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Drug Possession and Trafficking Defence Law in Canada


In Canada, drug related crimes are codified in the Controlled Drugs and Substances Act. While this Act is separate from the criminal code, drug charges are criminal offences which can result in a criminal record upon conviction along with strict penalties. Common substances that lead to possession and/or trafficking charges include: marijuana, hash, cocaine, heroin, GHB, ecstasy, mushrooms, and LSD.

Despite the belief that Canada's justice system is "soft on drugs", in reality stiff sentences for drug possession and trafficking are relatively common in Canada. Sentences for drug crimes can range from probation/discharge, to lengthy prison sentences (including life imprisonment). A drug related conviction will result in a criminal record (if no discharge is granted) and will likely bar you from travelling to the United States in the future.

Defences to Drug Possession and Trafficking Charges

On the surface, being charged with a drug crime seems relatively simple: the police discover the drugs and charge you for possession or trafficking. In reality, there are numerous technical legal defences available to those who are charged.

Most defences to drug related charges fall under two specific categories:

1) Charter arguments challenging the manner in which evidence was collected;

2) Factual arguments challenging whether the accused actually had legal possession of the drugs, including the requisite knowledge and awareness of the presence and nature of the substance.

Many accused severely damage their ability to use one or both of these defences by making statements to the police that either serve as admissions of guilt, or otherwise impair their defence lawyer's ability to offer alternative explanations to the court that may exonerate the accused.

Charter Defences to Drug Charges

The Canadian Charter of Rights and Freedoms guarantees all persons the right not to be subject to "unreasonable search or seizure" and the right not to be "arbitrarily detained". The police can't legally search or detain a person just based on a "hunch". They need to have specific reasons for doing so, which is commonly referred to as having "reasonable grounds".

There is no specific definition of what exactly constitutes reasonable grounds, however courts have found there were no reasonable grounds in cases where the police conducted searches solely because the person was in a bad neighbourhood, had a criminal past, or just looked suspicious.

Moreover, in cases where the defendant is a minority, courts have been particularly careful to ensure police searches or detention are not the result of racial profiling.

Search "incident to arrest"

There is a common law power for police to search an individual's person without a warrant upon placing the person under arrest. The purpose of this search is for gathering evidence and for the personal protection of the officers. Many times drugs are discovered upon warrantless searches conducted incident to arrest of an unrelated offence. These searches are typically considered legal if the scope of the search is within the close proximity to the person.

Example of a legal search incident to arrest

A person is seen in his front yard with an illegal weapon is arrested and the police discover marijuana in his pocket, this search is likely permitted.

Example of a possibly illegal search incident to arrest

If the police in the same above example decide to enter and search his home without a warrant at the scene of the crime, the search of the house without a warrant may be considered a Charter violation.

In deciding whether the search was overreaching, the court will look to see if there were any exigent circumstances to enter the house. For example, if they had reason to believe someone in the house was in danger, or if they had reason to believe evidence would be destroyed if not immediately extracted from the house. Another factor is whether the suspect consented to the search of the house.

Consent to Search

Police will always try to obtain consent to search because it likely eliminates the possibility that the search will be found unconstitutional. Many individuals are under the impression that they are legally required to consent to searches. You have a right to refuse. If you are not being placed under arrest, and absent exigent circumstances, the police likely don't have a right to search.

Plain View

Officers are permitted to seize and charge you for drugs/narcotics they find in plain view. If an officer pulls you over and notices a joint on passenger seat, he has a right to arrest you and search you incident to arrest.

Drug Search Warrants

Even if the police have a warrant, the search could still be considered illegal. If the police exceeded the authority of the warrant, or the warrant was found to be unreasonably granted, the evidence may be excluded in court. For example, if the police have a warrant to search a computer system related to a cyber crime and they end up finding drugs stuffed in a pillowcase in the house, their search could be illegal because they exceeded the scope of search authority granted in the warrant.

Judges and justices also need reasonable grounds to grant warrants. Sometimes warrants are found invalid because the warrant was issued on a mere "hunch" or based on obviously improper grounds (for example: racial profiling).

Evidence illegally obtained

Just because evidence is obtained illegally does not necessary mean the court will exclude it and acquit you. It is possible for a court to admit evidence that is illegally obtained if it finds its exclusion unnecessary under s. 24 of the Charter. It is thus important that your lawyer successful argue that the illegal search and seizure brings the administration of justice into disrepute to such a degree that the only acceptable remedy is to exclude the evidence.

Drug defences relating to possession

The accused's legal possession of the drugs needs to be proven to support a finding of guilty. The legal test to whether a person has actual possession of drugs falls under three categories:

1) actual possession;
2) constructive possession;
3) joint possession.

Actual Possession

In order to legally be found in actual possession of drugs, the accused must: a) have some degree of control over the drugs, and b) have knowledge that the items are drugs.

Knowledge requirement

The defence of lacking knowledge is viable if the accused was not aware that they were in possession of the drugs (or was under the belief that the illegal drugs were in fact another, legal substance). Perhaps the accused is found in possession of an over-the-counter pill bottle that is found to contain other illegal narcotics. If the accused truly believed the illegal narcotics were not in the the bottle, he is legally not guilty. Proving this will depend on the accused's ability to convince the court that the circumstances were such that it was reasonable for him not to be aware of the illegal drugs.

People borrow bags, vehicles, clothes, and other items that could contain drugs that are owned by a third party. While the accused may be in possession of the drugs by having control over them, this does not necessarily mean they have legal knowledge of the possession.

Constructive Possession

Constructive possession refers to when the drugs are stored in somewhere other than on the accused's actual person or immediate proximity. This could be a residence, storage locker, or any area area that they occupy or control. Similar to actual possession, control and knowledge will still need to be proven.

Joint Possession

Joint possession includes circumstances when one person stores or is holding drugs for the benefit of someone else, or both someone else and themselves. Joint possession charges usually arise when someone stores drugs at the residence of another person with their consent. In such cases, both individuals can be charged with possession. If, however, one person stores the drugs at the other person's residence without their knowledge, the conditions for joint possession are not met.

Drug Convictions

The reason many people are convicted of drug related charges is because of how they interacted with the police. This includes consenting to searches that resulted in the finding of illegal drugs, and giving statements to police that admit to their knowledge of possessing the illegal drugs.

Drug cases are not automatic convictions. There are numerous legal defences available those charged with drug crimes. Many people are acquitted or eventually have the charges withdrawn because they refused to speak to the police and their lawyer was able to successfully raise doubt regarding their knowledge of the drugs, or the legality of the police's search.


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