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Drug Charges

Marijuana plant, Toronto Drug Possession & Trafficking Charges Lawyer

Drug Charges

Toronto Drug Possession & Trafficking Charges Lawyer

Drug charges carry a strong social stigma. Aside from the real risk of a jail sentence, If one is convicted of a drug charge, he or she might lose their job, and may find future international travel to be extremely difficult in the future. Drug convictions also carry the potential for the forfeiture of all “drug related” or “offence related” property. This can result in the forfeiture of one’s car or even one’s home. Brian has successfully represented clients facing serious drug possession and trafficking charges. If you are facing drug charges, contact Brian Weingarten Defence Law today.

What Types of Drug Charges Are There?

Drug offences in Canada are prescribed by various sections of the Controlled Drugs and Substances Act, and the Cannabis Act, rather than the Criminal Code. Some of the more common offences that are prosecuted under the Acts are:

Drug possession;
Drug trafficking;
Possession for the purpose of trafficking;
Double doctoring;
Drug production;
Drug importing & exporting.

Are All Drugs and Drug Charges Treated the Same Under the Controlled Drugs and Substances Act?

The Crown does not treat all drug charges the same. The severity of the offence and the potential penalty depends upon: 1) the type of charge alleged; and 2) the nature of the drug that is at issue.

Both the structure of the Controlled Drugs and Substances Act, as well as caselaw establishes which drugs are considered more damaging to society, and therefore warranting greater penalties.

The Act contains a number of different schedules that group particular drugs and precursors.

Schedule I drugs are generally held to be the most serious and therefore attract the harshest sentences. Drugs contained in this schedule include:

Opium, codeine, morphine, fentanyl, and heroin;
Coca, coca leaves, cocaine, and crack;
G.H.B.;
Amphetamines and Methamphetamine (Crystal Meth);
Ketamine.

Schedule II previously dealt with Cannabis related drugs. This schedule has since been repealed and replaced by the Cannabis Act.

Schedule III pertains to various hallucinogens. The prosecution and the courts also treat these drugs quite seriously. Examples of drugs contained in this schedule are:

LSD;
Psilocybin (Magic Mushrooms);
Cathinone (Khat and Bath Salts).

Schedule IV generally pertains to various controlled and restricted prescription drugs. Examples of drugs contained in this schedule are:

Barbiturates;
Benzodiazepines;
Anabolic steroids.

What Does Possession Mean and What Does the Prosecution Have to Prove to Make out a Possession Charge?

Section 4(1) of the Controlled Drugs and Substances Act makes it an offence to possess a substance contained in Schedules I, II or III unless authorized to do so under the regulations. The Act adopts the definition of “possession” set out in section 4(3) of the Criminal Code. Section 4(3) provides:

For the purposes of this Act,

(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 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.

Section 4(3) therefore creates three different types of “possession.” Section 4(3)(a) outlines the first type of possession, known as personal or actual possession. Personal or actual possession will be made out where an accused has knowledge of what the object (drug) actually is, and some degree of control over the object.

Sections 4(3)(a)(i) and 4(3)(a)(ii) outline the second type of possession: constructive possession. The Supreme Court of Canada has explained that constructive possession is established where an accused does not have personal possession over the object in question, but did have it in the possession of another person for the benefit of himself or another person. The elements are constructive possession are therefore: 1) knowledge of the character of the object (drug); 2) knowingly putting or keeping the object in a particular place; 3) the intention to have the object stored in a particular place for his use or benefit, or that of another person. Knowledge and control are therefore essential to a finding of constructive possession.

Section 4(3)(b) outlines the third type of possession: joint possession. Joint possession of a drug or another object occurs where: 1) there is knowledge of the character of the drug; 2) there is some measure of control over the item by the party in possession; and 3) the second party has actual possession with the consent of the rest.

In order to make out a possession charge, the prosecution must prove that the drug was in fact a prohibited or controlled drug contained in the various schedules. This is typically done by way of laboratory analysis. The Crown must also prove the elements of one of actual, constructive, or joint possession discussed above.

What is Drug Trafficking and Possession for the Purpose of Trafficking?

