Drug offences can be a serious and complicated matter, and no one wants to be the target of the investigation. Not only because being in the middle of a criminal lawsuit is emotionally tolling, but because it can be hard to understand the legalese of the offences.
From reading the Canadian Controlled Drug and Substances Act to simply understanding what you are being charged with, knowing your rights can be a valuable advantage in case of need. However, you should never try to defend yourself against drug offence claims in court or police departments.
A Calgary criminal lawyer is essential, as they can be of great help when dealing with those situations, and will do their best to protect your rights. If you have been charged with a drug-related offence, you may want to understand the basics of the law and which paths forward you can take to solve your issue.
To have a grasp on the matter, here are the two most common types of drug offences and how to defend them.
Drug Possession
As the name suggests, drug possession means having illegal substances with you. It can be either the simple possession of an illegal drug or controlled substance, or it can come accompanied by the intention of trafficking. What that means is: you can be charged for carrying drugs with you or on your way to manage it to someone else.
In order for someone to be convicted of possession of an illegal drug, the prosecutor needs to prove a few key points. First, and most importantly, the substances need to be on the body of the defendant, or in a place over which they have control of, such as their house, car, locker, etc.
The second key element of this offence is knowing what the substance is and its illegality: The person being charged must be aware that they are carrying an illegal drug. However, it is important to highlight that the ignorance of law does not take away the guilt off someone. Even if you swear that you thought cocaine was legal in Canada, you can still face charges by not informing yourself better.
In 2020, Canada Statistics reported that the most common substances to be apprehended in Alberta are methamphetamine and cocaine, and the city of Calgary has also seen an increase in drug possession offences.
The penalty for drug possession varies and takes into consideration many different factors, being the main ones the kind and amount of substance being carried. Moreso, it is also taken into consideration if there was the use of violence during the search, if the defendant has a criminal record and if their personal circumstances such as age, mental health and reputation.
In the text of the Controlled Drugs and Substances Act, it is possible to find the substances whose possession for purposes of trafficking are prohibited, in its Section 5 (2), listed under Schedule I, II, III, IV, and VI—and don’t worry, we have attached the schedules on the bottom of the page if you want to know more about what that means.
Drug Trafficking
Drug Trafficking is not simply selling drugs to another person. The offence includes other forms of trafficking, such as administrating, delivering, transferring, or sending a controlled substance to third parties. This also includes offering to sell a substance and even authorization to sell.
So if you are caught managing a meth lab, taking drugs from one place to another on behalf of your boss or trying to send controlled medicine in the mail, you can be charged with drug trafficking. The purpose of such broad definition is for authorities to be able to dismantle entire drug rings at once and to avoid loop holes.
More often than not, the people who command drug operations—or the drug lords—will rarely be caught with their hands on the substances because they assign the job to others, effectively employing people to keep their hands as clean as possible. By defining drug trafficking with every step of selling controlled substances, it is possible to avoid that criminals get away with it.
The Controlled Drugs and Substances Act outlines what is trafficking, and the drugs which are prohibted under the law. The Section 5 (1) prohibits trafficking any controlled substance in Schedule I, II, III, IV, and VI. Again, the definition of which substances fall into each schedule is listed at the end of this page.
How To You Defend Yourself
Your best defence against a drug-related offence is to hire a good criminal lawyer to defend you, as they have all of the knowledge to analyse your case, and the expertise to represent you in court. Criminal cases should be observed case-by-case, and only an authorized person can provide you with legal advice.
The most common defence, however, is to argue that the search has violated your rights under the Canadian Charter of Rights and Freedom. If law enforcement violated your rights under Sections 8, 9, or 10, evidence may be excluded from your case.
This violation can happen in many forms. During vehicle searches, for example, police cannot enter your automobile and perform a search without your consent unless they have reasonable and probable cause, that will be granted by a judge. Important to notice that they still can look through your windows and use a flashlight. The limitation here is that they must not open your vehicle.
Personal searches are those performed on someone’s body and so in most cases, those cannot be conducted without the person’s consent. However, if a drug search is being conducted at the place you are in, law enforcement can legally search you as well.
You can voice objections to be searched in a calm and polite way and ask to talk to your lawyer. If law enforcement asks to search you and there are drugs in your possession, you should never consent to be searched.
For law enforcement to search your home, a warrant is necessary for most instances, as they would be needing to enter private property. Law enforcement must show you a copy of the warrant, identify themselves, and ensure they won’t be aggressive or damage any property.
Knowing your rights during searches is essential to keep yourself protected from abuse of power and police brutality.
What happens if you get convicted?
More important than knowing how to defend yourself, is being aware of the consequences of drug-related offences, as the penalties for those can vary greatly and range from non-judicial programs such as the Alternative Measures Program (AMP) in Alberta to life imprisonment.
It will all depend on how much of a good defence you may have had, and the degree of infringement. First offences of possession of Schedule I, II, or III substances can range from a fine of $1000, 6 months in jail, or both. If an offence is repeated, penalties are increased for every subsequent offence, and reach fines of $2000, one year in jail, or both.
If the charges are prosecuted by indictment, penalties can vary depending on what kind of substance is being carried. The relation between Schedules and years of imprisionment is as follows:
Schedule I: 7 years
Schedule II: 5 years
Schedule III: 3 years
Schedule IV: 18 months
Important: The maximum sentence for trafficking Schedule I or II substances is life imprisonment. Commercial trafficking of cocaine starts with 3-years imprisonment, heroin starts with 5-years imprisonment, and wholesale fentanyl trafficking starts at 9-years imprisonment.
Alberta treats drug-related offences with great severity, and the best thing anyone can do is stay away from those practices. But if you already caught yourself in such dire situation, you must call a lawyer as soon as possible, and speak with them first.
Appendix: Controlled Drugs and Substances Schedules
Schedule I
Those are the “hard drugs”, and include but are not limited to opioids, cocaine, fentanyl, and methamphetamine.
Schedule II
Synthetic weeds are included in Schedule II and may be subject to the Cannabis Act of 2018.
Schedule III
Recreational or easily abused drugs, such as psilocybin (the active agent of “magic mushrooms”), LSD, and DMT.
Schedule IV
Prescription drugs that can be abused, such as steroids, barbiturates, and benzodiazepines.
Schedule V
Analogues and derivatives of N-Phenyl-4-piperidinamine and its salts
Schedule VI
Controlled substances such as ethyl ether, sulphuric acid, toluene, and acetic anhydride. While those aren’t what normally consist of illegal drugs, they are still controlled substances.