Recent news headlines on drugs have been split between the Liberal government’s promise to legalize marijuana and the wave of drug overdoses related to fentanyl use.
These issues, despite their many facets, are surprisingly straightforward when compared to complex drug investigations and take-downs that also grace the front page of the Toronto Star. Drugs are a part of everyday news, and permeate pop culture. Few issues in criminal law are as contentious as drugs. Many commentators do not see the point in the criminalization of drug use, while others believe illegal narcotics to be a scourge upon our society.
Regardless of where one falls on that spectrum, there is value in understanding how the system works in the prosecution of drug offences, and the necessity of retaining an experienced criminal defence lawyer if one is charged with such offences.
Drug Regulation in Canada
Drug charges are regulated under the Controlled Drugs and Substances Act (CDSA) as opposed to under the Criminal Code of Canada. The CDSA prohibits possession, possession for the purpose of trafficking, trafficking, importing/exporting, and production of a lengthy list of substances.
The CDSA also includes procedural considerations which establish a reverse-onus bail hearing for drug offences punishable by a maximum sentence of life, as well as the possibility of a forfeiture order in relation to “offence related property”.
Under the CDSA drugs are classified by “schedules”, which largely depends on their potency and inherent risks. Schedule I includes, but is not limited to: cocaine, fentanyl, methamphetamines, and heroin. Due to the danger associated with the drugs listed in Schedule I, charges under this section come with strict punishments and generally lead to the longest sentences. Schedule II includes marijuana and its derivatives. Schedule II drugs typically carry lighter sentences, with simple possession charges usually being summarily prosecuted. Schedule III includes drugs such as LSD, DMT and psilocybin. For a full list of substances and Schedules, see the CDSA at laws-lois.justice.gc.ca.
The CDSA also outlines sentencing ranges for offences committed under the Act. These include mandatory minimum sentences, which came into force in November of 2012. While some mandatory minimums have been found to be constitutionally unacceptable, such as for production of marijuana and for trafficking cocaine or possessing cocaine for the purpose of trafficking in a public place usually frequented by children, there are still many areas where mandatory minimums have not been successfully challenged. Mandatory minimum sentences are in place for trafficking, possession for the purpose of trafficking, production, and importing/exporting offences. Their length depends largely on features considered aggravating by the Crown, such as: association with a criminal organization, weapons, violence threatened or actual, previous convictions, commission of the offence on prison grounds, and use of children to commit an offence.
The Liberal government has been discussing reforming or removing the Mandatory Minimum Sentencing regimes set in place under the last government. It remains to be seen if this sensible but likely politically unpopular action will be taken to remove mandatory minimum sentences.
Why you need a lawyer for drug charges
It is important that a person charged with a drug offence under the CDSA seeks experienced and competent legal representation. These can be very technically complex charges. It is necessary that counsel have the ability to:
- Assess the strengths and weaknesses of your case
- Explain the available defences
- Protect your rights and ability to defend your case
- Negotiate with the Crown Attorney where appropriate
- Fight the charges effectively at trial
Defending a criminal charge involves knowledge of both your constitutional rights, and the rules of evidence and criminal trial procedure.
Your rights: warrants, search and seizure, police conduct
In Canada, rights are guaranteed by the Canadian Charter of Rights and Freedoms. This protects citizens from unlawful search and seizure and ensures the right to a fair trial. This extends to mean the police cannot enter your home without a warrant (unless there is informed consent or exigent circumstances). Understanding how these rights work in real life application requires not only legal knowledge, but also experience.
Your lawyer can assess potential Charter violations and make determinations about whether or not the crown can prove the offences. Many people do not realize that it is often very difficult to prove possession in drug cases.
Counsel must be able to analyze any documentation that underlies searches or interception of communications. An Information to Obtain (ITO), is a document that must be sworn before either a warrant to intercept communications (aka wire taps) or a search warrant for your home can be issued. An experienced lawyer will be able to see if the ITO was based on credible information and will be able to determine if arguments exist to exclude evidence.
There are also important legal concepts that determine how charges must be proved, including, or rules relating to expert witnesses, statutory notice requirements, and technical elements of charges such as possession. Experienced legal expertise is invaluable. With the right defence lawyer, depending on your charge, you may be able to avoid a criminal record that will follow you for your entire life. A criminal record that could restrict your travel and future job opportunities.
Experience means a great deal in and out of the courtroom. For less serious charges, in exchange for commitment to drug therapy, volunteer hours, and other such guarantees, there may be some room to negotiate a resolution with the Crown that does not involve a criminal record. An experienced defence lawyer conducting negotiations with the Crown attorney will increase the chance of receiving the best result possible.
Drug offences are prosecuted very seriously
There may be some controversy over the prosecution of minor drug possession charges for Schedule II drugs, namely marijuana. Many cities have noticed increasing numbers of “pot shops” opening, only to be raided by police and closed down shortly thereafter.
The fact remains that marijuana is currently illegal and the possession and sale of marijuana is a criminal offence. In fact, Public Safety Minister Ralph Goodale has recently indicated that the Federal Government has no plan to introduce general amnesty for past marijuana convictions. This means that the consequences of a conviction will continue, even long after the crime no longer exists. Until marijuana is legalized, the raids and arrests of those attempting to gain a foothold in what may be a lucrative industry will continue. After legalization (if this happens), you can expect that prosecutions of producers, importers, and traffickers will continue.
Other criminal offences often accompany drug offences, such as violence, theft, and firearms possession. Many of these are already noted aggravating factors in relation to sentencing. With each additional offence, the complexity of the matter increases, as does the penalty. It is especially important to have excellent defence representation If the ongoing investigation is a large project involving many individuals, drugs, and multiple law enforcement agencies. There is a strong likelihood you may be facing charges that apply to you because you have been classed with individuals you barely know, or have never even met. There also may be the issue of a girlfriend, boyfriend, roommate or loved one being charged in addition to the accused, regardless of whether they had any involvement. Certain charges can be dropped or minimized if adequate evidence can be presented against the charges or if the defendant pleads down some of the charges in order to expedite the trial process. These are all tactics that an experienced defence lawyer can bring to the table on your behalf.
Although the legal stance of marijuana may change over the course of time, it is unlikely that the outlook on more serious drugs will ever soften. If you are charged with any drug offence, contact Adam Weisberg to discuss your case and determine the best defence. As a seasoned Toronto criminal lawyer, Mr. Weisberg has significant experience in dealing with drug charges, from possession of a small quantity of marijuana for personal use to large-scale cocaine importing and trafficking operations. Mr. Weisberg is a tireless, effective, and creative advocate, from who you can expect an honest and straightforward assessment of the case you are facing.