Section 5(1) makes it an offence to traffic in substances contained in the Act’s various schedules. The section goes further, however, and also makes it an offence to traffic in any substance that is held out to be a substances contained in the schedules. As such, the trafficking is “baking soda” that is held out to be cocaine is just as serious as trafficking in the actual drug.

Section 2(1) of the Act defines the terms “traffic” and “sell.” The Act defines these terms as follows:

“traffic” means, in respect of a substance included in any of Schedules I to IV,

(a) to sell, administer, give, transfer, transport, send or deliver the substance,

(b) to sell an authorization to obtain the substance, or

(c) to offer to do anything mentioned in paragraph (a) or (b), otherwise than under the authority of the regulations.

“sell” includes offer for sale, expose for sale, have in possession for sale and distribute, whether or not the distribution is made for consideration;

Section 5(2) of the Act creates the offence of possession for the purpose of trafficking. To be found guilty of an offence under this section, the Prosecution must first prove that the individual, by way of actual possession, joint possession or constructive possession in fact, possessed a prohibited drug. The prosecution must then also prove an intention to traffic in the prohibited drugs.

Often, the prosecution will rely upon circumstantial evidence to establish an intention to traffic in the prohibited drugs. In order to establish an intention to traffic, the prosecution might point to:

• A large volume of drugs found in a particular location;
• Drug paraphernalia such as scales, counting machines, and baggies;
• Large volumes of currency or cash located along with the drugs;
• Surveillance technology installed in residences;
• Bank records showing sizeable withdrawals and deposits within narrow time frames.

What are Some of the Penalties for Drug Trafficking?

Drug trafficking, and possession for the purpose of trafficking is a very serious offence regardless of the nature of the drug involved. Recently, the federal government enacted a number of mandatory minimum sentences applicable to those found guilty of these offences.

There are many different potential sentences for these offences. The severity of the sentence depends upon the drug at issue and any enumerated aggravating circumstances. For example, anyone found guilty of trafficking or possession for the purpose of trafficking in a schedule Ifaces a mandatory minimum sentence of one year if the accused used or threatened violence; carried a weapon while committing the offence; or committed the offence for the benefit of a criminal organization. A mandatory minimum sentence of two years applies if the offence was committed on or near school grounds, or near any public place that is usually frequented by persons under 18.

The maximum penalties for drug trafficking, and possession for the purpose of trafficking, range from as low as 18 months in jail for small quantities of schedule III drugs, to life imprisonment for trafficking in heroin, fentanyl, and cocaine.

What is Double Doctoring?

Under section 4(2) of the Controlled Drugs and Substances Act, individuals are prohibited from attempting to obtain controlled substances from a medical practitioner unless they first disclose to the doctor every other prescription or authorization for the same drugs that was obtained within the past thirty days.

Effectively, individuals are prohibited from going from doctor to doctor to obtain multiple prescriptions for drugs such as: codeine, morphine, Percocet, Tylenol 3’s, barbiturates, and benzodiazepines without first telling the doctor that they have outstanding prescriptions for the same drugs.

Section 4(7) of the Act outlines the potential penalties for double doctoring as follows:

(7) Every person who contravenes subsection (2

(a) is guilty of an indictable offence and liable

(i) to imprisonment for a term not exceeding seven years, where the subject-matter of the offence is a substance included in Schedule I,

(ii) to imprisonment for a term not exceeding five years less a day, where the subject-matter of the offence is a substance included in Schedule II,

(iii) to imprisonment for a term not exceeding three years, where the subject-matter of the offence is a substance included in Schedule III, or

(iv) to imprisonment for a term not exceeding eighteen months, where the subject-matter of the offence is a substance included in Schedule IV; or

(b) is guilty of an offence punishable on summary conviction and liable

(i) for a first offence, to a fine not exceeding one thousand dollars or to imprisonment for a term not exceeding six months, or to both, and

(ii) for a subsequent offence, to a fine not exceeding two thousand dollars or to imprisonment for a term not exceeding one year, or to both.

What are Some Other Consequences that Might Flow from a Drug Conviction?

In addition to the potential for significant jail time and costly fines, the Act allows for the prosecution to bring forfeiture applications with respect to offence related property. By virtue of sections 16 and 17 of the Act, the prosecution can, upon conviction, seek the forfeitures of offence related property such as:

• Currency;
• Drug paraphernalia, such as lights, scales, fans, and other equipment;
• Vehicles;
• Houses.

