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Drug Possession Lawyer

Drug Possession Lawyer

There is no such thing as a “minor” drug charge. Despite recent talk of liberalizing marijuana laws, drugs are illegal in Canada. Drug charges are investigated by specialized police units and prosecuted by specialized teams of federal prosecutors, different from the more common provincial Crown attorneys. Convictions for drug offences result in serious consequences, including jail, restrictions on entering the U.S., as well as creating serious difficulties for immigration status, post-secondary education, and future employment. Even the smallest drug charge must be handled carefully to avoid these consequences. To defend you, you will need a lawyer with the skills and experience to make sure that your future is not limited because of a drug arrest. At the Defence Group, we have lawyers who have were federal drug prosecutors before becoming defence lawyers, so we know how to prepare the best defence for your case.

Drugs, known as “controlled substances”, are classified according to how seriously the government views them. Schedule 1 contains the most serious drugs, namely cocaine and heroin. Marijuana and its derivatives, such as hashish and oil, are listed in Schedule 2, and classified by weight. So-called “designer drugs” such as LSD, amphetamines, and ecstasy are listed under Schedule 3.The most common drug offences are possession and trafficking, as well as possession for the purpose of trafficking. Cultivation of marijuana, known as “grow-ops” are also an increasingly frequent offence being targeted for investigation and tougher prosecution. Importing drugs is a specialized issue at border crossings and at airports.

There are major differences in the way these offences are treated by police, prosecutors and the courts, depending on the nature of the drug, and whether it is for personal use or sold for profit. While there is some leniency when it comes to small amounts of marijuana for personal use, if marijuana is seized in school or packaged for sale, it will attract harsh penalties. Hard drugs, or commercial quantities of recreational drugs, are zealously investigated and prosecuted because of their association with organized crime, and because Canada is signatory to a number of UN and other international conventions on the interdiction of drugs and narcotics. As a neighbor to the United States, Canada is required to take an aggressive stand in the “war on drugs”.

What Does “Possession” of Drugs Mean?

Possession of drugs does not necessarily mean actual physical possession; there are other forms of legal possession, including “constructive possession” or “joint possession”. The legal requirements are some element of knowledge, and control. You can be found to be in possession when another person has physical custody; when they are in a place that you occupy or have some measure control over; or when other people have the control, with your knowledge and consent.

The Criminal Code definition of possession is as follows:

4. Possession

(3) For the purposes of this Act,

  • (a) a person has anything in possession when he has it in his personal possession or knowingly
    • (i) has it in the actual possession or custody of another person, or
    • (ii) has it in any place, whether or not that place belongs to or is occupied by him, for the use or benefit of himself or of another person; and

where one of two or more persons, with the knowledge and consent of the rest, has anything in his custody or possession, it shall be deemed to be in the custody and possession of each and all of them.

Trafficking

There are many ways that drugs can be bought, sold, or distributed. Trafficking means that drugs are being sold, transported or distributed. The police have an arsenal of tactics and techniques to build a case against a suspected drug trafficker is through a combination of surveillance, confidential informants, undercover police officers or civilian police agents, or in bigger cases, through “controlled deliveries” and the use of judicially-authorized wiretaps.

The Controlled Drugs and Substances Act (CDSA) defines trafficking as follows:

  • (1) “traffic” means, in respect of a substance included in any of Schedules I to IV,
    • (a) to sell, administer, give, transfer, transport, send or deliver the substance,
    • (b) to sell an authorization to obtain the substance, or
    • (c) to offer to do anything mentioned in paragraph (a) or (b),
      otherwise than under the authority of the regulations.

Possession for the Purpose of Trafficking

If you are found to be in possession of drugs (whether in actual possession or in joint or constructive possession), the legal question then becomes whether the drugs were for personal use or to be sold for profit. The commercial sale of drugs is a highly aggravating factor which results in significant jail terms, and the police and prosecutors are always looking for ways to turn what might otherwise be simple recreational drug use into a much more serious case of an illegal commercial enterprise.

The determination of whether a quantity of seized drugs is for personal use or for trafficking can be complex, and depends on an examination of all of the surrounding circumstances, including the nature and quantity of drugs; packaging and presentation, including any sub-division; presence of cash, debt lists or paraphernalia, including scales, cutting agents, and tools; wiretaps; surveillance; informants and civilian agents.

