Drug Offences cover a broad range of charges and have a very wide range of sentences. One of the most basic types of drug charge is Simple Possession of Marijuana. The charges become more serious depending on the type of drug and whether the Crown alleges it was possessed for the purpose of trafficking.
There are 5 main drug offences. All amounts and types of drugs involved being equal, the offences are laid out in order of relative seriousness:
Possessing a drug
Possessing a drug for the purpose of trafficking it (selling, giving, distributing, trading, etc.)
Trafficking a drug (selling, trading, giving, distributing, etc.)
Producing a drug (growing, cooking, creating, etc.)
Importing a drug into Canada, or exporting it out of Canada (mailing, transporting, etc.)
If you have been charged with a drug offence, you can expect to be placed on significant restrictions while dealing with the charges. Depending on the seriousness of the charges, it is not uncommon to be placed on curfew and to have no access to cellular telephones.
Defending Drug Offences
It is important to keep in mind that drug prosecutions are often very technical. Just because drugs were involved does not mean a conviction is inevitable. In virtually every case, the drugs have to be sent to a laboratory to establish that it is in fact an illegal substance.
If you were searched, the prosecutor has to prove that the police had the right to search you. In situations where drugs are found in a vehicle, the prosecutor has to prove that you knew about the drugs and that you had possession of them.
If the drugs were found in a house, the prosecutor has to prove that the police had a valid search warrant or other reason to enter the residence. In instances where other people reside in the residence, the prosecutor also has to prove that the drugs were actually yours.
When trafficking charges are involved, the prosecutor also has the further burden of proving that the drugs were in fact being used for trafficking.
Although there are many hurdles for the Crown to overcome, if you are found guilty of the more serious drug offences, jail time is very likely without legal representation. To most effectively assist your case, you should draft a chronology of everything that occurred and have it available during your legal consultation. Focus your written statement primarily on your interactions with the police.
Each offence carries different potential penalties depending on the amount and type of drug involved.
Controlled drugs and substances are organized into groups called “schedules” in the CDSA. They are divided in groups according to their chemical properties and the effects they have when consumed. Below are some of the most common substances in each schedule:
Schedule I: OxyContin, cocaine, morphine, heroin, codeine, GHB (the “date rape” drug), opium
Schedule II: Cannabis and its derivatives (cannabis resin; marijuana)
Schedule III: LSD; psilocybin mushrooms (“magic mushrooms”)
Schedule IV: Barbiturates, including clonazepam, diazepam, Amytal, Nembutal, Seconal, and anabolic steroids
Schedule V: Propylhexedrine and any derived salt
Schedule VI: Substances needed to create other drugs: Ephedrine; lysergic acid; norephedrine; pseudoephedrine; potassium permanganate; red phosphorous; white phosphorous; acetone; ethyl ether; sulphuric acid; toluene.
Drug Possession for Trafficking Offences
In addition to proving that you possessed a certain substance, the Crown must prove that you possessed it for the purpose of trafficking. To support this conclusion, the Judge might consider any of the following factors:
Is the amount of drugs found so large that it is inconsistent with personal use?
Is the substance of high purity or quality?
Is the substance worth a lot of money?
Is it packaged in a way consistent with trafficking (small quantities of similar amount)?
Was it found with items commonly used to traffic drugs (scales, baggies, twist ties, score sheet, etc.)
Was a large amount of money found with the drugs, consistent with prior sales?
Was a debt list or “score sheet” found with the drugs?
There are many different scenarios in which you may find yourself arrested and charged for trafficking; two common scenarios involve the following facts:
A vehicle you are travelling in is pulled over on the highway. The police tell you that the initial reason for the stop is related to traffic safety. They ask you a series of questions, and eventually tell you that they believe you have drugs in the car. They search your car and your person.
The police execute a search warrant on your apartment, house, car, or any other property that you have a right to privacy in. Several police officers armed with heavy weapons thoroughly search your property.
In each of these scenarios, the police have acted in a way that may have breached your rights under the Charter of Rights and Freedoms. Those rights include:
The right to be free from unreasonable search
The right not to be stopped unless there is a good reason
The right to have any search done in a reasonable way
The right not to be questioned until you get the chance to talk to a lawyer
There are severe legal consequences for the prosecution if the police are found to have breached any of your rights.
You may find yourself subject to very strict release conditions. Because drug traffickers are believed to do their business by difficult-to-trace “burner” cellphones, a Judge may prohibit you from owning, using, or possessing a cellphone, an indispensable tool in today’s high-tech society. In addition, you may be ordered to hand in your passport and not leave Alberta.
We can help minimize the strain of your release conditions. In appropriate cases, we can arrange for your conditions to be varied or deleted entirely from the terms of your release, allowing you to carry on a normal life while your case goes through the system.
Defending Drug Possession for Trafficking Purpose Charge
We can assess the police conduct in your case after getting your version of what happened and comparing it with the police reports and notes of what happened. We are skilled at identifying any breaches of your rights and ensuring you get the maximum benefit at the trial of your case. In certain cases, we may get the prosecutor to drop the charges outright, or agree to a less serious charge.
