How do I get drug charges dropped?

A conviction for a drug-related crime can have far-reaching consequences. A criminal record will hurt your chances of finding employment and housing and could even affect your ability to travel outside Canada. It is understandable why those charged with drug crimes want to know if and how these charges can be dropped.

When I have a client in this situation, the first thing I have them do is go over every detail of the case. I want a full account of what led up to the arrest and charges being laid. Full disclosure from the client is essential, as that allows me to compare what they are telling me against what the police provide through disclosure as the case progresses.

Was the search warrant properly handled?

If police obtained a warrant to search through your house or car to look for narcotics, I will want to ensure officers properly abided by the powers granted them. If the police exceeded the authority of the warrant, I can argue that the search was illegal and that any evidence uncovered should be ruled inadmissible.

Section 24 of the Canadian Charter of Rights and Freedoms grants citizens this power, as it states: “Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.”

It should be noted that courts are allowed to admit evidence obtained without a warrant if the Crown can show that its admissibility does not contravene s. 24. The legal arguments involved in that process provide another reason for having experienced defence counsel at your side during this process.

Invalidity of search warrant leads to dismissal of charges

A news report states that a drug case against two men ended suddenly due to problems with the search warrant police used to search a hotel room where they found close to 200 grams of crack cocaine.

The two men in the room challenged the validity of the search warrant, arguing police did not have enough information to justify searching the room, the story states, adding that “police admitted they were initially targeting the room across the hall, but added the second room in the search warrant after seeing some of the suspects enter and then leave that room.”

Without the evidence of the drugs seized, the case against the men collapsed, the story states.

Were your Charter rights violated?

Every Canadian is protected by the Charter, which guarantees that citizens cannot be subject to “unreasonable search or seizure” or be “arbitrarily detained.” With many drug prosecutions, a competent defence lawyer can find examples of how police overstepped their boundaries when conducting investigations.

A Department of Justice (DoJ) statement notes courts have ruled that while police have “no general power of detention for investigative purposes, officers may detain an individual if there are reasonable grounds to suspect in all the circumstances that the individual is connected to a particular crime and that the detention is reasonably necessary on an objective view of the circumstances.”

Determining what are “reasonable grounds” has been an issue in many court battles. The DoJ document states in each case “a court will examine the totality of the circumstances. The officer’s decision cannot be justified on the basis of a vague or non-existent concern for safety, nor can the search be premised upon hunches or mere intuition.”

Warrantless searches are allowed, it continues, if there is “imminent danger of the loss, removal, destruction or disappearance of the evidence if the search or seizure is delayed. While the fact that the evidence sought is believed to be present on a motor vehicle, water vessel, aircraft or other fast-moving vehicle will often create exigent circumstances.”

Can the Crown connect you to the drugs?

In some cases, people will be living in a house or apartment with other people. If police get a warrant to search that residence and they find drugs, they may charge all those living there with possession, as they assume that everyone was aware that illegal substances were in the home.

I may be able to get the charges dropped if I can show that my client was not aware of the illegal habits of their roommates. Maybe they never socialized together or they worked different shifts, and the roommate who possessed the drugs kept them hidden from the others.

This defence will not work if the drugs were left in plain view, such as on the counter or table. In that case, all the housemates could be charged with possession, even if one party was primarily responsible for the drugs being in the home.

Do you understand what ‘possession’ means?

You don’t have to be found with drugs on your person, in your house or in your car to be charged with possession. Instead, the Crown just has to prove that you had some measure of control and knowledge of them and that you were aware the drugs were illegal.

Section 4 (3) of the Criminal Code defines possession this way:

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

(b) 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.

Are you eligible for a diversion program?

Depending on the nature of the charges you may be eligible to enrol in a diversion program instead of going through a judicial trial. These programs are commonly offered to first offenders who are caught with a small amount of illegal substances. Acceptance into these programs demands that you admit responsibility for the actions that led to the charge and that you fulfill certain conditions, such as counselling or community service. Provided you are successful in completing the program, the charges will be withdrawn and you will have a clean criminal record.

Can you avoid a criminal record with a discharge?

In some circumstances, courts will use s. 730 of the Criminal Code to grant discharges to those facing minor drug charges. A 2020 judgment from the B.C. Provincial Court explains the reason.

“Discharges were enacted in 1972 in order to give the courts the power to relieve against both the fact and the stigma of a criminal conviction,” it states. “A discharge is not a conviction, but, rather, the offence is discharged and in the case of conditional discharge, with a probationary term.”

With a discharge, my client would plead guilty to the drug offence then apply to the court for a conditional discharge. If granted, it demands that they comply with certain conditions over a specific time period, after which they will be discharged from the offence and avoid a lifelong criminal record.

In other cases, the court can give an absolute discharge. An absolute discharge stays on your record for one year.

What about a conditional discharge or suspended sentence?

If you are found guilty of a drug offence, I can ask the court that you be given a suspended sentence. It requires you to adhere to strict probationary conditions for a set period of time in exchange for not having to go to jail.

We can also seek a conditional discharge. If you comply with all the probationary conditions for a set period of time and you do not have another conviction, there is not criminal conviction entered in your case. A conditional discharge stays on your criminal record for three years after the completion of the probation order.

The main difference between the two is that someone who gets a suspended sentence has a conviction registered against them. To clear their criminal record, they have to apply for a pardon to have the conviction removed from their record.

Why you need me in your corner

If you are charged with a drug offence there are many ways it can be handled. As an experienced defence counsel, I can study the facts of your case and suggest what option will work best for you, based on the Criminal Code and the precedents that have been set by the court in similar cases. Call me for a free 30-minute consultation in French or English.

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