Production of a Controlled Substance

A fast-growing area for law enforcement and prosecution is the production of controlled substances, which includes everything from “meth labs” to the manufacturing of ecstasy and the cultivation of marijuana in “grow-ops” all over the province. Particularly in the case of the marijuana grow-ops, the government has increased its enforcement provisions and penalties. The public, the media, and the real estate industry have led the outcry against residential homes being used to cultivate marijuana. In the past, run-of-the-mill courthouse lawyers would routinely negotiate plea-bargains with the Crown in return for a fine and forfeiture of the hydroponic equipment. Nowadays, jail time is the norm, not the exception, for cultivation- even for people who are merely caretakers or “gardeners”.

The Controlled Drugs and Substances Act (CDSA) defines production as follows:

  • 2 (1) “produce” means, in respect of a substance included in any of Schedules I to IV, to obtain the substance by any method or process including
    • (a) manufacturing, synthesizing or using any means of altering the chemical or physical properties of the substance, or
    • (b) cultivating, propagating or harvesting the substance or any living thing from which the substance may be extracted or otherwise obtained, and includes offer to produce;

Importing a Controlled Substance

Importing drugs into Canada is one of the most serious offences known to Canadian law. A conviction for importing carries penalties that can be as severe as those for homicide; a lengthy jail term is virtually a certainty, often in the federal penitentiary.

Importing occurs in a variety of ways, from bodypacking to swallowing drug-filled condoms, to mailing parcels or transporting over land, air or water.

These investigations usually involve customs officers from the Canadian Border Services Agency (CBSA), who follow slightly different policies and laws than the police. Given the severity of these criminal cases, and their specialized nature, you should make sure that you hire a criminal defence lawyer with experience in these cases. At The Defence Group, both Arun S. Maini and Shannon B. McPherson have spent years as federal prosecutors, working with the Drug Enforcement Unit at Pearson International Airport, and have handled hundreds of these cases. They are available to defend you with all of the knowledge, experience and contacts developed from their experience with the government.

Other Law Enforcement Techniques

Conspiracy

A conspiracy is an agreement between two or more people to commit an illegal act. Because drug enterprises require communication and agreement between individuals, conspiracy charges are a commonly used method for police and law enforcement to ensnare many people, sometimes entire networks, in large-scale, long-term “projects” designed to apprehend and dismantle organized crime.

Conspiracy charges are among the most complex in criminal law. Large amounts of money and drugs are usually involved, as well as huge teams of police and prosecutors. Several people are facing charges at the same time, sometimes dozens of people. Wiretaps, search warrants and forfeiture applications are routine in these cases. There are many specialized rules and interpretations, such as the “co-conspirators’ exception to the hearsay rule”, and police officers, lawyers, or even judges sometimes have difficulty understanding them or applying them correctly. For this reason, you need a lawyer with the skills and experience to handle a conspiracy case properly. At The Defence Group, we have lawyers who are former federal prosecutors. There is no one better to defend a case than someone who has been on the other side.

Wiretaps

In recent years, police have received greater funding to combat organized crime, and wiretap authorizations have become more commonplace. There is nothing more effective in court than for a prosecutor to introduce your own words or those of your accomplices against you to prove that you are engaged in the sale or importing of drugs or controlled substances. Wiretaps can intercept your telephone, your cellphone, and yes, even email and text messages. Police also have the power to install listening devices in your room or your car in order to build a case against you.

Often, the difference between a conviction and an acquittal comes down to whether wiretap intercepts are allowed into evidence. Wiretap authorizations are extremely complex, with the documents running hundreds of pages. Such complexity creates opportunities to challenge the admissibility of this powerful evidence. Also, because the state’s interception of your personal communications is such a significant invasion of privacy, and there are many gray areas between permissible police investigation and a constitutional violation, there is an enormous body of case law about where to draw the line. It takes an experienced lawyer to interpret these laws and regulations to make sure that your rights are respected and that you are not convicted because of evidence that was illegally or improperly obtained. At The Defence Group, we have years of experience prosecuting and defending wiretap cases and are in the best position to help you deal with such difficult matters.

