The crown in prosecuting drug offences must be able to prove the essentials elements of the particular offence. For example, in cases where a defendant is charged with possession of say cannabis for the purpose, the crown must prove both the elements of possession and trafficking. The crown must prove that the defendant knew of the presence of the drug and lack of knowledge is one of the common defences in this type of offence. The crown must also prove that the drug is a prohibited drug through a proper certificate of analysis by an expert from the Centre of Forensic Sciences.
The crown in order to prove trafficking must be able to prove that the defendant intended to distribute/supply the drugs to others. One of the misconceptions that some people have is that the crown must prove that the drug is being sold for profit. A mere distribution of the drugs to friends gratuitously can be sufficient proof of trafficking. The fact that there was no gain or profit involved in the distribution may have an effect in reducing the sentence that would be imposed depending on the nature of the drug. The more harmful the drug is, such as crack coccaine, heroine and crystal meths, the less impact a non profit trafficking would have on sentence. The fact that the defendant is an addict who is selling drugs to support his addiction can mitigate the sentence but only where the addict has taken serious steps to cure his addiction and cured it by the time he appears for sentencing.
One of the defences that the courts are increasingly seeing in these types of offences are Charter of Rights motions that the circumstances surrounding the seiure of the drugs constituted an unlawful search and seizure. The case studies below will illustrate some of the issues present in these types of offences.
The case of Drugger and his bad habit
Drugger had attended a party with two of his friends Mickey and Sam. All 3 were young men between ages 18 and 20. At the party they smoked a fair number of marihuana joints. At about 1.00 a.m., Drugger and his friends got in Drugger's car and proceeded to Drugger's home. Druugger placed 5 ziplop bags containing several grams of marihuana in his glove compartment. In another set of zipbags he had some rizla roll ups and tobacco, which he also stored in his glove compartment. A small folding knife lay on the front console.
Drugger was feeling high and drove well above the speed limit on the highway. Several police cruisers stopped the vehicle for a speeding offence. The police officers, after questioning drugger, ordered all of the young men to get out of the car and proceeded to search the vehicle. Upon finding the baggies in the glove compartment and the folding knife, they were all arrested and charged with possession of marihuana for the purpose. They were released at the police station on a form 11 with 2 conditions, not to be in possession of any controlled drugs and not to have contact with each other.
Drugger's mother called NLC Lawyers to represent all of the 3 defendants. We obtained the crown disclosure and after carefully reading it we contacted Penny, a criminal lawyer, to represent Mickey and Sam as there was a clear of conflict of interest in that they had defences that Drugger did not have which made it difficult for NLC to represent all 3 defendants.
It was clear that the police did not have reasonable and probable grounds to do the warranless search of Drugger's car on the basis of clear evidence in the police officiers notes that this was a traffic stop.
It was also clear that the crown had little evidence to prove that Mickey and Sam had any knowledge of the contents of the glove compartment or of the drugs secreted within. Penny therefore had a strong lack of knowledge defence that Drugger did not have, but both Drugger and her clients had the unlawful search defence.
NLC brought a section 8 Charter of Rights motion and conducted a blended voire dire at the trial. The trial judge had little difficulty excluding the evidence of the seizure of the marihuana as the police had unlawfully turned a routine traffic stop for speeding into a warrantless search of Drugger's vehicle. Ultimately, Penny did not have to rely on her lack of knowledge defence on behalf of Mickey and Sam as after the exclusion of the evidence of the seizure of the marihuana, the crown had no case.
Glenn, a lost and confused young man
Glenn had just turned 18 and was completing his grade 12 education. His parents were on the point of separating, and he had to endure the constant arguments between them. He was the only child and became very isolated and marihuana provided the crutch to help him escape form his miserable life. His school grades were deteriorating, and his complete indifference to everything around him caused him to do things which would ultimately attract police attention.
One Saturday afternoon he was walking in the local park, openly smoking a marihuana joint. A police officer approached him and smelling the distinct aroma of marihuana had reasonable and probable grounds to arrest him for possession. The officer demanded to search his duffel bag and Glenn consented.
The officer's search of the bag disclosed a large bag that contained 7 smaller bags that each contained 2 grams of marihuana. Glenn was arrested and charged with possession of marihuana for the purpose and was released at the police station. Glenn's father called NLC Lawyers. When we examined the crown disclosure, it became clear that Glenn really did not have any viable defences. Glenn admitted that he was an addict but that the seven bags of marihuana in his duffel bag were for his personal consumption.
The crown considered the charges as being serious in light of the fact that Glenn was in possession of 14 grams of marihuana and that the seven bags suggested that he was trafficking. NLC set to work gathering documents to assist Glenn. After a thorough intake interview with Glenn, it became apparant that Glenn was suffering from a number of issues which was likely to cause him to reoffend again. However, Glenn was sincere when he said he wanted to change his life around by getting rid of the addiction and rebuilding his life.
We put him on a drug addiction counselling program. We contacted one of the psychiatrist that we regularly used and sent him to her for an assessment. We also encouraged his parents to attend marriage counselling. We did things which went beyond our role as defence attorneys in order that both Glenn and his family could have a happier and more peaceful life. The results of our endeavors bore fruit. The psychiatric assessment disclosed that Glenn was suffering from depression and he was prescribed anti-depressant medication. The addiction counsellor indicated in a comprehensive report referring to the psychiatric intervention that Glenn was on the road to recovery from his drug addiction. Unfortunately, the marriage counselling by his parents made it clear that they had to separate, and it was agreed that Glenn would live with his mother in a more peaceful environment.
We obtained letters from both parents indicating their support and understanding of Glenn's situation. We also encouraged Glenn to do voluntary work at the local youth centre. The leader at the centre wrote a letter commending Glenn for his kindness and energy in helping some of the troubled youths at the centre. We provided all of the reports and letters to the crown prior to our resolution meeting. The crown was overwhelmed with sympathy for Glenn and respected the great efforts that Glenn had made to rehabilitate himself. The crown agreed to a joint submission for an absolute discharge on a guilty plea to possession only.
Glenn, a year after this incident is attending university where he is majoring in Psychology and Social Work. He has a strong and peaceful relationship with his mother and father. He has a stable relationship with a girl and has a group of great friends at University.
Raj Napal and NLC believes in helping our clients, not only achieve a result in their criminal matters, but also in becoming valued and healthy members of our society.