Common Defences for Drug Production Charges
With every drug offence charge, common defences are typically not having knowledge or control over the drug and constitutional challenges.
The first may be a matter of proving the accused did not know that the drug was in fact a drug governed by the Controlled Drugs and Substances Act or that the accused had no control of producing the drug.
The second, which is arguably the strongest defence in a drug charge, is a constitutional challenge. What this means is that the accused’s constitutional rights, under the Canadian Charter of Rights and Freedoms (Charter), was violated in the process of either the search, arrest, or surrounding circumstances. If the violation is serious enough, it can lead to certain evidence against you being excluded.
The right against unlawful search and seizure, governed by section 8 of the Charter, is used frequently when defending against drug investigations. The section states, “Everyone has the right to be secure against unreasonable search or seizure”.
So what is a search and seizure? An inspection is a search, while a taking is a seizure, where a person has a reasonable privacy interest in the object or subject matter of the state action and the information to which it gives access (R. v. Tessling). An example is an officer coming into a home without a warrant, and it is unreasonable.
A search or seizure will be reasonable where it is (1) authorized by law; (2) the law itself is reasonable; and (3) the manner in which the search is carried out is reasonable (R. v. Collins). Therefore, if an officer does not have a warrant and kicks down your door, it would not be considered reasonable.
Recently, there has been a lot of discussion in case law about a section 8 Charter challenge, and it is important to obtain a defence lawyer so they can properly assess if this defence is applicable to your case.
With the new Cannabis laws in affect, now governed separately by the Cannabis Act, adults over 18 years of age or older are legally allowed to grow licensed seeds and have up to 4 cannabis plants per residence for personal use. An issue arises with what can be considered “personal use” in the view of an officer.
Under section 12(4) of the Cannabis Act, it is prohibited for an individual who is 18 years or age or older to cultivate, propagate or harvest,
(a) A cannabis plant that is from a seed or plant material that they know is illicit cannabis; or
(b) More than four cannabis plants at any one time in their dwelling house.
If an individual produces cannabis beyond personal cultivation limits or with combustible solvents, they can face maximum imprisonment of 14 years. The minimum punishment is a fine of not more than $5,000 or imprisonment for a term of not more than six months. If it is an organization who is growing the marijuana illegally, they will face a minimum fine of $100,000.
Unlike cannabis, any drug listed in the Schedules of the Controlled Drugs and Substances Act is illegal, and cannot be produced.
As stated in section 7(1), “except as authorized under the regulations, no person shall produce a substance included in Schedule I, II, III, IV, or V”. Punishment differs on which substance is produced, and which Schedule it falls under.
If an individual produced a substance included in Schedule I, there is a maximum punishment to imprisonment for life and a minimum punishment of imprisonment for a term of three years if they meet certain factors, and if not, a term of two years. Factors include:
(a) The person used real property that belongs to a third party in committing the offence;
(b) The production constituted a potential security, health or safety hazard to persons under the age of 18 years who were in the location where the offence was committed or in the immediate area;
(c) The production constituted a potential public safety hazard in a residential area; or
(d) The person set or placed a trap, device or other thing that is likely to cause death or bodily harm to another person in the location where the offence was committed or in the immediate area, or permitted such a trap, device or other thing to remain or be placed in that location or area.
If an individual produced a substance in Schedule II, there is a maximum punishment of imprisonment for life, and to a minimum punishment of imprisonment for one year if the production was for the purpose of trafficking, or a minimum term of 18 months if the purpose was for trafficking and included the factors above (a-d).
If an individual produced a substance in either Schedule III or V, there is a maximum punishment for a term not exceeding ten years, and a minimum punishment of imprisonment for a term not exceeding eighteen months.
If an individual produced a substance in Schedule V, there is a maximum punishment for a term not exceeding three years and a minimum punishment not exceeding one year.
A drug production charge can have a wide range of factors that should be discussed with a lawyer. With that being said, a lawyer cannot accurately give a client the cost of fighting their case without knowing the details in its entirety. Any criminal charge can be detrimental, as a criminal background stays with a person for life. Contacting a defence lawyer immediately after being charged is the most appropriate action.
A production charge is a complex and requires the attention of a defence lawyer as soon as possible. A production charge largely depends on what substance was produced, the purpose of production, and certain factors of the production listed in section 7(3) of the Controlled Drugs and Substances Act.