What are my defences if charged with a drug crime?

A conviction for drug possession brings serious consequences. Heavy fines and jail time are possibilities. Then there is the criminal record it brings, which will limit your employment prospects and international travel. An experienced criminal lawyer can outline defence strategies and help you decide that best suits your situation. Let’s review the most common defences that can be used.

Were your Charter rights violated?

The Canadian Charter of Rights and Freedoms protects all citizens from unreasonable search or seizure and from being arbitrarily detained. Police cannot stop you in the streets or pull your car over and search it just because they believe they may find drugs. They need reasonable grounds.
A 2018 Ontario Court of Appeal decision reinforces that the police cannot trample on Charter rights when conducting an investigation. It involved a man convicted by a lower court of three counts of possession of different drugs for the purpose of trafficking, including one count of possession of fentanyl for the purpose of trafficking.

The appeal court judge threw out the convictions and released the man, noting the police did not have a warrant to search his house. In addition, police denied the man access to legal counsel for a number of hours after the arrest. The court’s judgment reminded officers of their duty to abide by Charter rules.

“The right to counsel is a lifeline for detained persons,” it states. “Through that lifeline, detained persons obtain, not only legal advice and guidance about the procedures to which they will be subjected, but also the sense that they are not entirely at the mercy of the police while detained. The psychological value of access to counsel without delay should not be underestimated.”

If I can show your rights under the Charter were violated, I can ask that any evidence gathered in these illegal actions be excluded from trial, which often results in a dismissal of the charges if granted.

Did the police exceed the powers granted by the warrant?

The Criminal Code gives police and other agents of the state the power to examine “a person’s person or property” in order to look for evidence. According to s. 487 of the Code, justices will grant police a warrant if there are “reasonable grounds to believe [it] will afford evidence with respect to the commission of an offence, or will reveal the whereabouts of a person who is believed to have committed an offence.”

A Senate report notes that while police have the power to search a premise with a warrant, they “do not have a right to search people found on the premises. However … police may search a person who has been lawfully arrested … police are authorized to seize the items listed in the search warrant and other items that are in plain view. Once seized, these items must then generally be taken before a justice of the peace.”

A judge in the Northwest Territories dismissed drug charges against two men after police overstepped the powers granted in a warrant. According to a news report, police had obtained a warrant to search a Yellowknife hotel room where they suspected they would find cocaine. When they arrived to serve that warrant, police observed the suspects enter another room in the hotel, so they searched that room also and found 200 grams of cocaine.
In dismissing the drug charges against the two men, the judge said the officers’ observations about the suspects going into the second room did not establish “reasonable grounds to believe evidence would be found [there].”

The story adds that the judge says the men’s “right to not be subject to arbitrary searches was serious enough that the drugs seized should be excluded from the trial.”

Maybe you were not aware of the illegal substances?

If police obtain a warrant to search a residence and find drugs, they could charge everyone living there with possession. That is because possession means having knowledge and some degree of control over the drugs. If the illegal substance is found on the kitchen counter, police will argue that anyone residing there should have known about their presence.

However, if a roommate brought the drugs into the residence and kept them hidden from view, a defence could be mounted that you were unaware the drugs were in the home.

According to a news report, an American truck driver told a court in Lethbridge he was unaware of 84 bricks of cocaine hidden inside the cabin of his truck, discovered when he crossed the border.

With a street value between $6.5 million and $8 million, the drugs were found behind a microwave oven, in a drawer, at the foot of a bed and under a mattress, according to the story. It adds the truck driver maintains he was unaware of their presence, suggesting they may have been planted by others when he left the truck unlocked to shower and eat before crossing the border. A verdict has yet to be reached in this case.

Were you entrapped by the police?

Entrapment occurs in one of two ways. The first is if police provide you with an opportunity to commit an offence even though they lack a reasonable suspicion that you are already engaged in criminal activity. The second is if police do have a reasonable suspicion you are engaged in criminal activity and they induce you to commit the offence.

According to a Senate report on illegal drugs, the Supreme Court of Canada has established a non-exhaustive list of factors that a court must assess in determining whether the police conduct goes further than providing an opportunity.

“The court must adopt a contextual approach, and the doctrine will apply only in the "clearest of cases,” it states. “If the accused succeeds in proving there was entrapment, the remedy is a stay of proceedings.”

The report adds that “illegal police activity does not automatically amount to an abuse of process. The legality of police actions is but a factor to be considered, ‘albeit an important one.’”

Were you found with an insignificant amount of drugs?

The defence of de minimis non curat lex (the law should not concern itself with trifles) may be a defence to a charge of possession if a very small amount of an illegal drug has been seized.

In 1985, the County Court of Vancouver acquitted a man who was found with a pill vial that held a cigarette filter. According to the judgment, the filter contained pentazocine, which was then a restricted drug under the Narcotic Control Act, the forerunner to today’s Controlled Drugs and Substances Act. (Pentazocine is a Schedule I drug under the current Act).

The judgment notes the “de minimis argument in connection with simple possession has been applied or not applied in something of an inconsistent fashion. It would appear that the quantity of drug is irrelevant if it is in usable form. However, where the drug is in an altered form (i.e., burnt) and therefore completely useless, the defence of de minimis appears to be available.”

The court cited a 1954 Alberta Supreme Court decision, where a man was arrested while in the company of a drug trafficker and drug addicts. Police were unable to detect any drugs on the accused but an analysis of the dust collected from his pockets revealed the presence of approximately 1/l,000ths of a gram of heroin.

The trial judge noted it “could not be touched ... was completely useless and valueless medicinally, and completely useless and valueless to an addict or anyone else,” the judgment reads. He then dismissed the possession charge that was reached by a lower court, noting “the submission that the accused illegally had possession of heroin as contemplated by the Act ... is asking the Court to carry findings to an absurdity. Indeed to me it is so artificial and divorced from reality as to border almost on the fantastic. I cannot bring myself to the view here, that there was illegal possession of heroin in the contemplation of Parliament, in what otherwise were empty pockets.”

Don’t face a drug charge alone

In any trial, the Crown must establish guilt beyond all reasonable doubt. As an experienced defence lawyer, I will examine the details of their evidence and try to find inconsistencies. If you are charged with a drug crime, don’t make a statement to the police as that may impair your defence. Call me instead for a free consultation.

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