Convictions for drug offences are serious. They can prevent individuals from travelling to some countries. The United States, in particular, has a very strong policy of barring anyone with a drug conviction from entering their country. Mulligan Tam Pearson defends individuals facing charges ranging from possession of small amounts of marijuana to complicated heroin conspiracies.
If an accused individual’s rights have been breached during a police investigation, the courts will sometimes exclude evidence that was improperly obtained by the police. Defending clients who have been charged with drug offences requires an in-depth, up-to-date knowledge of the law and a sharp eye for detail.
Is marijuana (pot or cannabis) now legal in Canada?
No. There was some political discussion concerning the merits of decriminalizing the possession of marijuana in Canada, however, no legislative changes were made. Possession of marijuana, even for personal use, remains illegal.
Is marijuana (pot or cannabis) available in Canada for medical purposes?
In limited circumstances, a person can apply for a licence to produce or possess marijuana for medical purposes in Canada. This is a link to the Health Canada site that sets out the application process: http://www.hc-sc.gc.ca/dhp-mps/marihuana/index-eng.php
What kind of drug offences are there in Canada?
The Controlled Drugs and Substances Act creates offences for the possession, production, trafficking, possession for the purposes of trafficking, importing and exporting of a long list of substances.
Are there any other consequences of a drug conviction?
Yes. In addition to the penalties imposed by a court upon conviction, there are a number of other long term consequences that should be considered. These involve the probability of a criminal record that can impact on, amongst other things, your ability to travel and obtain employment.
Will I be prohibited from traveling if I am convicted of a drug offence?
In some cases, the penalties imposed by a court, such as the terms of a probation or conditional sentence order, may prohibit a person from traveling for a period of time. However, in virtually all cases, the longer term concern would be your ability to enter another country. Every country is free to set whatever rules it wishes in terms of who they will allow to visit. Canada shares with some countries, but not others, access to a database that lists criminal convictions. Canada does, for example, share access to the database with the United States. In most cases, a drug conviction in Canada would make a person ineligible to enter the United States indefinitely.
Are the penalties for possession of different drugs different?
Yes. The Controlled Drugs and Substances Act has a number of schedules which list different prohibited drugs and substances. For example, opium and cocaine are listed in Schedule One while marihuana is listed in Schedule Two. The maximum penalties for offences related to drugs or substances in different schedules are different.
Are there any other consequences that can flow from a drug conviction?
Yes. In addition to the penalties imposed by a court, and the impact on your capacity to travel or obtain employment, there are now various “civil forfeiture” provisions which may apply. Civil forfeiture (government seizure of money and property) can occur even if you have not been charged or convicted of a criminal offence. For example, in British Columbia, the provincial government can seek forfeiture of “instruments of unlawful activity” or “proceeds of unlawful activity.” In the drug context, this could include, for example, a house being used to grow marijuana, a car being used to transport drugs, or money on your person or in the bank if it could be established on a balance of probabilities that it was the proceeds of unlawful activity. The possibility of property being forfeited should be considered carefully when deciding how to deal with a drug offence.
What is possession?
Possession, as a legal concept, includes more than physically holding something. A person can be found to be in possession of drugs if they have knowledge and control of the drugs in question. For example, if you put drugs in a drawer in your house, you would remain in possession of them despite the fact that you are not currently holding them in your hand. You would know the drugs were in the drawer because you put them there and would have the ability to exercise some control over them as they are in your house. On the other hand, if someone else put the drugs in the drawer without your knowledge, you would not be in legal possession of them even though they are in your house.
Can more than one person be in possession of something?
Yes. If more than one person has knowledge of, and some capacity to control, a controlled drug or substance, they would each be in possession of it.
What is the standard of proof in a drug case?
Like in any criminal case, the Crown would need to prove, beyond a reasonable doubt, all of the elements of a drug case. You also have the right to remain silent and are not required to testify in court if you do not wish to.
What is trafficking?
In the drug charge context, trafficking includes giving a controlled drug or substance, or anything stated to be a controlled drug or substances, to anyone else. It does not require there to be an exchange of money and it does not even need to be a controlled drug or substance if an item is held out to be such. We have even seen cases where clients have been charged with trafficking in marijuana for passing a marijuana pipe to others to share.
What is possession for the purpose of trafficking?
Possession for the purpose of trafficking involves someone being in possession of a controlled drug or substance for the purpose of trafficking (giving or selling) it to someone else.
Are the police allowed to search me or my homes for drugs whenever they like?
No. In Canada, people have the right to be free from unreasonable search and seizure. In fact, one of the most common issues in drug cases is whether the police were permitted to search for drugs in the circumstances of the case. The starting point is that police are not permitted to search a person or anywhere else you would have a reasonable expectation of privacy, unless they have prior judicial authorization – a warrant. There are other circumstances in which the police would have authority to conduct a search such as in the course of a lawful arrest. The lawfulness of a search and seizure is one of the important assessments a lawyer will make to give you advice with respect to a drug related charge.
What is production of a controlled drug or substance?
Production of a controlled drug or substance involves doing anything for the purpose of producing it. In the context of marijuana, for example, it would be growing the marijuana. In the context of drugs such as MDMA (ecstasy) or GHB it would include anything involved with their manufacture.
The police came into my house with a warrant for theft of electricity and located marijuana, is that allowed?
It depends. In order to obtain a warrant, the police would need to satisfy a judge or justice of the peace that they had reasonable grounds to believe there was evidence of an offence, in a place, at the time they wish to conduct a search. If the police are able to obtain a warrant to search for evidence of electricity being stolen and, in the process of conducting the search, come across evidence of other unlawful activity in plain sight they would be permitted to seize that as well.
What is an “Information to Obtain” a search warrant or “ITO”?
In order to obtain a warrant to conduct a search, a police officer needs to set out, in writing and under oath, the reasons he or she believes there is evidence of an offence in a place at the time they wish to conduct the search. This written request for a warrant is referred to as an “information to obtain” a search warrant or ITO.
If the police had a warrant to conduct a search, does that mean the search was lawful?
Not necessarily. There are a number of legal requirements to obtain a search warrant including an obligation on the police officer to be both honest and to provide full and frank disclosure when applying for a search warrant. Full and frank disclosure requires the police to set out in an ITO not only facts that would support their application but those that would militate against a search warrant being issued. At a trial, a judge can review the warrant and ITO to determine whether the warrant should have been issued in the first place.
How does the Crown prove whether a substance is a controlled drug or substance?
Typically, the Crown will rely on a Certificate of an Analyst. The police will usually send a sample of the substance in question to a lab for analysis and a qualified analyst at the lab will produce a report called a “Certificate of an Analyst” setting out the results of their analysis. Subject to a number of technical requirements, and subject to an application to cross examine the technician who conducted the analysis, the Certificate of an Analyst would be used in court to establish what a substance is. Because there are dozens of substances listed by their precise chemical names in the schedules to the Controlled Drugs and Substances Act, the exact nature of a substance alleged to be in the list can sometimes be a real issue.