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Possession of Drugs

The Charge

The Controlled Drugs and Substances Act sets out, under s. 4, that it is an offence to possess substances such as cocaine, heroin, fentanyl, MDMA, GHB, LSD, psilocybin mushrooms, barbiturates and anabolic steroids. The Cannabis Act sets out under s. 8, that it is an offence to possess cannabis unless as authorized by that Act. Not only is it possible to receive jail time for simple possession of hard drugs; it is still possible to receive jail time for simple possession of cannabis if, for example, the cannabis is from an illicit source and the amount is greater than 30 grams.

Having a conviction for a simple drug possession charge can have very serious consequences. It may be a bar to certain types of employment. A conviction will prevent entry to the U.S.A. as a visitor as the United States Border Authority views drug possession charges as a “crime of moral turpitude.”

The Investigation

Although some simple possession charges start with the police targeting a suspect, the majority of these charges arise out of a chance encounter between police and the accused. For example, police may pull over a vehicle for a traffic violation and they may smell cannabis or see a baggie with a powdery substance on the console. Similarly, police may see a hand-to-hand transaction in front of a bar and arrest both the seller and the buyer. Generally, unless the accused has other outstanding charges, police will release a person charged with simple possession on a Promise to Appear in court on a date some 5 or 6 weeks in the future.

A portion of simple possession charges start out as possession for the purpose of trafficking charges. To prove possession for the purpose of trafficking, the Crown will usually rely on a police expert witness who will testify that the way the drugs were packaged and possessed tends to suggest that they were intended to be distributed or sold. Our experience as drug defence lawyers enables us, in appropriate cases, to argue that the drugs were not intended to be trafficked, and thereby allow our client to resolve the matter on the lesser offence of simple possession.

Recent Successes

R. vs. A.J. – Insurance Fraud Investigation

Charges: Fraud Over $5,000 Investigation.
Issue: Given that we were able to negotiate a civil settlement of this $13,000 insurance claim overpayment, whether it was in the public interest to proceed with a criminal prosecution.
Result: Mr. Mines was able to negotiate a settlement of the alleged fraudulent claim. We obtained a full Release, ending the matter in both the civil and criminal context. No further liability. No criminal charges.

R. vs. M.M. – New Westminster Police Investigation

Charge: Sexual Assault Investigation.
Issue: Whether there was sufficient evidence for police to recommend that criminal charges be approved.
Result: Mr. Gauthier was able to guide our client through the police investigation, and to provide police with information on our client's behalf. Ultimately, police decided not to forward any charge to Crow. No charges approved. No criminal record.

R. vs. C.T. – Insurance Fraud Investigation

Charges: Fraud Under $5,000
Issue: Given our client's repayment of the alleged fraudulent health insurance benefits, whether it was in the public interest to proceed with criminal charges.
Result: Mr. Gauthier was able to settle the matter civilly on our client's behalf without any further civil or criminal proceeding. No charges were approved.

R. vs. A.S. – Port Coquitlam Provincial Court

Charges: Assault (domestic) Reduced to Peace Bond.
Issue: Given the rehabilitative steps we were able to guide our client through, whether it was in the public interest to continue with the criminal prosecution.
Result: Mr. Mines was able to steer our client through a course of rehabilitation and persuaded Crown to stay the assault charge and to allow our client to enter into a Peace Bond.

R. vs. G.V. – Vancouver Provincial Court

Charges: Assault; Uttering Threats.
Issue: Whether there was sufficient evidence for criminal charges to be approved.
Result: Mr. Mines was able to provide Crown counsel with additional information and persuaded Crown that it was not in the public interest to proceed with any criminal charges.

R. vs. M.H.E. – Abbotsford Provincial Court

Charges: Assault.
Issue: Whether it was in the public interest to proceed with a criminal prosecution.
Result: Mr. Mines was able to provide information to Crown counsel regarding our client's circumstances and was able to persuade Crown that there was no public interest in proceeding with a criminal prosecution. No criminal record.

R. vs. E.C. – Vancouver Provincial Court

Charges: Sexual Assault; Assault.
Issue: Given the rehabilitative steps we guided our client through, the nature of the sex assault itself and our client's true remorse, whether a jail sentence or house arrest were required.
Result: Mr. Mines was able to persuade Crown counsel to make a joint submission for a conditional discharge. After hearing Mr. Mines' submissions on our client's behalf, the trial judge granted our client the discharge. No jail or house arrest. No criminal conviction.

