Toronto Drug Lawyers: Possession, Trafficking, Production & Importing Offences

What to do if you’re charged with a criminal drug offence

A conviction for any drug offence has serious consequences. Many drug offences currently carry mandatory minimum jail sentences. And any drug offence – no matter how serious or trivial – carries the real risk of a permanent criminal record, which can have life changing consequences. A criminal record can make it harder to enter certain professions, to get a job, or to travel to the United States.

Our firm has a lot of experience defending people charged with drug offences all across Ontario. We know how to craft a defence to these charges, to find and preserve the evidence needed to back it up, and to marshal that evidence in court to provide the best defence possible to the charge. We also use our experience in the court system to successfully negotiate withdrawals and other resolutions to many charges before they ever get to trial. Sometimes, trials can’t be avoided, and in that case having a lawyer with a proven track record in Court is the most important thing you can do to help your case. You need a lawyer who can persuasively tell your story and present your defence through cross-examination, by preparing you to testify, and by using the law and the facts to persuasively argue your defence in closing submissions.

If you have been charged with a drug offence or believe that you might be, contact us using the form on this web page immediately for a free consultation about your case.

What are the rules now for marijuana in Canada?

Canada decriminalized possession of marijuana on October 17, 2018. The rules around marijuana are now set out in the Cannabis Act. Under the Act, it is legal for an adult over the age of 18 to possess in public up to 30 grams of dried cannabis. For people under the age of 18, it is legal for them to possess up to 5 grams of cannabis.

The Cannabis Act prohibits regular people from “large scale” distribution of marijuana. Section 9(1) of the Act makes it an offence for an adult to distribute more than 30 grams of dried cannabis to another adult, and to distribute any amount of marijuana to someone under the age of 18.

Under the Act, people are also allowed to cultivate up to four marijuana plants in their homes. It remains illegal, however, to import or export cannabis.

What drugs are illegal now in Canada?

The Controlled Drugs and Substances Act makes it illegal to possess a large number of substances in Canada. The Act defines the substances by their scientific and chemical names, but prohibits possession of all of the typical “hard drugs” people commonly understand to be illegal, including cocaine, fentanyl, heroin, ecstasy, crystal meth, magic mushrooms, and ketamine.

As of 2018, it is no longer illegal to possess or grow marijuana.

What is the sentence for drug offences in Canada?

There is a wide range of possible sentences for drug offences in Canada. Every case depends on its facts. Someone charged with simple possession of a small amount of drugs, who doesn’t have a criminal record, could well end up being given diversion and having their charges withdrawn. Someone else who is convicted of trafficking a large amount of heroin or fentanyl, with a criminal record for similar offences, could end up serving more than a decade in a federal penitentiary.

Frequently asked questions about drug charges in Canada

What does “possession” mean?

The technical definition of possession is set out in section 4(3) of the Criminal Code. It includes situations where someone has the substance in their actual possession, has stored the substance somewhere, has left the substance in someone else’s possession (e.g. if someone has their friend store something for them), or situations where more two or more people jointly have possession of something.

The courts have held that proving possession requires the Crown to prove that the accused had “knowledge” and “control” over the substance. Put simply, knowledge means that the accused will be guilty of possession only where the Crown can prove that he or she had knowledge that they were in possession of an illicit substance. Someone who possesses cocaine, for example, but who truly believes it is baking soda, would not be guilty of possession of cocaine because that person didn’t have the knowledge needed to prove the offence. That being said, someone who is reckless or “wilfully blind” about what it is that they possess can be found to have had knowledge.

Control requires the Crown to prove that a person exercised some amount of control over the substance. Just because someone knows where illicit drugs are, for example, (e.g. in a friend’s backpack) doesn’t mean that person is guilty of possession. Before that can happen, the person must have some measure of control over the substance.

However, the concept of control doesn’t just mean immediate physical control. For example, someone can be deemed to have control over a substance that is stored on someone else’s property. If a person asks their friend to keep drugs in his garage, that person can still be deemed to be in possession of those drugs, even if they can’t physically get into the garage without their friend, because they have exercised some degree of control over the drugs.

What is trafficking? 

