Monday, March 30, 2015

Top 3 Reasons Why Possession for the Purpose Might Just be Simple Possession

Canada's Trends in Drug Offences (which have continued until today); credit: Statistics Canada

Drug offence consequences are are driven by type and number. What type of drug? How much of that drug? In my early days as a federal drug prosecutor in Toronto, we mostly only saw three drugs: marihuana, cocaine, and heroin. And the Narcotic Control Act was a fairly straight forward piece of legislation.

Today, the newer Controlled Drugs and Substances Act has become a convoluted morass of moving schedules, and mandatory minimum punishments contingent upon a panoply of factors. Legally or illegally manufactured drugs have also become a much greater focus of enforcement resources.

The greatest legal problem in drug enforcement always was, and remains, separating the users from the traffickers. The law draws huge distinctions between the two. And the advent of drug treatment courts has arguably only widened the gap between users and traffickers - even though the reality is that sometimes traffickers use and users traffic.

The difference between the two types of accused is likely a far bigger deal than the difference between types of drugs. The possessor might get a discharge or a fine, whereas the PforP person might wind up in jail for years.

So legally speaking, how does one tell the difference between a user possessing marihuana, or cocaine, or oxy per personal use, and a trafficker who isn't caught selling, but is claimed to be possessing for the purpose of trafficking?

Certainly this isn't something judges can just take judicial notice of. And the huge problem is that there isn't any science behind the theories. Instead, prosecutors rely on "experts," who are usually police officers with experience in drug investigations. The problem with the "experts" is that there are no academic qualifications you can amass - as is usually expected for qualifying other kinds of experts. Drug experts will produce CVs talking about the numbers of cases they've done, or numbers of times they've been an expert in court, but is this really sufficient?

Here I offer you the top three reasons why possession for the purpose might just be simple possession.

1. It's possible a heavy user can use a lot of the drug, especially depending on how it's being consumed. The "experts" testifying about who is a user and who is a trafficker in theory aren't users themselves. This means their knowledge is limited. Very large amounts of a drug might be consumed by a user if it is being mixed with other substances. However, you might need to call your own "expert" to make sure the judge hearing your case understands this point.

2. Indicia of trafficking is weak. When I started in the mid-90's as a drug prosecutor, we claimed possession of a cell phone or pager (in part) made you a drug trafficker! And god help you if you had both a cell phone and a pager. We were always looking for little tell tale signs of trafficking, that in reality might not have been signs of much. Cryptic debt lists (that were hard to figure out what they amounted to). Packaging (certainly there was no retail sale UPC code proving it was for sale). Claimed indicia of trafficking might not amount to much, but a court need to be educated that huge leaps of reasoning from possession to trafficking should not rest solely on scraps of paper scribbles.

3. No expert can honestly say that the drug isn't for personal use. Defence counsel sometimes don't challenge drug expert qualifications. But personally, I make a practice of doing so because of the thin knowledge and training base that might be underpinning their "expertise."

For experts in non-drug cases, you'll often be looking at people with PHDs, who've written books on the topic of their expertise, and devoted decades of their lives to learning the subject. These are people for whom you might have difficulty challenging credentials.

But for drug experts, the court is being asked by the prosecution to put a lot of faith in the conclusions of one person who might have never been previously qualified as an expert, who presumably doesn't use drugs himself, and can't base his conclusions on peer reviewed scientific data.

That an ounce could get you a fine and eight ounces could get you years in jail is a weighty issue for any court to decide, and judges must be fully informed about how there is no magic weight line which once crossed turns possession into possession for the purpose of trafficking. Instead, as with many things in life, there is a world of factually grey zones from which legally definitive conclusions should not be drawn.

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