Drug offence Lawyers in Canada

Section 4(1) says that, except as authorized under the regulations, no person shall possess a substance included in Schedule I, II or III. The Act says possession has the meaning given in subsection 4(3) of the Criminal Code. Under that subsection, a person has anything in possession when they have it in their personal possession or knowingly have it in the actual possession or custody of another person, or in any place, for the use or benefit of themselves or of another person.

Section 4(3) also deals with shared custody. Where one of two or more persons, with the knowledge and consent of the rest, has anything in custody or possession, it is deemed to be in the custody and possession of each of them. Both rules turn on knowledge, so the Crown's evidence about knowledge is a central part of a possession case.

Section 5(1) says no person shall traffic in a substance included in Schedule I, II, III, IV or V, or in any substance represented or held out by that person to be such a substance. Section 5(2) says no person shall, for the purpose of trafficking, possess a substance in those Schedules. The Act defines to traffic as to sell, administer, give, transfer, transport, send or deliver the substance, or to offer to do any of those things, otherwise than under the authority of the regulations.

Section 6 covers importing into Canada and exporting from Canada, and possessing a substance for the purpose of exporting it. Section 7 covers producing a substance. Each of these charges depends on which substance is named in the charge and where it sits in the Schedules.

The Crown is the prosecutor. Section 11(d) of the Charter gives a person charged with an offence the right to be presumed innocent until proven guilty, so the Crown is the side that has to prove the charge.

In practice that means the parts of the offence as the section words them. For a possession charge, those parts are a substance that is in the Schedules named in section 4, and possession as the Criminal Code defines it. For a trafficking charge, they are a substance in the Schedules named in section 5, and one of the acts in the Act's definition of to traffic. For possession for the purpose of trafficking, the section adds that purpose. Whether each part is proved is for the court to decide on the evidence.

The penalty depends on the offence and on the Schedule. For possession of a Schedule I substance, section 4(3) sets a maximum of seven years on indictment. On summary conviction, a first offence carries a fine of up to $1,000, imprisonment of up to six months, or both. A subsequent summary offence carries a fine of up to two thousand dollars, imprisonment of up to one year, or both. Section 4(4) sets five years less a day on indictment for a Schedule II substance, and section 4(6) sets three years for a Schedule III substance.

For trafficking, or possession for the purpose of trafficking, section 5(3) sets imprisonment for life on indictment when the substance is in Schedule I or II. For Schedule III or V the maximum on indictment is ten years, with a summary conviction option. For Schedule IV the maximum on indictment is three years, with a summary conviction option. Importing and exporting under section 6, and producing under section 7, also carry life imprisonment on indictment for a Schedule I or II substance.

The penalty clauses of sections 4 to 7 set maximums and no minimum term. A maximum is the ceiling the law allows. It does not say what sentence a court would give in any case.

A conviction for trafficking, importing, exporting or producing can also bring a weapons prohibition. Section 109(1)(c) of the Criminal Code covers an offence relating to the contravention of subsection 5(1) or (2), 6(1) or (2) or 7(1) of the Controlled Drugs and Substances Act. The court shall then make an order prohibiting the person from possessing firearms, weapons and ammunition for the period that section 109 sets.

Many drug cases involve a search, a stop or an arrest, so the Charter often matters. Section 8 gives everyone the right to be secure against unreasonable search or seizure. Section 9 gives everyone the right not to be arbitrarily detained or imprisoned. Section 10 gives the right, on arrest or detention, to retain and instruct counsel without delay and to be informed of that right.

Section 24(1) lets anyone whose Charter rights were infringed apply to a court for a remedy. Under section 24(2), evidence obtained in a manner that infringed Charter rights is excluded if admitting it would bring the administration of justice into disrepute. Whether a right was infringed in a particular case is for the court.

Section 11(b) gives a person charged with an offence the right to be tried within a reasonable time.

A defence can also be about the offence itself. The wording of sections 4 and 5 includes the words except as authorized under the regulations and otherwise than under the authority of the regulations. And because possession is defined by knowing, a lawyer may look at what the Crown can show about who knew what, particularly where a substance was found in a shared place.

In Ontario, every charge under the Controlled Drugs and Substances Act starts in the Ontario Court of Justice, and about 95% of charges are completed there. The Superior Court of Justice can try any indictable offence but generally tries only the most serious ones. The court's own description lists drug trafficking among them.

A person who is arrested may be taken before a justice for a release decision. Under section 515 of the Criminal Code, the justice shall make a release order without conditions unless the prosecutor shows cause why detention in custody is justified or why another order under that section should be made. Section 493.1 adds that primary consideration goes to release at the earliest reasonable opportunity and on the least onerous conditions that are appropriate.

A summary conviction appeal in Ontario goes to the Superior Court of Justice in the region, district or county where the case was decided. An appeal from a conviction on indictment goes to the court of appeal. It is as of right on a question of law alone, with leave on questions of fact or mixed law and fact, and with leave against sentence.

Legal Aid Ontario may pay for a lawyer if the person qualifies and is charged with a crime that could mean jail on conviction, or is 12 to 17 and charged under the Youth Criminal Justice Act. Duty counsel is a lawyer at the courthouse for that day. Duty counsel can advise on rights, ask to delay a court date, act at a bail hearing, help with a guilty plea, speak at sentencing, and meet the Crown, for people who qualify and have no lawyer.

A legal aid certificate pays a roster lawyer, one approved to take legal aid clients, for the length of the criminal case. Applications are online or by phone at 1-800-668-8258.

The Law Society of Ontario keeps a public Lawyer and Paralegal Directory, where a lawyer's licence can be looked up. The Ontario lawyers on this site are listed by city. Nothing on this page ranks or recommends any of them.