Drug charges lawyer in Toronto
Drug prosecutions rest almost entirely on physical evidence, and physical evidence has to be lawfully obtained. That is why so many of these cases turn on how the police found what they found.
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The charges
Most drug prosecutions in Ontario proceed under the Controlled Drugs and Substances Act. The common charges are:
- Possession. Having a controlled substance in your possession.
- Possession for the purpose of trafficking. Possession coupled with an intention to traffic. The physical act is identical to simple possession; what is added is an inference about your intention.
- Trafficking. Selling, giving, transferring, or offering to do so. Note that no money needs to change hands.
- Production. Manufacturing or cultivating a controlled substance.
- Importing and exporting. Treated with particular seriousness.
Cannabis is now regulated separately under the Cannabis Act, which has its own set of offences for activity outside the legal framework. It is not simply legal in all circumstances, and charges under that Act are real charges.
Search and seizure is the centre of most of these cases
You have a right to be secure against unreasonable search and seizure. In a drug prosecution, the Crown's case is usually the drugs themselves. If the search that produced them was unlawful, the evidence may be excluded, and once it is excluded there is frequently nothing left to prosecute.
That is why the first and most important work in a drug file is a careful examination of how the search happened:
- Was there a warrant, and does it survive scrutiny? The information sworn to obtain it can be challenged. If the grounds in it were insufficient, overstated, or relied on material the officer should not have included, the warrant can fall.
- If there was no warrant, what justified the search? Warrantless searches are presumptively unreasonable and the Crown has to justify them.
- Was the vehicle stop lawful? A traffic stop is not a general licence to search a car, and a great many roadside drug seizures are vulnerable on this point.
- Was the detention lawful, and were you told of your right to counsel?
- Was a phone searched, and on what authority? Digital evidence attracts significant privacy protection.
- Was a confidential informant relied on, and was the information compelling, credible and corroborated?
Possession itself is not as simple as it sounds
Proving possession requires more than proximity. The Crown has to establish knowledge and some measure of control. Drugs found in a shared apartment, a borrowed car, or a room that several people use are not automatically possessed by everyone present, and the inference the Crown wants to draw is often a great deal weaker than the charge implies.
Possession for the purpose
The step from possession to possession for the purpose of trafficking is an inference, and inferences can be attacked. The Crown will typically point to quantity, packaging, scales, cash, phones and messages, and will often call an officer to give opinion evidence about what those things mean. That opinion evidence is not unassailable. Its foundation, the expert's qualifications, and the alternative innocent explanations for each item are all fair ground.
The difference between the two charges is substantial at sentencing, so this is worth contesting even where possession itself is not really in issue.
What to do now
- Do not explain anything to the police. In drug cases, explanations about whose drugs they were and what they were for are frequently the single most damaging piece of evidence against the person who gave them.
- Do not consent to any further search, of a phone, a home or a vehicle.
- Write down exactly how the search unfolded while you remember it: what was said, what you were told, whether you were asked for permission, when you were told about a lawyer.
- Keep every document you were given on release.
- Get advice before your first appearance. Disclosure needs to be requested and reviewed properly, and Charter applications have notice requirements.
Common questions
Can drug charges be thrown out over an illegal search?
They can. Where a search breached the Charter, the evidence it produced may be excluded, and in a drug prosecution the evidence usually is the case. Whether that applies depends on how the search was conducted and what the disclosure reveals, which is why a careful review of the file comes before any prediction about outcome.
The drugs were not mine. Does that matter?
It matters a great deal. The Crown has to prove knowledge and control, not mere presence. Drugs found in a shared home, a borrowed vehicle or a common area are not automatically possessed by everyone nearby, and that inference is often much weaker than the charge suggests.
What is the difference between possession and possession for the purpose of trafficking?
The physical act is the same. What is added is an intention to traffic, which the Crown proves by inference from things like quantity, packaging, cash and messages, usually supported by police opinion evidence. That inference and that opinion evidence can both be challenged, and the difference between the two charges at sentencing is significant.
Is cannabis still a criminal matter?
Cannabis is regulated under the Cannabis Act, which has its own offences for activity outside the legal framework, including distribution and possession beyond permitted limits. It is not simply legal in every circumstance, and charges under that Act are genuine criminal charges that need to be defended.
Can the police search my phone if they find drugs?
Not without lawful authority. Digital devices attract substantial privacy protection and the rules governing when and how a phone may be searched are strict. Where a phone search was improper, the messages recovered from it, which are often central to a possession for the purpose allegation, may be excluded.
Talk to us about your case
Every Defence LLP has defended criminal charges across Ontario since 2006. Our office is at 920 Yonge Street, Suite 602, Toronto. The first consultation is free and the phone is answered around the clock.