Drug Possession & Trafficking

As Parliament enacts new mandatory minimum sentences for drug offences, it becomes even more important to mount an effective defence against drug charges. Indeed, while there is no mandatory jail term for assaulting your spouse or driving drunk, there may soon be mandatory jail terms for growing marihuana.

Tyler MacDonald continues to defend relentlessly against drug charges, with a focus on challenging that police violated the constitutional Charter rights of his clients to be free from unreasonable search and seizure and to be free from arbitrary arrest and detention. These constitutional violations by police often result in the seized drug evidence being excluded from evidence at trial, which results in the acquittals of his client.

Drug charges are prosecuted by the federal government under the Controlled Drugs and Substances Act. The range of sentences depends on whether the drugs were possessed for personal use, possessed for the purpose of trafficking, actually trafficked, or imported. The amount of drugs affects the penalty, as does the nature of the substance. Drugs are cetagorized into "schedules", and the maxmimum sentence is determined by what schedule a drug falls under. Marihuana (it is not spelled "marijuana" in the CDSA) falls under Schedule II, for example, while cocaine falls under Schedule I.

Charges of trafficking or possession for the purpose of trafficking will usually be laid along with a charge of possession of the proceeds of crime if any money was seized by police during the arrest.

Defending Against Drug Charges

There are many issues to address in defending against drug charges. The Crown must prove certain elements. There are often also constitutional issues with the methods that the police used for detecting or seizing the alleged drugs.

Proving Possession

To prove actual possession of a drug, the Crown must prove that you had both knowledge and control of the drug. It is not enough to have one without the other. For example, you may have control of a drug that is hidden in the car you are driving, but that does not mean that you know the drug is hidden in the vehicle. Conversely, while riding as a passenger in a vehicle, you may know that the driver has hidden a bag of drugs in the trunk which you had nothing to do with. This does not mean that you had control over the drugs. The intricacies of the issues of possession of illegal drugs are extended to situations involveing residences, storage lockers, and even personal property. The case law on these issues is extensive, and there are concepts like "joint possession" (referring to two or more people possessing a substance together) which the Crown may rely on to prove its case. Mr MacDonald can explain the law applies to your case.

Trafficking and Possession for the Purpose of Trafficking

Trafficking a drug can be a major transaction involving large amounts of cash and protected by guns, but simply passing a marihuana joint to another person isalso technically "trafficking" under the Controlled Drugs and Substances Act. Trafficking consitutes passing controlled substance on to anyone else, and any variation of that. Trafficking of any substance is looked upon far more seriously by the courts, and the sentences that are handed out reflect this.

Police forces in Canada expend vast amounts of money and manpower in detecting and investigating drug trafficking. The allegations against you may arise from direct visual surveillance, telephone wiretaps, tracking devices, or the evidence of informants, police agents, or undercover police officers. You often will not find any of this out at the time that you are charged, and only an analysis of all of the disclosure will reveal the Crown's case against you. These cases can be very complex, involving the challenging of wiretap authorizations and search warrants, challenging the credibility of investigating police officers, and bringing various applications for relief under the Charter of Rights and Freedoms.

A charge of possession of a drug for the purposes of trafficking can arise from much simpler allegations. Simply having what the arresting police officer might consider a large amount of any particular drug could lead the officer to charge you with possession for the purpose of trafficking, rather than simple possession. While the police officer may have that discretion, the Crown may have a tougher time proving the charge in court. The Crown first must prove the above-mentioned elements of possession, and then establish beyond a reasonable doubt that you possessed the drug for the purpose of providing some or all of it to others. This might be done by putting forward an "expert" witness who will say that the amount of drugs possessed is too much for any one person to use themselves, or something to that effect. Whether the expert knows what he or she is talking about, and whether the only reasonable explanation is that you were intent on passing the drug in to others, is a matter for the Court to decide, and you will need a defence lawyer that you can trust to advocate for your side.