Defences Available If You Are Facing Drug Charges
If you have been charged with a drug offence, what you do next could profoundly impact your future. Drug laws are complex and, depending on the circumstances, you could spend a significant amount of time in prison if you are found guilty. For example, trafficking in a hard drug, such as cocaine, can result in a lengthy jail sentence, with the maximum sentence being a lifetime prison term. Even a conviction for a relatively minor offence can leave you with a criminal record, which could affect your ability to find employment or to travel to the United States.
There is much to consider if you have been arrested. The first thing you should do is seek legal advice. It is your right, just as it is your right, to remain silent. Do not speak to the police. You cannot talk your way out of a criminal charge, and there is a chance you could end up saying something that will incriminate yourself or others. Remember to remain calm and contact my office for a free initial consultation, so I can start building your defence.
THE AMOUNT AND TYPE OF THE DRUG MATTERS
There is a big difference between being charged with trafficking large quantities of something such as heroin and being arrested for simple possession of a small amount of a drug. In law there is a defence of de minimis non curat lex, which simply means the law should not concern itself with trifles. This could be a defence if you are charged with possession of a very small quantity of an illegal drug.
This principle is illustrated in a Queen’s Bench of Alberta case of a man who was convicted of unlawfully possessing a controlled substance.
The man was arrested after police found him in a car with a prostitute. She had brought a crack pipe with her when the man picked her up and drove to a remote spot. After being initially questioned by officers, the woman was taken to the police van but left the pipe behind.
After searching the man’s car, police found the pipe, which contained a trace amount of cocaine, and he was charged. He was later found guilty at trial. However, in overturning that conviction, the appeal judge noted, “an individual cannot be convicted in reliance on a trace of cocaine residue, particularly when it is unclear as to the origin of the trace amount. The doctrine of de minimis non curat lex should have been invoked.
“The principle behind this ancient legal maxim in connection with narcotics is that the law should not concern itself with very small quantities of drugs,” he wrote.
This principle will not apply in all cases where a small quantity of drugs is found. However, it still may be possible to argue for a conditional discharge. This would involve you pleading guilty.
With a conditional discharge, a finding of guilt is made, but no conviction is registered. A conditional discharge requires the following conditions for a period of time. The conditions always come in a probation order that can be in effect from one to three years.
A conditional discharge stays on a criminal record for three years after the completion of the probation order. It is not necessary to apply for a pardon for the discharge to be removed from the record.
You may also be eligible for the Alternative Measures Program if you do not have a criminal record. To participate, you must be recommended by the Crown prosecutor. If you complete some form of community service, make a charitable donation or do volunteer work, the charges against you will be withdrawn.
Conversely, if you are charged with possession or trafficking of a “hard drug,” expect to face serious consequences. The justice system deals harshly with these drugs as we have seen with the possession and trafficking of fentanyl.
Recently the Supreme Court of Canada ruled that longer sentences for two Alberta drug dealers were appropriate.
“Fentanyl has altered the landscape of the substance abuse crisis in Canada. It is a highly addictive substance that puts its users at risk of serious harm, far greater than other opioids. Various courts have described fentanyl as a national crisis and the epidemic shows no signs of abating. The time has come for the perception of the gravity of large-scale trafficking in fentanyl to accord with the gravity of the crisis it has caused,” the court wrote.
“Accordingly, heavy penitentiary sentences will be appropriate where offenders have trafficked in large quantities of fentanyl and assumed leadership roles in the trafficking operation. Sentencing judges should feel justified, where circumstances warrant, in applying mid‑level double-digit sentences and, in particularly aggravating circumstances, potential sentences of life imprisonment.”
WAS THE POLICE SEARCH LEGAL?
The Charter of Rights and Freedoms came into effect in 1982 and protects the rights of all Canadians. If your rights have been violated during your arrest, your lawyer can argue that any evidence gathered should be ruled inadmissible at your trial. The Charter provides the right to life, liberty and security of the person; the right to be free from unreasonable searches and seizures; the right to be free from arbitrary detention; and the right to retain and instruct counsel without delay and to be informed of that right.
Under s. 487 of the Criminal Code, police can be granted a search warrant if they have “reasonable grounds to believe [it] will afford evidence with respect to the commission of an offence, or will reveal the whereabouts of a person who is believed to have committed an offence.”
Police cannot simply get a warrant on a hunch, however, and they must not exceed the power granted by it. For example, if they have a warrant specifically to examine documents on your computer, they are not permitted to do a broad search of your home. A warrant can also be found invalid if it is based on improper grounds.
Police have some leeway when searching someone who is placed under arrest but they cannot overstep their authority. If you are pulled over and officers notice illegal drugs in plain view, they are entitled to seize them and charge you. They must have reasonable grounds to suspect a Criminal Code offence has been committed to search your vehicle. If you have been taken into custody, police also have the right to search you. However, if you are arrested on your driveway, officers do not have the right to enter your home to conduct a search without a warrant. An exception would be if police believed someone inside the home was in danger.
WERE YOU ENTRAPPED BY POLICE?
Entrapment occurs when police coerce or induce someone to commit a crime. It is a defence that can lead to a charge being dismissed. There are two varieties of entrapment under our law — inducement-based and opportunity-based. Opportunity-based entrapment occurs when investigators provide a suspect with an opportunity to commit an offence without a reasonable suspicion that they are already engaged in criminal activity. If police go beyond providing an opportunity for someone to commit a crime and actually influence them to offend, that would be considered inducement-based entrapment.
Examples can include harassing someone who has not yet committed a crime, coercing them to do something illegal or putting them under constant pressure that leads them to eventually commit an offence. What constitutes entrapment is not always easily understood so you need an experienced lawyer to guide you.
WERE YOU AWARE YOU WERE IN POSSESSION OF ILLEGAL DRUGS?
To gain a criminal conviction, the Crown must prove beyond a reasonable doubt that you were knowingly in possession of a drug that is illegal. One burden of proof in establishing the drug was illegal. That is much simpler than demonstrating that you knowingly possessed the drug and that you realized you were committing a criminal offence.
You don’t have to actually have physical possession of a drug to be convicted. If it can be proven that you were aware of the drug and had some degree of control over them. Complicity will depend on what the Crown can prove you knew. For example, if police search your home and find drugs out in plain view, it is reasonable to expect that you knew they were there. However, if someone comes to your residence and hides illegal drugs without your knowledge, you can argue that a conviction is not warranted.
RETAIN A LAWYER WHO HAS THE EXPERTISE TO DEFEND YOU
I have a proven track record when representing clients facing drug charges. Read my Criminal Case Decisions here for more. Don’t take a chance with your future. Contact my office today for a free initial consultation.