Drug Offences and Defences

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Toronto Drug Offences and Defences

Drug Offences and Defences.

The prosecutions of drug related offences are governed by the Controlled Drugs and Substances Act (CDSA) which was brought into force on May 14, 1997 and created a new scheme for the regulation of certain dangerous drugs and narcotics, now known as “controlled substances”.  The CDSA repealed and replaced the Narcotic Control Act and Parts III and IV of the Food and Drugs Act, and effectively consolidated in one Act, the major provisions dealing with illicit drugs.  The CDSA contains several schedules listing the controlled substances grouped by their perceived danger.  The most serious drugs such as cocaine and heroin fall under the category of Schedule I while marijuana falls under Schedule II.

The drug offences are considered to be very serious especially when the drugs involved are those listed in Schedule 1 and where the amount of drugs involved is significant.  The offences themselves range from simple possession of drugs to possession for purpose of trafficking, trafficking and conspiracy to traffick.

Persons convicted of drug offences often face jail sentences.  In fact section 10 of the CDSA specifically lists certain aggravating factors which require the sentencing judge to give reasons for declining to impose a jail sentence if any of those factors are present in the case.  Those factors include: cases where the person carried, used or threatened to use a weapon in relation to the commission of the designated substance offence; used or threatened to use violence in commission of designated substance offence; trafficked in a substance included in Schedule I, II, III or IV or possessed such a substance for the purpose of trafficking, in or near a school, on or near school grounds or in or near any other public place usually frequented by persons under the age of eighteen years; trafficked in a substance included in Schedule I, II, III or IV, or possessed such a substance for the purpose of trafficking, to a person under the age of eighteen years; was previously convicted of a designated substance offence; used the services of a person under the age of eighteen years to commit, or involved such a person in the commission of, a designated substance offence.

The term “designated substance offence” does not include simple possession but does include trafficking and possession for purpose of trafficking.

The potential penalties for drug offences are very serious.  For instance the maximum sentence for simple possession of cocaine is seven years and the maximum penalty for trafficking or possession for purpose of trafficking in cocaine is life imprisonment.  In addition, the government continues to impose new sanctions upon the persons convicted of drug offences.

Thus, on November 6, 2012, parts of Bill C-10, The Safe Streets and Communities Act, dealing with serious drug offences came into force restricting the availability of conditional sentences for certain drug offences.

Now conditional sentences are not available for persons convicted of trafficking, possession for purpose of trafficking, importing, exporting, possession for purpose of exporting and production involving a Schedule I substance (heroin, morphine, cocaine).

In addition, Bill C-10 introduced a minimum one-year jail sentence for offences of trafficking and possession for purpose of trafficking involving Schedule I substance where such offence is committed For the benefit of organized crime; Involving the use or threat of violence; or by person who was in the past 10 years convicted of a serious drug offence involving a Schedule I or II substance.  And if such offence is committed in prison, in or near a school, or an area normally frequented by youth or in the presence of youth, in concert with a youth or in relation to a youth, the minimum sentence increases to two years.

The drug cases are prosecuted by federal Crown Attorneys specially trained in this area of criminal law and the police devotes formidable resources for investigation of these cases.  It is not uncommon today to encounter massive drug prosecutions based on months or even years of surveillance, involving dozens of accused persons and tremendous volumes of wiretaps and other materials.

Considering the skills and resources the government has against people accused of drug offences, such people should settle for nothing less than experienced defence counsel ready to take on the challenge and help in refuting the charges or minimizing the consequences of conviction.

Since vast majority of drug offences come to light as a result of various forms of searches, not surprisingly the defence often focuses on the legality of such searches.  Accordingly, any drug lawyer should be well familiar with the constitutional principles governing the validity of searches and admissibility of evidence derived from them.

Two main groups of searches are (I) warrantless searches and (ii) searches conducted pursuant to search warrants.  In case of warrantless searches, the Crown must show sufficient grounds for the search in order for the search to be legal.  In the case of the searches pursuant to search warrants, the defence must show that the warrant is invalid or the search was not conducted in accordance with the warrant.

However, demonstrating that the search was illegal is only the first step to successful defence.  Step #2 is to persuade the court that due to the illegality of the search, the results of the search should be excluded from evidence.  This is a mandatory and critical stage in any case where the accused claims violation of his constitutional rights.  After all, if the evidence is not excluded at the end of the day and this evidence is capable of proving guilt beyond a reasonable doubt, any efforts to show constitutional breaches will have been fruitless.  In 2009, the Supreme Court of Canada enunciated the new test for determining whether the evidence obtained as a result of constitutional violations should be excluded and any experienced defence counsel should know the test by heart and should be able to relate the general test provisions to the particular facts of the client’s case to tip the scales in favour of exclusion of evidence.

The outcome of drug prosecutions also often turns on the interplay between the accused and the drugs.  For example, you should not be found guilty of possession of drugs (whether for purpose of trafficking or not) if you do not know that you in fact possess them.  Thus, if a stranger asks you to keep an eye on his suitcase while he runs to a washroom and then a specially trained dog detects that the suitcase contains cocaine, you should not be found guilty of possession of cocaine.  This example, of course, is not meant to encourage anyone in this day and age to do such favours to strangers.

Another scenario involves the degree of control of a vehicle where the drugs are found.  While the driver of such vehicle clearly has control of it, the same considerations do not necessarily apply to a passenger.

Ernst Ashurov-legal advice

Sometimes, the Crown comes to court armed with audio recordings of telephone conversations purporting to prove the drug transactions.  Then it is common to hear evidence from the police officers “interpreting” what certain words or phrases mean in the drug world and the task of the defence counsel is to discredit the police expertise and demonstrate that same words or phrases can have perfectly innocent meaning.

While the drug offences are very complex and often difficult to defend and consequences of conviction may be extremely serious, just because you have been charged with such offence does not mean you are necessarily going to jail, however, it is crucial to entrust your case to experienced drug lawyer to achieve success.

Author: Ernst Ashurov

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