Search Warrants

One of the most powerful tools at the disposal of the police is their ability to enter your home, place of business, car, or anywhere else where you have an expectation of privacy. Once they enter, they have the power to search and seize anything they deem to be relevant to their investigation. The police even have the power to seize samples of your blood, fingerprints or DNA to build a case against you.

To be able to deploy such a powerful tool, the police must comply with certain rules developed by Parliament and the courts to protect your privacy interest. In addition, section 8 of the Charter of Rights and Freedoms protects you against unreasonable search and seizure. Before they can search your property, the police must apply to a judge or justice of the peace for a search warrant. A sworn affidavit must be filed with court setting out all of the particulars relevant to the court’s decision to grant a search warrant. If any of the details are missing, incorrect, or misleading, the search warrant and the evidence derived from it could be thrown out. For that reason, the affidavit in support of the search warrant is often subject to a sealing order, so that the defence cannot access it unless an application is brought by the court for an unsealing order.

At The Defence Group, we can help you with all aspects of search warrants, including before, during and after police show up with a warrant. We will bring an application to unseal the warrant, and analyze all of the information to determine the best strategy for challenging the case, the evidence, and even the warrant itself. Often, the Crown’s entire case will rest on the evidence seized by police during a search; therefore, if the warrant is thrown out, or the search is deemed unconstitutional, the case might be won right at the outset of the trial.

Forfeiture/Proceeds of Crime

One area of law enforcement that has become much more commonplace recently is the government’s strategy of seizing assets that they believe to be proceeds of criminal activity. For example, if drugs are found in the trunk of your car or in the cargo hold of your transport truck, they can seize the vehicle. If drugs are stored in your house, they can seize your house. If you have cash in the bank or investment accounts that the government claims must have been earned from illegal activity such as drug trafficking, they can seize your money also. This tactic is a very powerful tool, because it is designed to hurt the target where it really counts: in the pocketbook. If your assets are seized or frozen, then you cannot pay your mortgage, afford to hire a lawyer, or put up bail money.

Worse, once the state has seized or frozen the property, they will seek a court order forfeiting the property to the government; and the standard for such an application, in the case of a civil forfeiture, is lower than it is to prove the criminal case against you. In other words, you can win your case and still lose your assets!

The forfeiture provisions are complex and often misinterpreted or misunderstood. At The Defence Group, we have lawyers who worked on the government side of these cases, and have the knowledge and experience to defend them fully so that you can get your property back. We can also bring applications for interim orders for you to access funds to hire a lawyer or to pay your mortgage so that the bank does not foreclose on your house

Confidential Informants

Police will often use information from informants to build a case against a target in a drug investigation. Search warrants or wiretap authorizations are often based on what they tell their police handlers. Informants are dangerous because their identity is protected by the law and never revealed, which makes it very difficult to challenge the information they have provided to police. Informants often lie or exaggerate, and they have their own agenda; often they something to gain by providing information, such as a break on their own criminal case; money; or the elimination of a rival. It takes a great deal of finesse and a sophisticated knowledge of this area of the law because the Crown and the courts are very reluctant to permit the disclosure of any evidence or permit any questioning that could remotely come close to exposing the informant’s identity. Yet if the information can be shown to be unreliable, or challenged so that it must be removed from consideration in the case, or in the search warrant or wiretap authorization, it can spell the end of the Crown’s case.

Only a lawyer with the experience in dealing with challenges to confidential informants should be entrusted with your case in such a situation. At The Defence Group, we have the knowledge and skill to prepare and carry out an effective attack on the informants’ privilege.

A Note on the Charter of Rights and Freedoms

Drug transactions occur in secret, because they are illegal. Drug investigations, therefore, require the police to enter into the private space of their targets to seize evidence. Police gather evidence through surveillance, wiretaps, informants, undercover operations, search warrants, and civilian agents. In utilizing these techniques, police are often treading the line between what is legally justifiable and what constitutes an invasion of the target’s reasonable expectation of privacy. Drug cases often stand or fall based on the courts’ assessment of police conduct, and applications to exclude evidence or seek a stay of proceedings often form part of the strategy that we at The Defence Group will use to win the case.

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