [1976] 2 SCR 272; R. v. Williams, 2009 ONCA 342, [2009] O.J. 1692 at para. 19.

[8] Prior to 1989, it seemed to be clear that the knowledge element in drug cases could also be established through either recklessness or wilful blindness. The Supreme Court of Canada affirmed a decision of the Ontario Court of Appeal in relation to a charge of possession for the purpose of trafficking, where Martin J.A. had stated that:

In our view, the trial Judge should have directed the jury that if they were satisfied beyond a reasonable doubt that the respondent assumed control of the package, knowing that it contained a drug, the trafficking in which was prohibited, or was wilfully blind to it being such a drug or was reckless as to whether it was such a prohibited drug, then the knowledge necessary to constitute the offence was established.

R. v. Aiello, [1978] O.J. No. 373 (C.A.), at p. 488, affirmed in [1979] 2 S.C.R. 15.

                But in 1989, the Ontario Court of Appeal, in R. v. Sandhu, [1989] O.J. No. 1647, held that knowledge for the offence of importing can extend from actual knowledge to wilful blindness, but not to recklessness.

                Since then two Courts of Appeal have held that knowledge can be established either by proving wilful blindness or recklessness. See R. v. Oluwa, [1996] B.C.J. No. 1065 (C.A.), R. v. Vu, 2004 BCCA 381, [2004] B.C.J. No. 1387, and R. v. Rathod, 1993 CanLII 4119 (C.A.Q.).

                The Supreme Court of Canada reaffirmed in R. v Briscoe, [2010] 1 SCR 411 that, in general, recklessness is a sufficient state of mind for criminal offences.

[9] R. v. Sansregret, [1985] SCJ No 23, (1985), 18 C.C.C. (3d) 223, at p. 235 the Supreme Court of Canada described the difference between recklessness and wilful blindness:

Wilful blindness is distinct from recklessness because, while recklessness involves knowledge of a danger or risk and persistence in a course of conduct which creates a risk that the prohibited result will occur, wilful blindness arises where a person who has become aware of the need for some inquiry declines to make the inquiry because he does not wish to know the truth.  He would prefer to remain ignorant.  The culpability in recklessness is justified by consciousness of the risk and by proceeding in the face of it, while in wilful blindness it is justified by reason of the accused’s fault in deliberately failing to inquire when he knows there is reason for inquiry.

[10] See R. v. Eccleston and Gianiori, [1975] B.C.J. No. 1062; R. v. Tan, [1984] S.J. No. 689, and R. v. Rousseau (1992), 70 C.C.C. (3d) 445, [1991] J.Q. No 1911.

[11] See R. v. Grant, 2009 S.C.C. 32, at paras. 141-147.

[12] See R. v. Grant, 2009 S.C.C. 32, at paras. 141-147.

[13] See footnote 1.