In addition to the potential forfeiture of various types of property, drug convictions can also permanently block travel to the United States or other international destinations.

What are Some Potential Defences to Drug Charges?

There are a number of defences to drug charges that might be raised in the right circumstances. It may be possible to argue that the accused was subject to an arbitrary arrest or detention. If the drugs were obtained by way of a search warrant, it may be possible to challenge the validity of the search and seek to have the drugs excluded as evidence.

If an individual is charged with trafficking drugs to an undercover police officer, it may be possible to argue entrapment in the right circumstances.

For possession-based offences, it may be possible to demonstrate a lack of knowledge of the nature of the drug, its location on the premises, or the lack of control over the premises where the drugs were found.

Is Possession of Marijuana/Cannabis Still a Crime?

In 2018, the Government of Canada “de-criminalized” various offences related to the possession of marijuana/cannabis. Marijuana and other cannabis products are now governed by the Cannabis Act. Under the CannabisAct, a distinction is drawn between “legal” and “illicit” cannabis.

Illicit Cannabis is defined as:

cannabis that is or was sold, produced or distributed by a person prohibited from doing so under this Act or any provincial Act or that was imported by a person prohibited from doing so under this Act.

Section 8 of the Cannabis Act sets out a number of offences. These including possession of cannabis by someone under the age of 18; possession of illicit cannabis by someone over the age of 18, etc. Specifically, the section states:

Possession
8 (1) Unless authorized under this Act, it is prohibited

(a) for an individual who is 18 years of age or older to possess, in a public place, cannabis of one or more classes of cannabis the total amount of which, as determined in accordance with Schedule 3, is equivalent to more than 30 g of dried cannabis;

(b) for an individual who is 18 years of age or older to possess any cannabis that they know is illicit cannabis;

(c) for a young person to possess cannabis of one or more classes of cannabis the total amount of which, as determined in accordance with Schedule 3, is equivalent to more than 5 g of dried cannabis;

(d) for an individual to possess, in a public place, one or more cannabis plants that are budding or flowering;

(e) for an individual to possess more than four cannabis plants that are not budding or flowering; or

(f) for an organization to possess cannabis.

Punishment

(2) Subject to section 51, every person that contravenes subsection (1)

(a) is guilty of an indictable offence and is liable

(i) in the case of an individual who is 18 years of age or older, to imprisonment for a term of not more than five years less a day,

(ii) in the case of a young person, to a youth sentence under the Youth Criminal Justice Act, or

(iii) in the case of an organization, to a fine in an amount that is in the discretion of the court; or

(b) is guilty of an offence punishable on summary conviction and is liable

(i) in the case of an individual who is 18 years of age or older, to a fine of not more than $5,000 or imprisonment for a term of not more than six months, or to both,

(ii) in the case of a young person, to a youth sentence under the Youth Criminal Justice Act, or

(iii) in the case of an organization, to a fine of not more than $100,000.

Sections 9 and 10 of the Cannabis Act deal with the distribution, or “trafficking” of cannabis.

Distribution

9 (1) Unless authorized under this Act, it is prohibited

(a) for an individual who is 18 years of age or older

(i) to distribute cannabis of one or more classes of cannabis the total amount of which is equivalent, as determined in accordance with Schedule 3, to more than 30 g of dried cannabis,

(ii) to distribute cannabis to an individual who is under 18 years of age,

(iii) to distribute cannabis to an organization, or

(iv) to distribute cannabis that they know is illicit cannabis;

(b) for a young person

(i) to distribute cannabis of one or more classes of cannabis the total amount of which is equivalent, as determined in accordance with Schedule 3, to more than 5 g of dried cannabis,

(ii) to distribute cannabis to an organization;

(c) for an individual

(i) to distribute one or more cannabis plants that are budding or flowering, or

(ii) to distribute more than four cannabis plants that are not budding or flowering; or

(d) for an organization to distribute cannabis.

Possession for purpose of distributing

(2) Unless authorized under this Act, it is prohibited to possess cannabis for the purpose of distributing it contrary to subsection (1).

