Drug charges, depending on the type and quantity, can result in serious problems for an individual found to be in possession. If you are being investigated for a drug offense, you have the right under the Canadian Charter of Rights and Freedoms to contact legal counsel before police begin to interrogate you. It is important to exercise this right as soon as practicable.
The Controlled Drugs and Substances Act (“Act”) is the governing legislation for drug offences in Canada. There are several types of drug offences under the Act. Some of these include: possession, trafficking, and possession for the purpose of trafficking, importing and exporting.
Possession is the simplest of the drug offences and is governed by section 4(3)(a) of the Criminal Code. Possession will occur when an individual is found to have knowledge, control, and have manually handled the controlled substance. This means that simply being found with a controlled substance is not sufficient to establish possession under the Act. You must have knowingly possessed the substance and had some degree of control over it. However, it is important to understand that an individual can be found guilty of possession even if they don’t have the substance on their immediate person. Under the doctrine of constructive possession, an individual “possesses” a substance if they have it stored in a place where they had knowledge and control of the environment.
Trafficking is defined under section 5(1) of the Act. The term “traffic” is broadly defined and can include: selling, administering, giving, transferring, sending and transporting, among several others. “Selling” will occur where a controlled substance is exchanged for money or some other type of consideration. “Selling” is typically the most prevalent form of trafficking because most trafficking offences occur through drug transactions. The terms “giving,” “transferring,” “sending,” and “transporting” all have similar definitions albeit important distinctions. As suggested by its name, “giving” will occur when an individual gratuitously bestows a controlled substance on another person. “Transferring” is a rare offence and will occur usually where there is a transfer of ownership, but no physical transfer of the controlled substance. It is also an offense to sell a medical authorization in Canada. Here, an individual will approach a licenced physician and attempt to buy prescriptions for a controlled substance.
Importing and exporting are self-explanatory offences and are defined under section 6(1) of the Act. Importing will be completed as soon as an individual knowingly brings a controlled substance into the country. Similarly, exporting will be completed as soon as an individual causes a controlled substance to leave Canada.
Often, people involved in the exporting or importing of drugs may also be involved in the production of controlled substances. The production of controlled substances is prohibited under section 7(1) of the CDSA. Production of a substance has several essential elements. These elements are not mutually exclusive and include manufacturing, synthesizing or using any means of altering the hemical or properties of a substance. Further, cultivating, propagating or harvesting the prohibited substance will also satisfy the conditions under section 7(1). This offence usually involves home-based labs or grow-operations.
All of these offences are serious and can carry terms of imprisonment. For this reason, it is important to seek legal counsel if you find yourself being investigated for one of these offences.
For every drug offence charged, there is usually a defence. For this reason, a lawyer can be an invaluable resource in helping to defend your rights and keep you out of prison.
Among the defences available for drug offenses, there are several notable examples. These include the “agent defence,” entrapment, duress and necessity.
The “agent for the purchaser” defence is a defence that may be difficult to assert, but can be very effective at absolving an accused of criminal liability. Picture the following scenario. Your friend Phil asks you to take him for a drive and to stop at a fellow’s house with whom you aren’t acquainted. Phil enters the home and returns several minutes later to the car and the two of you drive off. Unbeknownst to you, Phil picked up several grams of cocaine and ecstasy. When the police discover the drugs, should you be held liable for possession as well? This defence would allow your lawyer to argue that you were simply an “agent” who was assisting Phil. Accordingly, you shouldn’t be held liable.
Entrapment is another defence which was created by common law. The doctrine of entrapment essentially states that it is completely unacceptable for police to encourage or create crime. People have enough temptation in life; the government shouldn’t be involved in pushing people into crime! Under this doctrine, the police can never:
provide someone with an opportunity to commit a crime without acting on a reasonable suspicion that the person was already engaged in criminal activity, or pursuant to a bona fide inquiry
go beyond providing the individual with an opportunity, and actual induce the commission of an offence.
The case of Mack is a perfect of example of police going beyond the scope of their powers to actually induce the commission of an offence. In that case, a police informant pressured the accused to sell them drugs. At first, the accused refused. After the informant pressured the accused, he delivered the drugs. On appeal, the Court held that this was entrapment and quashed the accused’s conviction.
Lastly, necessity and duress are very similar defences, albeit involving different pressures on the accused. To prove duress, the accused must show that there was a serious threat of harm, no safe avenue of escape, and the crime committed must be proportional to harm threatened. A good example of duress would be if a terrorist organization kidnapped a family member of the accused and threatened to injure or kill them if the accused did not deliver drugs. Here, the accused would likely be excused for their crime because it was committed out of duress. Similarly, necessity would excuse an accused’s criminal actions. Necessity is a much rarer defence then duress when it comes to drug offences because the serious threat of harm must come from an external force, i.e. nature. The Courts are generally reluctant to allow this defence for drug offences because it probably isn’t plausible that an accused was involved in the drug trade because of, say, a tornado or a hurricane. This defence is more likely to be successful in a murder case, where the accused committed homicide for self-preservation.
As noted earlier, drug offences can produce very serious consequences if an individual is charged. There are many ways a charge can be laid, and equally, there are many ways to defend against a drug charge. For this reason, it is important to have an experienced criminal defence lawyer who will make sure your rights are protected.