Trafficking is defined very broadly in section 2(1) of the Controlled Drugs and Substances Act. It includes much more than just the act of selling drugs. Someone can be guilty of trafficking for administering, giving, transferring, transporting, or delivering drugs as well, or for even offering to do any of those things. This means that someone who moves drugs from one location to another, even if they never sell the drugs to anyone else, can be charged with trafficking. Similarly, someone who simply offers to sell drugs to someone (e.g. an undercover police officer) can be convicted of trafficking.

How do I get bail after I’ve been arrested?

If you’ve been arrested, the police will take you to court for a bail hearing. This is one of the most important things that will happen in your case, and you need to have a lawyer by your side fighting for your rights. Even if you are released, the court will put conditions on you that can be crippling and that can make it hard for you and your family to live a normal life. We fight to get our clients released, and to get them released on conditions that are fair.

What happens if the police did something illegal in finding the drugs?

If the police found drugs by illegally searching someone, that does not mean that the evidence or the charges will automatically be thrown out. Instead, the courts have held that they must balance the police conduct and its effect on the accused against society’s interest in having the case prosecuted. This makes it critically important to show at trial not just that a search was illegal, but that the police acted in bad faith, were negligent, that the misconduct reflects a systemic problem with the police force, and that the search profoundly violated the accused’s privacy rights.

When are the police allowed to search someone?

The police almost always discover drugs by searching people or places. In many drug cases, the question of possession may not be controversial, and the issue will surround how the police found the drugs, and whether they did anything illegal in the process. The Charter of Rights and Freedoms protects everyone in Canada against “unreasonable” search and seizure. Many drug cases involve challenges to police decisions to search people, which led to the discovery of drugs.

Search and seizure is a complicated legal subject in Canada, but in general the police can only search someone in a few situations:

  • If the police have “reasonable grounds to believe” someone has committed a crime, they are empowered to arrest that person. After making an arrest, the police are allowed to search that person and their possessions to look for evidence. So, for example, if the police see someone sell drugs to someone else on the street, they can arrest both people and search them.
  • If the police have “reasonable grounds to believe” someone is in possession of drugs, they can apply for a warrant to search that person’s house, car, or any other place they believe the drugs are being stored.
  • If the police “reasonably suspect” someone is committing an offence, they are entitled to detain that person to investigate. As part of that investigative detention, they are allowed to conduct a “pat down” search in order to ensure their safety. Many drug cases begin with the police detaining someone on suspicion that they have committed a drug offence, and then trying to develop the grounds they need to make an arrest or to search the person.

In many drug cases, whether the police had the authority they needed to conduct a search, and whether they used that authority properly, become pivotal issues. The sad reality is that there are cases where the police abuse the powers they have been given, lie about the reasons for conducting a search, or how the search was conducted, or simply don’t know the rules around what they are allowed to do. In many cases, challenging the search that was conducted provides the best defence against drug charges.

How do the police get a warrant?

To get a warrant, the police have to apply to a Judge or a Justice of the Peace. The warrant should only be granted if the police can show they have reasonable grounds to believe an offence has been committed, and that searching the place they want to search is likely to provide evidence of the offence. These search warrant applications require the police to set out their grounds for believing that an offence has been committed by the accused, and that evidence will be found in the place they want to search. The process requires the police to provide “full, frank and fair” disclosure of their investigation to the courts – meaning the police are not allowed to lie, mislead, or cherry pick from the evidence simply to try and justify a warrant being issued.

In many drug cases involving search warrants, challenging the search warrant may be the only viable defence. These challenges involve carefully examining the warrant application along with all of the other notes and records of the police investigation. It is critical to see whether the information set out in the warrant was sufficient to justify issuing the warrant. In addition, it is important to see whether the rest of the evidence in the case reveals that the police were dishonest or misleading when they applied for the warrant.

Even if a search warrant was legally issued, the police must conduct the search in a reasonable way. If the police destroy property while they “turn a house upside down” looking for drugs, it is possible that they will be found to have violated the Charter.

Contact us about your case

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Telephone: 416-649-5061

116 Simcoe Street, Suite 100
Toronto, ON
M5H 4E2