There are many different drug offences an individual can be charged with. Depending on the type of drug, the amount seized, and why the individual possessed it, will affect the potential consequences.
Though still illegal in Canada, a person charged with possession of marijuana will often be given the opportunity to provide back to community in the form of a donation to charity or community service in exchange for the withdrawal of charges. This is not automatic and is at the discretion of the Department of Public Prosecutions Crown Attorney.
Diversion is not often offered to people charged with possession for the purpose of trafficking marijuana or trafficking of marijuana. See below for definitions of these two types of charges)
Cocaine, Ecstasy, Heroin, Ketamine
These are considered in Canada to be more serious drugs that carry with it increased consequences. The likelihood of a withdrawal in exchange for diversion methods is lesser in these cases. This is why you should consult with a lawyer to determine if this is possible. Click HERE to contact Jeff Hershberg for a free consultation.
Possession, Possession for the Purpose of Trafficking and Trafficking offences
To prove possession, the Crown must prove that the item seized was in fact an illegal drug as defined by the Controlled Drugs and Substances Act. To do this they will have the item tested in a lab by Health Canada.
The Crown must also prove that the individual charged had control of the item seized and had knowledge that the item was an illegal drug. This is not always as easy to prove as it sounds. For this reason you should consult a lawyer to discuss your case.
To prove that the item was for the purpose of trafficking, the Crown must not only prove that the person had some type of possession of the illegal drug but that he or she possessed the drug with the intention to sell or give it to someone else.
To determine whether the illegal drug was for the purpose of trafficking, there are a number of factors the Court will consider including (but not limited to):
i. the quantity of the drugs seized
ii. the manner in which the drugs are stored (in individual bags for single uses or in a large quantity)
iii. if any money was found and how much money was found
iv. if any drug paraphernalia was found (i.e. scales, pipes, etc..)
v.unexplained wealth (if the person has thousands of dollars but is on social assistance)
vi. presence of other individuals who are known drug users or sellers
vii.any statements made by the person being charged or other individuals
viii. whether the person charged is a drug user (for example, even if the amount of drugs is more than a few individual uses, if the accused individual testifies to being a user, the judge may only find the individual guilty of possession and not possession for the purpose of trafficking. The potential penalty for possession for the purpose of trafficking is much greater than simple possession).
Trafficking consists of the selling or giving of an illegal item to another person. You do NOT have to be given anything in exchange for the illegal item to be considered trafficking.
Are there any other defences to cases involving drugs?
Yes. More often than not these days, the police are obtaining evidence by violating the Canadian Charter Rights of individuals. Every citizen has the right not to be stopped and detained by the police nor searched by them without reasonable and probable grounds to believe a criminal offence has been committed or is about to be committed.
As a result of a Charter violation, the Court may exclude the evidence of the illegal drug at the trial. Without this evidence, the case usually will no longer proceed and a person will be found not guilty. The evidence is often excluded when the police blatantly violate the rights of an individual without regard to the rights of Canadian citizens. Unfortunately, in Canada and in many other countries, minorities are often subjected to illegal searches and detentions by the police for random investigations.
What kind of sentence will I receive if I am convicted of a drug offence?
The type of sentence a person can receive for a drug offence depends on a myriad of factors. Some drug offences can carry a maximum penalty of life in prison. Some of the factors considered include, but are not limited to:
i) the type of drug (for example, marijuana offences are generally lighter sentences than cocaine sentences)
ii)the quantity of drug (being found guilty of possessing 2g of cocaine is much less serious than having 2kg of cocaine)
iii)if the person is convicted of possession, possession for the purpose of trafficking, importing, cultivation, or trafficking
iv) the criminal record of the person found guilty
v)the facts surrounding the case including whether there was a Charter violation
Some of my most successful cases to date involved the exclusion of drugs from evidence in trials due to Charter violations. I have also been successful in cases that revolve around whether an individual was in actual possession of the drug despite a police officer’s assertion that the drugs were found on an individual. It is a myth that police officers will not lie. Some do. Some get caught misleading the Court. With a good lawyer, where lies are made, lies made by a police officer can often be exposed. Click HERE to contact Jeff Hershberg for a free consultation.