Monday, May 30, 2016


Although the media is full of talk about the imminent legalization of the possession of small amounts of marihuana in Canada, the reality is that we may still be at least a couple of years away from legislation coming into force, that growing or selling your own marihuana will probably remain offences, and that courts will continue to be clogged with those accused of possessing, selling, producing or importing a host other recreational pharmaceuticals. 

Being investigated, charged or going through the court process for a drug offence can be a very stressful life event. I served for many years as a Federal Crown drug prosecutor, and now defend those being investigated for or charged with drug offences. I've trained the police on how to properly draft and execute drug search warrants and wiretaps, make drug-related arrests and take statements from those implicated in drug offence. I've even published a series of books called The Investigator's Legal Handbook related to these issues. Being well informed is your best defence to a drug charge. Here I give you the four tips you need to follow to survive a drug charge or investigation. 

Tip 1 - Say Nothing other than Identifying Yourself

Don't say anything to the police, other than giving them your correct name. And if you're driving, you're going to need to produce a driver's licence, vehicle insurance and registration documents. 

Don't try to talk your way out of the situation. Don't deny anything. Don't admit to anything. Don't agree to let the police search anywhere. But follow their directions and be polite to them. 

Whatever you say will be used against you later. Even if you deny everything, that could later be used against you. Trust me. I've seen it all before. 

Regardless of whether you're walking along the street, driving in a vehicle, or sitting at home watching television, when the police come knocking, say nothing. Follow this tip, and the police will only be left with evidence of what they find or don't find. What others say or don't say about you usually doesn't count for anything in a criminal court drug trial, unless it's a police agent or police officer who is testifying. But what you personally have told the police counts for a lot. 

Don't think even if the police aren't making a recording of what you're saying, or aren't writing it down in a little black notebook, that it can't later be used against you. Say nothing. That's your right, so take full advantage of that right.

However, don't try to obstruct the police in doing their jobs. If they've got a warrant to search your house, let them get on with their job of searching. Let your lawyer later figure out if it was a valid or invalid warrant. But you don't need to point anything out to the police. Resist identifying items for the police, even if the police tell you that will save on their messing up your house. 

Same thing in a vehicle - no need to hand anything over. If they're going to search your vehicle, they will search. Nothing you say or don't say will change things, as tempting as it might be to say something. 

Likewise if you're walking down the street. Don't become trapped by the "have you got anything on you that you shouldn't have?" question. And its companion request: "if you do, hand it over." Many of my clients assume that by being cooperative, the police will just let the matter drop and send them on their way. But often what happens is that they've dug themselves into a self-incrimination hole and get charged with drug offences. Whereas if they had said and done nothing (other than giving their names), the police may have had no legal authority to search. 

Tip 2 - Talk to a Lawyer ASAP

In some personal disputes, lawyering up early on only aggravates the dispute. But being criminally investigated or charged is a completely different situation. There, you'll want to consult a lawyer as soon as possible. 

A little bit of legal advice can be a bargain in protecting your rights. That advice might mean a police investigation goes nowhere, that less serious charges are laid - for instance possession instead of possession for the purpose of trafficking - or if a court case does proceed that you haven't helped the police make the case against you. 

You shouldn't wait to talk to a lawyer until you've been charged. Some drug investigations take a while, and there may be things you can do to protect your rights at an early stage of the investigation. Your lawyer might talk to the police for you to ask about the scope of their inquiries. Your lawyer might be able to work out a deal for you to avoid you getting charged with anything. Your lawyer might be able to get some charges dropped. Or your lawyer might go to court for you to get back seized money or other assets. 

Tip 3 - Be Personally Informed About Drug Laws

Informing yourself in a basic sense about drug laws is the best way you can make intelligent decisions about your legal defence. There's a lot of clutter - like hundreds of years of the common law of evidence and dozens of years of constitutional rights law - that makes it seem really complicated, and for which you definitely need a lawyer. But I can sum up the basics for you quickly.

There are principally 5 types of drug offences (all under what's wordily known as the Controlled Drug and Substances Act): possession, possession for the purpose of trafficking, trafficking, production, and importation. The type of drug involved might make the penalties for any of these offences more severe, but mostly don't alter their inherent character. "Conviction" for any of them will gives you a criminal record, and could cause you a lifetime of hassles crossing the U.S. border and applying for jobs within Canada until you are able to obtain a pardon (now unpoetically called a "record suspension"). So you really, really, really want to avoid a conviction. 

There are three ways to do that. 

One, convince the Crown to drop the charges. Good defence lawyers are capable of doing this. It might not happen that often, but it's usually your best shot to make everything go away. 

Two, plead guilty and convince a judge to give you what's known as a "discharge." It's a finding of guilt, but no conviction is entered. So if you're later asked by anyone, "have you ever been convicted of a criminal offence," you can truthfully say "no." Again, a good defence lawyer might be able to obtain this for you - but it will depend on the type of offence and type of drug you are pleading to.

Three, take your case to trial. You might have a viable defence, because the burden of proof beyond a reasonable doubt is entirely on the Crown. You have to prove nothing. The Crown has to prove knowledge and control and possibly other elements. You might even have a Charter of Rights defence if your rights were violated. There sometimes isn't much downside to taking a drug case to trial other than the legal fees if the sentence imposed after trial isn't much different than the sentence you would have received after a guilty plea. A good drug defence lawyer will not be afraid to take your case to trial so long as there is some viable defence to present. 

TIP 4 - Don't Plead Guilty if You're Not Guilty

I often have clients stuck in the system. They're understandably stressed out by their drug charges hanging over their heads for months on end. They want the process over with. They have a good defence, but they can't take the waiting anymore. So they tell me, "look Gordon, I didn't do it, but I want to plead just to get it over with." But it's not ethical for any lawyer to help you with such a plea. Lying to the court is an offence. If you didn't do it, you just need to hang in there. You'll be stuck with a conviction for life, so ultimately waiting a year to have your trial day in court is worth it. Trust me, I'm a lawyer. 


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