R. vs. N. O. – Courtenay Provincial Court

Charges: Assault Causing Bodily Harm x2; Assault x3.
Issues: Whether there was a substantial likelihood of a conviction.
Result: Mr. Gauthier was able to provide information to Crown counsel which cast the complainant's credibility and reliability into doubt. The Crown made an adjournment application which Mr. Gauthier opposed. Mr. Gauthier was able to persuade Crown to stay all of the criminal charges upon our client entering into a Peace Bond. No jail; No criminal record.

R. v. K.T. – Insurance Fraud Investigation

Charges: Fraud Under $5000.
Issue: Given our client's repayment of the alleged fraudulent health insurance benefit claims, whether it was in the public interest to proceed with criminal charges.
Result: Mr. Mines was able settle the matter on our client's behalf and received a Release from the insurer ending the matter without any further civil or criminal proceeding. No charges were approved.

R. vs. A.H. – Vancouver Supreme Court

Charges: Sentence Appeal - Forcible entry; Assault with a weapon.
Issue: Whether the Supreme Court would uphold our client's conditional discharge that was granted to our client by the Provincial Court.
Result: After hearing Mr. Gauthier's submissions on this sentence appeal, the Supreme Court justice agreed with Mr. Gautier and ruled that the sentence was appropriate in all the circumstances. The court dismissed the Crown's appeal. The conditional discharge was upheld.

R. v. J.F. – Dawson Creek Provincial Court

Charge: Sexual Assault.
Issue: The credibility of the complainant's testimony during this three day trial.
Result: After vigorous cross examination of the complainant and another Crown eyewitness, Mr. Gauthier made submissions which were accepted by the trial judge. The court found our client to be not guilty and aquitted him of the charge. No jail. No criminal record.

R. vs. D.C. – Port Coquitlam Provincial Court

Charges: Sexual Assault (x2).
Issue: In the circumstances of these historic charges and our client's rehabilitation, whether a community based sentence was appropriate.
Result: Notwithstanding that Crown counsel sought a 20 month jail sentence, the trial judge agreed with Mr. Mines' submission that, in the circumstances of our client's genuine remorse and rehabilitation, it was appropriate to  grant a conditional sentence of 21 months. No jail.

The Defence

Unreasonable Search

Under s. 8 of the Charter, everyone is guaranteed the right not to be searched unreasonably. The role of defence counsel is to analyze the actions of the investigating police officer to test whether they have, in fact, conducted the investigation and search as authorized by the Charter. Of course, every situation that precedes a search and seizure is different and there can be many nuanced factors. Generally, however, police must have more than a mere hunch or suspicion that a person is in possession of illicit drugs. They must have reasonable and probable grounds to believe the person is presently in possession of illicit drugs. Where police overreach their authority and search someone without the necessary grounds, we will apply to the court under s. 24 (2) of the Charter to have the tainted evidence excluded from the trial. Without the drug evidence, there will be insufficient evidence to convict.

Alternative Measures

We’ve had many successful cases where we’ve been able to persuade Crown counsel to not approve simple drug possession charges. We are able to achieve this excellent result when clients contact us early in the process, prior to Crown receiving the police file. In such situations, we will obtain a full background briefing from our client including their family and work circumstances, any health, financial or mental health issues that impact their decision to use illicit drugs. Where we are able to persuade Crown that it is appropriate, rather than prosecute our client, they will allow them into the Alternative Measures Program which is, literally, an alternative to the court system. Alternative Measures allows a person to take responsibility for their offence without obtaining a conviction and a criminal record. Alternative Measures may involve conditions such as community work service and counselling. The impact is certainly less severe than a criminal conviction for drug possession.

Start with a free consultation.

If you are being investigated by police or if you’ve been charged with a criminal or driving offence, don’t face the problem alone. Being accused of an offence is stressful. The prospects of a criminal record or jail sentence can be daunting. Even if you think there is no defence, we may be able to help. To schedule a free initial consultation with one of our Vancouver lawyers, contact us now.