In addition to any breaches of your rights, we will examine all angles of the case to determine whether or not the Crown can prove their case, and we will vigorously attack any weakness we detect.
The potential penalties are much more serious than for a charge of straight possession.
Generally, your sentence will be determined in large part by the amount and type of substance involved. You could get a maximum sentence of LIFE in prison if you are guilty of this offence in relation to:
Marijuana or Cannabis resin (hashish) in an amount over 3 kilograms
In addition, you may be liable to a minimum sentence of one or two years if you used violence, a weapon, got a child involved in the offence, committed the crime near a school, or did it in association with a criminal gang.
You could get a maximum jail term of 5 years less a day if the substance is marijuana or cannabis resin (hashish) in a quantity under 3 kilos.
Your sentence could be as high as 10 years if the offence is in relation to LSD or psilocybin (“magic mushrooms”).
You could get up to 3 years if your offence is in relation to anabolic steroids, barbiturates, including clonazepam, Amytal, Nembutal, diazepam, or Seconal.
Drug Possession Charge
It is an offence to possess any substance in schedule I, II, or III, unless you have an authorization to do so.
The most common items in those schedules are marijuana, hashish, cocaine, morphine, heroin, LSD, oxycodone, GHB, and psilocybin (“magic mushrooms”).
The term “possession” is not limited to personal physical possession. You can be found to be in possession of a substance if:
You knowingly put the substance in the custody or possession of someone else
You are keeping the substance in a certain place for your use or the use of someone else, regardless of whether or not that place belongs to you
Someone else has the substance in their possession with your knowledge and consent
Bail Conditions for Drug Possession Charge
If you have a prior drug conviction of any sort and are charged with possession of a controlled substance, the police and prosecutors will, in virtually all cases, ask the judge to order you be kept in jail until your trial.
Defending Drug Possession Charges
Two common situations in which people find themselves charged with this offence are:
The police pull your vehicle over for a traffic violation, claim to smell a drug, and search you and your vehicle
The police arrest you for a non-drug offence and, while patting you down or searching your clothing or purse, discover alleged drugs on your person
In both of these common scenarios, you have several rights which the police may have violated. We can review all the evidence in your case, along with your description of the incident, to determine:
Are the police being truthful in the reason(s) they give for stopping your car in the first place?
Did they have sufficient grounds to stop your vehicle?
Did they have sufficient grounds to search your vehicle?
Was the original arrest that led up to the search of your person lawful?
Was the search carried out in unreasonable way? (e.g. excessive force or an unjustified strip search)?
Did they question you about whether there were any drugs or contraband on your person or your car before advising you of your right to call a lawyer?
If the police violated your rights, we will work to get you a proper remedy, including the dismissal of the charges.
The potential sentences aside, a conviction for this offence could have serious consequences on your ability to travel outside of Canada. Many countries, including the USA, are extremely wary of permitting convicted drug offenders through their borders. With our high level of expertise, we may be able to arrange an outcome that is unlikely to restrict your ability to travel. Please note that the decision to grant you entry to any given country is in the discretion of the individual border guard.
The range of potential sentences varies with the type and amount of drug you are caught possessing:
Cocaine, heroin, morphine, oxycodone, codeine, GHB (“date rape” drug), opium, etc.: Up to 7 years in jail; up to three years of probation; and/or several thousand dollars of fines
Marijuana over 30 grams or cannabis resin (over 1 gram): maximum of 5 years in jail; fines, and/or up to three years probation
Marijuana (under 30 grams) or cannabis resin (under 1 gram): maximum of 6 months in jail, and/or probation and/ or a fine of up to $2000
LSD, psilocybin (magic mushrooms): a max of 3 years incarceration, and/or fines and/or probation
It is an offence to import into Canada, or export out of Canada, any of the items listed in Schedules I, II, III, IV, V, or VI of the Controlled Drugs and Substances Act. Some of the most common items in those Schedules are as follows:
Schedule I: Codeine, OxyContin, morphine, heroin, and cocaine
Schedule II: Cannabis marihuana and cannabis resin (hashish) and any other derivatives
Schedule III: psilocybin (the active ingredient in “magic mushrooms”), and LSD
Schedule IV: Barbiturates, the most common of which include Amytal, clonazepam, diazepram, Nembutal, and anabolic steroids
Schedule V: Any derivatives of propylhexedrine
Schedule VI: Substances commonly used in the production of other drugs: Lysergic acid; norephedrine; ephedrine; potassium permanganate; acetone; red phosphorous; pseudoephedrine; white phosphorous; toluene
“Importing” means to bring into the country, or cause it to be brought into the country.
An accused does not have to have personally brought the items into Canada before being convicted of this charge.
This charge requires the Crown to prove that you actually knew, or were deliberately blind to, the presence of the drugs.
Production of a controlled substance
It is a crime to produce any of the substances included in Schedule I, II, III, or IV of the CDSA.
