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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. K.A. – Surrey Provincial Court

Charge: Assault Causing Bodily Harm.
Issue: Whether the complainant and the Crown witnesses gave reliable and crdible evidence at trial.
Result: After vigorous cross examination, the trail judge accepted Mr. Gauthier's submissions that Crown counsel had failed to prove its case. Not guilty verdict. No criminal record.

R. vs. X.L. – Vancouver Provincial Court

Charge: Assault (domestic).
Issue: Whether the information police provided to Crown counsel would cause Crown to conclude there was a substantial likelihood of obtaining a conviction.
Result: Mr. Mines provided information to Crown on our client's behalf. He was able to persuade Crown that our client was in fact the victim of an assault and was acting in self defence. No charges were approved. No criminal record.

R. vs. M.S. – Vancouver Provincial Court

Charges: Criminal Harassment (domestic).
Issue: Whether our client's mental state was such that Crown counsel could prove that she had the necessary level of intent to be convicted of a criminal offence.
Result: Mr. Gauthier was able to provide our client's medical documentation to Crown which resulted in Crown deciding not to proceed with the prosecution. Stay of proceedings. No criminal record.

R. vs. J.X. – Vancouver Provincial Court

Charges: Driving while prohibited (MVA).
Issue: Whether the delay in approving the charge was relevant to our client's right to a speedy trial.
Result: Mr. Mines was able to persuade Crown counsel to proceed on the lesser offence of driving without a valid driver's licence. Rather than a 12 month driving prohibition and 10 penalty points, our client was sentenced to a 3 month driving prohibition and received only 3 penalty points.

R. vs. Q.B. – North Vancouver RCMP investigation

Charges: Sexual assault.
Issue: Whether or not the acts complained of were consensual or not, and whether it was in the public interest to proceed with a criminal prosecution.
Result: Mr. Mines provided further information to th einvestigator on our client's behalf that ultimately led to police declining to recommend any criminal charges. No charge was approved. No criminal record.

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

Charges: Assult (domestic).
Issue: Given the rehabilitative steps we were able to guide our client through, whether it was in the public interest for Crown counsel to continue the criminal prosecution.
Result: Based on the information Mr. Mines provide regarding our client, Crown directed a stay of proceedings bringing the matter to an end. No criminal record.

R. vs. E.E. and B.L. – Insurance Fraud Investigation

Charges: Fraud; misrepresentation.
Issue: Whether it was in the public interest to proceed with a criminal investigation and prosecution.
Result: Mr. Gauthier was able to negotiate a civil settlement on our clients' behalf resulting in an end to the matter. No police investigation. No criminal record.

R. vs. S.G. – North Vancouver Provincial Court

Charges: Assault (x2). Issue: Whether our client was involved in a consensual fight; used reasonable force in defending himself, or was guilty of two counts of assault. Result: At the conclusion of  a three day trial and hearing Mr. Gauthier's submissions on our client's behalf, the trial judge found our client not guilty on both counts. No jail. No criminal record.

R. v. K.T. – Delta Police Investigation

Charges: Criminal Harassment.Issue: Whether it was in the public interest to proceed with a criminal prosecution.
Result: Mr. Gauthier was able to provide the police investigator with information about our client and the circumstances of the incidents that led to the discontinuation of the investigation. File closed. No criminal charges recommended.

R. vs. G.P. – New Westminster Provincial Court

Charge: Theft Under $5000 (from employer).
Issue: Given the rehabilitative steps we were able to guide our client through, whether it was contrary to the public interest for the court to grant our client a conditional discharge.
Result: Crown counsel's position was that our client should be sentenced to jail but after considering our client's positive pre-sentence report and Mr. Mines' submissions on our client's behalf, the court granted a conditional dischege. No criminal conviction.

R. vs. S.A. – North Vancouver Provincial Court

Charge: Assault (domestic).
Issue: Given the rehabilitative steps we were able to guide our client through, whether there was contrary to public interest for  our client to be granted a conditional discharge.
Result: Mr. Gauthier was able to persuade Crown to not proceed on a  breach of bail allegation; to agree to not seek forfeiture of our client's firearms, and to make a joint submission for a conditional discharge with probation. No criminal conviction.

R. vs. R. A. – Vancouver Provincial Court

Charge: Fear of safety allegation (Peace Bond Application).
Issue: Given the information we were able to provide to Crown counsel, whether it was in the public interest to proceed with the Peace Bond application against our client.
Result: Mr. Gauthier was able to persuade Crown counsel to enter a stay of proceedings so that our client was no longer subject to any of the restrictive conditions he was bound by.

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.