How To Beat Drug Trafficking Charges In Canada
The stakes are high when you are charged with drug trafficking in Canada. Many offences under the Controlled Drugs and Substances Act can result in lengthy jail sentences, even for first time offenders. There are a few key concepts to keep in mind and discuss with an experienced Criminal lawyer.
Possession
…Is nine-tenths of the law?
This ye olde saying makes it sound like there is sort of math formula to calculate the law of possession. Like many examples of the justice system in popular culture, it’s unfortunately not very accurate.
Possession is all a matter of knowledge and control.
In order to possess something, someone needs to know that it exists, or be willfully blind or reckless about knowing that it exists. As example, say Bob asks his friend Bill to drop off a locked suitcase at a shady address at 2AM in the morning, in return for $1000. When Bill is later pulled over by police at 1:50AM, who bust open the suitcase and find 4 kilos of cocaine, Bill is going to have a very hard time arguing that he did not know, or shouldn’t have known, that he was in possession of cocaine. These ideas are examples of knowledge.
Control is all about the ability to move or manipulate a thing. As example, say Barry and Brad are roommates in the same apartment. Barry has a locked safe in his closet that Brad has seen before, and even has a hunch that Barry might be storing some unlawful items in there, but Brad does not have permission to go into Barry’s room, nor does he have the combination for the safe. Even if someone knows about a thing, if they cannot take it, move it, or destroy it, they do not have control of the item.
Possession requires the government prove knowledge AND control. Many drug charges require proof of possession – Possession for the purposes of trafficking in Canada being a prime example – and if knowledge or control is successfully challenged, the charge will not stick.
Simple possession of drugs vs. drug trafficking
Signs of trafficking
Many drug users know that Costco and drug dealers have something in common – they both give you a discount when you buy in bulk. Holding a lot of product, however, runs the risk of the police misidentifying that person as a dealer rather than a user.
If the government cannot put evidence of actual drug transactions before a Judge, they will often rely on “experts” to establish that the drugs were for the purposes of trafficking. These individuals are generally police officers with a background in drug work. No expert is completely unbiased when they testify in court, but you can take a guess at how often these police officers give an expert opinion that helps an Accused instead of the government.
A Judge hearing the facts of the case and the testimony of the officer will consider any “indicia of trafficking”. This includes:
Cash
Cutting agents and related tools (blenders, scales, etc.)
“Score sheets” or ledgers
Baggies and other packing materials
Form and packaging of drugs themselves
Ex. a large single piece of crack cocaine vs. many smaller pieces individually wrapped
Fighting the Search
Warrants and ITO’s
It may not always feel like it, but everyone in Canada is protected by Charter rights. This includes the right to be secure against unreasonable search and seizure.
The police must follow certain rules when searching an individual or their property. Different rules apply to different property – a person’s pocket, their backpack, their car, their home – but the core principles are constant: the reasons for the search must be reasonable, and the search itself must be done in a reasonable way.
A search warrant is one of the most common ways police will search a piece of property. This involves applying to the Court in advance of the search, and providing their grounds in what is called an Information to Obtain, or ITO. The ITO must contain the following:
Legal description of the offences
Evidence that shows a reasonable probability that the offences are actual occurring
Legal description of the location(s) to be searched
Evidence of reasonable grounds to believe a location will produce evidence of the offences
Legal description of the things to be searched and seized
Reasonable grounds for believing these things will provide evidence of the offences
Everyone is human, and that includes the police, and court staff. Mistakes can be made, or warrants can be granted that are incorrect or incomplete. Catching these errors is a matter of knowing the law and going through the evidence with a fine-tooth comb.
A search and seizure without a valid warrant is considered prima facie unreasonable. This is an overly fancy legal way of saying that if the police do not have a good warrant, the Crown must prove that there was some law that authorized the search. If they cannot do this, a Judge will consider throwing the evidence out of Court altogether.
The Co-Accused
With friends like these…
It is common for police to cast a wide net in a drug bust, arresting anyone who may be involved in illegal conduct. This approach runs the risk of pulling innocent people into Criminal charges. Just because a family member or roommate were involved in drug trafficking, does not mean that everyone in the home knew about what was going on or were drug traffickers themselves. If multiple people are arrested as part of the same offences, these individuals are known as co-accused.
The Crown must prove all elements of an offence beyond a reasonable doubt. In the case of drug charges, this often requires proving possession and intent to traffic or possession for those purposes. If a co-accused is clearly more involved than the other parties, or if the Crown’s case is stronger against some individuals more than others, an experienced lawyer will negotiate to have the charges dropped or reduced.
This includes the possibility of what is known as a Negative Affidavit. An affidavit is a formal written statement that is made under oath. If an individual is able to swear that they had no knowledge of the drugs or the intent to traffic, they can complete an affidavit of this kind and provide it to the Crown. In the right case, this can result in an exceptional plea deal or even a stay of proceedings.
Drug Treatment Court (DTC)
Rehabilitation vs. incarceration
Drug Treatment Courts across Canada focus on addressing the addiction underlying many drug offences, as an alternative to throwing someone in a jail cell. These programs are no walk in the park – Winnipeg’s DTC is generally 18-24 months of weekly court attendance, drug testing, and intensive treatment – but can potentially save someone from years in prison.
The Federal Crown is in charge of deciding who gets into DTC, and consider the following:
Dependency on drugs (crime was motivated by addiction rather than for-profit)
Quantity and type of drug found
Previous criminal record and nature of convictions
Prior drug offences and a record of violence can quickly disqualify someone
For those willing to put in the work, and with the right circumstances to be accepted into DTC, it can be a life changing experience.
The Future
Legalization, CSO’s, and more
The law, including the Criminal Code of Canada and the Controlled Drugs and Substances Act, is often called a “living document”. This means that things are always being changed, and hopefully in ways that keep up with the changing values of the public.
We have come a far way in understanding drug addiction and the illegal markets that exist to meet these needs. Talk to anyone who knows and they will likely tell you that the “War on Drugs” has been a complete failure. Even if you believe marihuana is still the work of the devil despite being legalized, ask yourself if the answer was the thousands of man-years lost to people being incarcerated in the United States, Canada, and elsewhere. Opponents of legalization are also not likely to complain about the estimated $43.5 billion that legal marihuana has injected into the Canadian economy.
The Canadian government is currently discussing debating a Bill C-22, which would make a Conditional Sentence Order (CSO) – or “house arrest” as many like to say – available for more drug trafficking offences. Part of the reasons for this Bill, has to be a recognition of the reality that many drug dealers are not a Tony Montana “Scar Face” buying mansions and private jets. Instead, they are often people in desperate times, trying to feed an addiction any way they can, or providing an unlawful channel for other users.
Already substances like Psilocybin (“magic mushrooms”), or MDMA, are being researched in government approved studies, to see how they can be safely used to treat difficult illnesses. This is the tip of the iceberg for future legalization, and offers hope for folks who wish to access this therapy, without the need for buying or selling in illegal markets.
The Criminal Justice system can be a scary concept, but there is always room for hope. If you are facing a difficult charge, or have questions about the law, please Contact me directly.