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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. V.B. – Vancouver Provincial Court

.Charges: Assault; Uttering Threats (domestic).
Issue: Given the rehabilitative steps we were able to guide our client through, whether it was in the public interest to proceed with the criminal prosecution.
Result: Mr. Gauthier was able to provide information to Crown counsel on our client's behalf which resulted in Crown deciding to enterr a stay of proceedings on both charges. Stay of proceedings. No criminal record.

R. vs. T.C.C. – Richmond Provincial Court

Charges: Assault of a Peace Officer.
Issue: Whether it was in the public interest for our client to be granted a discharge for his actions in spitting in the face of an RCMP officer at the Vancouver Airport.
Result: Mr. Gauthier presented information to the Court and after hearing his submissions, the Court granted our client a conditional discharge. No criminal record.

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

Charge: Theft Under $5000.
Issue: Whether Crown could prove the number and value of the electronic devices they alleged our client stole from his workplace.
Result: Mr. Mines was able to persuade Crown counsel to allege that the theft involved  only 7 devices worth only $1000. After hearing Mr. Mines submissions, the Court granted our client a conditional discharge. No criminal conviction.

R. vs. M. G. – Sechelt RCMP investigation

Charges: Criminal harassment; Distributing intimate images without consent.
Issue: Whether the Crown could prove the circumstantial evidence they sought to rely on and whether jail was the  appropriate sentence.
Result: Mr. Gauthier was able to convince Crown counsel to not rely on much of the aggravating evidence and, on our client's guilty plea to not seek a jail sentence. After hearing Mr. Gauthier's submissions, the Court granted our client a suspended sentence with probation. No jail.

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

Charges: Criminal harassment; Distributing intimate images without consent.
Issue: Whether the Crown could prove the circumstantial evidence they sought to rely on and whether jail was the  appropriate sentence.
Result: Mr. Gauthier was able to convince Crown counsel to not rely on much of the aggravating evidence and, on our client's guilty plea to not seek a jail sentence. After hearing Mr. Gauthier's submissions, the Court granted our client a suspended sentence with probation. No jail.

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

Charge: Assault (domestic).
Issues: Whether there was a substantial likelihood of a conviction and whether it was in the public interest to proceed with the prosecution.
Result: Mr. Mines was able to provide information to Crown counsel that resulted in Crown electing to stay the proceedings and to end the prosecution. No criminal record.

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

Charge: Assault with a weapon.
Issue: Whether there was a substantial likelihood of a conviction.
Result: Mr. Mines was able to provide information to Crown counsel which resulted in Crown deciding to end the prosecution not approve any charges.  No criminal record.

R. vs. J.L. – UBC RCMP Investigation

Charges: Assault.
Issue: Whether there was a substantial likelihood of obtaining a criminal conviction and whether it was in the public interest for police to recommend charges.
Result: Mr. Gauthier was able to provide information to police whic resulted in police closing their investigation. No charges recommended. No criminal record.

R. vs. T.A. – West Shore RCMP investigation

Charge: Assault (Domestic).
Issue: Whether it was in the public interest for the Crown to proceed with a criminal prosecution.
Result: Mr. Gauthier provided information to Crown Counsel that convinced them not to approve charges against the client. No criminal prosecution. No criminal record.

R. vs. J.S. – Surrey Provincial Court

Charge: Sexual Assault (reduced to common assault.)
Issue: Whether Crown counsel could prove that our client touched the complainant for a sexual purpose.
Result: Mr. Mines was able tp persuade Crown counsel that our client did not intend to touch the complainant in a sexual manner. The Crown agreed to proceed on the lesser charge of common assault and, after hearing Mr. Mines' submissions, the Judge granted our client a conditional discharge. No criminal conviction. No jail. No sex offender registry.

R. vs. N.R. – Sechelt Provincial Court

Charge: Assault Causing Bodily Harm.
Issue: Whether it was in the pubic interest for our client to be sentenced to a conditional discharge for this offence which resulted in a serious facial cut to the complainant.

R. vs. S.K. – Surrey Provincial Court

Charges: Assault; Assault with a Weapon, Breach of a Release Order.
Issue: Whether our client could be released on bail given Crown's concerns for his willingness to attend court and potential to commit further offences.
Result: Mr. Johnston was able to persuade the Judge to release our client on the least onerous conditions.

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.