Defence — subparagraph (1)(a)(ii)

(3) It is not a defence to a charge arising out of the contravention of subparagraph (1)(a)(ii) that the accused believed that the individual referred to in that subparagraph was 18 years of age or older, unless the accused took reasonable steps to ascertain the individual’s age.

Defence — subsection (2)

(4) It is not a defence to a charge arising out of the contravention of subsection (2) of possessing cannabis for the purpose of distributing it to an individual referred to in subparagraph (1)(a)(ii) that the accused believed that the individual was 18 years of age or older, unless the accused took reasonable steps to ascertain the individual’s age.

Punishment

(5) Subject to section 51, every person that contravenes subsection (1) or (2)

(a) is guilty of an indictable offence and is liable

(i) in the case of an individual who is 18 years of age or older, to imprisonment for a term of not more than 14 years,

(ii) in the case of a young person, to a youth sentence under the Youth Criminal Justice Act, or

(iii) in the case of an organization, to a fine in an amount that is in the discretion of the court; or

(b) is guilty of an offence punishable on summary conviction and is liable

(i) in the case of an individual who is 18 years of age or older who contravenes any of subparagraphs (1)(a)(i), (iii) and (iv) and (c)(i) and (ii) — or subsection (2) other than by possessing cannabis for the purpose of distributing it contrary to subparagraph (1)(a)(ii) — to a fine of not more than $5,000 or imprisonment for a term of not more than six months, or to both,

(ii) in the case of an individual who is 18 years of age or older who contravenes subparagraph (1)(a)(ii) — or subsection (2) if the possession was for the purpose of distribution contrary to subparagraph (1)(a)(ii) — to a fine of not more than $15,000 or imprisonment for a term of not more than 18 months, or to both,

(iii) in the case of a young person, to a youth sentence under the Youth Criminal Justice Act, or

(iv) in the case of an organization, to a fine of not more than $100,000.

Selling

10 (1) Unless authorized under this Act, it is prohibited to sell cannabis, or any substance represented or held out to be cannabis, to

(a) an individual who is 18 years of age or older;

(b) an individual who is under 18 years of age; or

(c) an organization.

Possession for purpose of selling

(2) Unless authorized under this Act, it is prohibited to possess cannabis for the purpose of selling it contrary to any of paragraphs (1)(a) to (c).

Defence — paragraph (1)(b)

(3) It is not a defence to a charge arising out of the contravention of paragraph (1)(b) that the accused believed that the individual referred to in that paragraph was 18 years of age or older, unless the accused took reasonable steps to ascertain the individual’s age.

Defence — subsection (2)

(4) It is not a defence to a charge arising out of the contravention of subsection (2) of possessing cannabis for the purpose of selling it contrary to paragraph (1)(b) that the accused believed that the individual referred to in that paragraph was 18 years of age or older, unless the accused took reasonable steps to ascertain the individual’s age.

Punishment

(5) Subject to section 51, every person that contravenes any of paragraphs (1)(a) to (c) or subsection (2)

(a) is guilty of an indictable offence and is liable to imprisonment for a term of not more than 14 years; or

(b) is guilty of an offence punishable on summary conviction and is liable

(i) in the case of an individual who contravenes paragraph (1)(a) or (c) — or subsection (2) other than by possessing cannabis for the purpose of selling it contrary to paragraph (1)(b) — to a fine of not more than $5,000 or imprisonment for a term of not more than six months, or to both,

(ii) in the case of an individual who contravenes paragraph (1)(b) — or subsection (2) if the possession was for the purpose of selling contrary to paragraph (1)(b) — to a fine of not more than $15,000 or imprisonment for a term of not more than 18 months, or to both, or

(iii) in the case of an organization, to a fine of not more than $100,000.

Sections 11 to 15 deal with further offences related to the cultivation, production, importing and exporting of cannabis, as well as sentencing factors.

Division 2, Sub-Division A of the Act relates to restrictions on the promotion of cannabis and cannabis accessories

Sub-Division B of the Act regulates the packaging and labelling of cannabis products.

Sub-Division C regulates the display of cannabis and cannabis accessories.

Sub-Division D deals with the restrictions on the selling and distributing of legal cannabis to young persons.

Part 2 of the Act sets out a regime for pursuing cannabis related offences by way of a ticket, rather than by way of criminal proceedings.