To “produce” means to obtain a substance by any process or method, and includes:
Synthesizing, manufacturing, or using any method in order to alter the physical or chemical qualities of a substance
Harvesting, cultivating, or growing the substance or any living organism that the substance can be derived or extracted from
Due to the large quantities of alleged controlled substances usually involved, and the seriousness of these charges, the potential sanctions are high.
For Schedule I or II substances, the maximum period of jail possible is LIFE
For Schedule III or VI substances, the maximum jail sentence is 10 years
For Schedule IV or V substances, the max sentence is 3 years in jail
You also face a minimum punishment if you commit any of the above offences for the purpose of trafficking or breach a position of trust or authority, or if the substance is in schedule I and in an amount more than 1 kilogram.
For Schedule I substances, the maximum period of jail possible is LIFE. You can received a minimum of 3 years of you produce a schedule I substance in excess of a certain amount.
For Schedule II substances, the maximum period of jail possible is LIFE. You may also be exposed to a minimum of between 1 and 3 years, depending factors including the specific substance, the amount or number of plants produced, and whether your operation created a health, safety, or security hazard in the community.
For a Schedule III substance, you face a maximum penalty of 10 years
For Schedule IV production carries a maximum of 3 years in jail
You can received a minimum of 3 years if you produce a schedule I substance in excess of a certain amount.
Drug Trafficking Offence
“Trafficking” has a very broad definition in the context of offences under the CDSA. Its legal definition includes the following activities:
The Crown does not necessarily need to prove that the substance in question was in fact a drug. If you hold out or represent any substance as a drug, that can be enough to convict you of trafficking in that drug.
Additionally, the Crown does not need to prove that you made a profit from the act. And giving a controlled substance away for free falls under the definition of this offence.
The investigation of your case will likely involve experienced police officers, whose mistakes may not be immediately apparent to someone with no legal training.
Bail Conditions for Drug Trafficking Charge
Getting bail for this charge is very difficult. Depending on the amount and type of substance you are accused of trafficking, the onus may be on you to show the judge that you are not a danger to continue trafficking if you are released (this is called a “reverse onus provision”).
If you are released, You will likely be required to follow strict conditions, including an order prohibiting you from possessing a cellular phone. You may also be prohibited from leaving Alberta, and be forced to turn in your passport to ensure you do not flee the country.
Defending Drug Trafficking Charge
Trafficking charges arise in a variety of different ways, but two common scenarios include the following:
The police receive an anonymous tip that you are selling drugs. They assign a group of undercover police officers to secretly watch your house and follow you from place to place for several hours each day, for several days or weeks. Eventually, they see what they believe is you making a drug transaction and arrest you immediately after the alleged transaction.
This first scenario raises the following legal issues that we will investigate thoroughly on your behalf. What is the source of the anonymous tip? Is that person reliable or unreliable? Does that person have any run-ins with the police previously, and did they have improper motives in bringing you to the attention of the police? What was the type, and value of the information the police had before they arrested you?
The police set up a “sting” operation in an area of the city where they believe drug dealing activity is going on. Undercover police approach you or contact you by phone and attempt to arrange a sale of drugs. Eventually, you are alleged to have sold drugs to an undercover police officer.
This scenario engages a legal issue called “entrapment”. If the police are found to have “entrapped” or improperly enticed you into selling them drugs, it could result in your charges being resolved in your favour. The police are forbidden from randomly testing citizens to see if they can be persuaded into committing a crime. However, if the police have sufficient reason to believe you, or a certain place, is associated with criminal activity, they may be permitted to try to encourage the commission of a crime.
Determining whether the police entrapped you requires a careful assessment of all the evidence, and applying a complex legal standard. We are very familiar with this police tactic and can identify those cases where the police acted improperly.
The Crown Prosecutor asks the Judge to send you to jail in all but the least serious cases. Therefore, it is vital you have a dedicated lawyer by your side to put your best foot forward at this critical point in your case.
If you are found guilty of this offence, your sentence will be determined in large part by:
What type of substance you were found guilty of trafficking;
The amount of substances that was trafficked;
The number of drug deals you were involved in;
Whether you dealt the drugs to
Who you dealt the drugs to.
You could get a LIFE SENTENCE if the substance you trafficked was:
Marijuana or Cannabis resin (hashish) in an amount over 3 kilograms
In addition, if you could be subject to a mandatory minimum minimum sentence of 1 or 2 years if your offence involved the use of violence or a weapon, a child, a criminal gang, or was omitted near a school, public park or any other place children are commonly found.
You could get up to 5 years less a day in jail if the drug involved the trafficking of marijuana or cannabis resin (hashish) in an amount under 3 kilograms.
You could get as much as 10 years in jail if you trafficked LSD or psilocybin (the active ingredient in “magic mushrooms”).
You may spend up to 3 years in prison if the trafficked substance was to anabolic steroids, clonazepam, Nembutal, Seconal, Amytal, diazepam, or another barbiturate.