DRUG OFFENCES
If you are charged with a drug related offence do not plead guilty before you consult with one of our lawyers. At Kostman & Pyzer, Barristers, we have successfully defended numerous types of drug offences under the Controlled Drugs and Substances Act ranging from simple possession of a drug for one’s own personal use, to possession of drugs for the purpose of trafficking or trafficking in drugs. We have also successfully defended “conspiracy” drug charges. We realize all criminal allegations are serious to the person who is charged and their families. We defend all types of drug offences, from the young person caught with some marijuana for his personal use to more serious drug conspiracy cases involving harder drugs, like heroin or cocaine. Our law firm has extensive experience in this area of law. At Kostman & Pyzer, Barristers, we will make full answer and defence by raising every possible and realistic defence at your disposal. There may be a defence, technical or otherwise, that is available to you. Sometimes it takes a skilled practitioner to identify legal issues which can lead to a successful conclusion of a particular case. Furthermore, we may be able to challenge evidence that was obtained by arguing that our client’s basic rights under the Canadian Charter of Rights and Freedoms were infringed, and that the evidence obtained should be excluded or suppressed.
Our firm routinely utilizes Charter of Rights applications to exclude evidence based on arbitrary stops and illegal searches. Charges may be “stayed” pursuant to the Charter due to “unreasonable delay”, the delay between the date of the offence and the trial date. Search warrants may be challenged on the basis that the underlying information provided to a judge in support of the warrant was inaccurate or misleading. Searches may be challenged on the basis that the police lacked reasonable grounds to believe that a particular drug was present or that the police acted without a warrant.
Every drug case offers its own particular array of possible defences, including lack of knowledge of the presence of the drug and a lack of evidence on the issue of control of the drug. In certain cases, one may be able to argue that if the drug is not in plain view, and if a number of individuals are in a position to exercise control over the drug, it is impossible (proof beyond a reasonable doubt) to impute possession to a particular individual. These are all issues that may be raised at trial.
At Kostman and Pyzer, Barristers, we have the experience and resources to identify viable defences and Charter of Rights challenges available in a particular case, and we have the skill to successfully raise these issues at your trial.
Marijuana
Recently, an international study suggested that Canada was high on the list of countries in per capita marijuana consumption. Even the Association of Police Chiefs of Canada has recommended its decriminalization. However, in Canada, contrary to the view of many Canadians, possession of marijuana in any quantity is still a criminal offence contrary to the Controlled Drugs and Substances Act.
In the Toronto area, individuals charged with a first offence of possession of marijuana (for their personal use) will ordinarily be eligible for Drug Diversion where the charge is withdrawn by the Federal Crown Attorney upon the performance of a particular act, community service or charitable donation.
It is very important that individuals charged with such offences pursue the course of Drug Diversion rather than to merely plead guilty to an offence even if they are offered an absolute discharge or conditional discharge. Although a “discharge” is viewed as the equivalent of no criminal record in Canada, such a disposition may be a major impediment to travel in the United States. Client S. pleaded guilty to possession of marijuana in 1986 and received an “absolute discharge”. At that time, it was viewed as an excellent result due to the quantity of marijuana in his possession and the fact that he may have been driving his motor vehicle while smoking marijuana. Since 1986, M. has had to apply for a formal waiver every time he travels to the United States. The waiver application includes confirmation of employment and a letter from a medical practitioner attesting to the fact that S. is not a drug addict. To reiterate, the implications of even a “discharge” as a sentence for a drug offence may be serious.
Cultivation
Marijuana “grow” operations have become a regular fixture in the criminal courts. One sees everything from the home style operation (spare bedroom in the apartment) to the house converted for such use, or in larger cases “the farm”. The size of the operation in such cases is the primary determinant of the seriousness of the allegation. At the lowest level, where an individual grows for their own consumption and lacks a criminal record, the individual may be eligible for a “discharge” upon a finding of guilt. In the recent case of N, N’s apartment was the subject of a lawful search by firefighters. There had been a fire in the garage of his building which forced the evacuation of the apartment building. Firefighters, searching for occupants of the building who may have been physically unable to leave the building, stumbled upon the small “grow” in his apartment. The size of the operation was consistent with “personal use”. It was agreed that if N did 50 hours of community service prior to the plea, the Federal Crown would not oppose the imposition of a “discharge” for the offence.
As stated, the larger the “grow” operation the more serious the offence. Ordinarily, any individual who participates in a significant commercial “grow” whether as “gardener” or owner faces a custodial sentence.
Cocaine
The use of cocaine in powder and rock (crack) form is prevalent in today’s society. Cocaine powder use is viewed as serious, but less serious than the use of “crack” due to the addictive potential of crack cocaine. Some would argue that there is no such thing as the recreational crack user.
A person charged with possession of cocaine may be eligible for drug diversion in exceptional circumstances. More often, it can be an uphill battle to obtain a "discharge" for such clients, but it can be accomplished if the allegation is handled properly by a skilled criminal lawyer.
Trafficking
Individuals convicted of trafficking in a controlled drug (marijuana or cocaine) ordinarily receive jail sentences. “Conditional sentences” (a sentence of custody served in the community under some form of house arrest) are not uncommon. In the case of marijuana, there is a trend away from the imposition of custodial sentences for low level traffickers.
Individuals who traffic in street-level amounts of cocaine will ordinarily receive custodial sentences of between four to six months upon their first conviction. Sentences increase as the number of convictions grow.
At Kostman and Pyzer, Barristers, we have defended hundreds of drug cases of every kind, from minor to very serious. If you or any member of your family is charged with any drug offence, get the legal advice you need to make an informed decision. Although there may be some inconvenience and expense involved, the next time that you are stopped at an international border, you will be glad that you called us!
