Top 5 Drug Trial Defences That Work - #1 The Drugs Aren't Mine

Everyone has the right to a fair trial in Canada, regardless of what they're accused of. In my opinion, most people do receive a fair trial, but they're often unsuccessful in fighting charges because they don't use defences that stand any chance of success. There's a big difference between a "fair" trial and a "successful" trial. One you suffer through, the other you win!

Over my two decades in the business, I've seen lots of defences that are destined for failure from the start, and a few hopeful defences that really do stand a good chance of working. While luck should have nothing to do with the success of your defence, the judge (or jury) you draw for trial is luck of the draw, and will be the final determining factor of whether or not the court buys your defence. It's a reality that some judges (and juries) are more likely to convict those accused of drug (or other types of) offences than other judges (and juries). You can't control who hears your case, but you can control the defence(s) you raise. 

This is the first in a series of five blog posts of my top five tips on what defences defences could work for you, though be aware that you'll still need to fit your factual situation into one or more of these defences to make them work.

1. The drugs aren't mine. In order to convict you of drug possession or possession for the purpose of trafficking, the court needs to be convinced beyond a reasonable doubt that you had legal possession of the drugs in question. Generally, that requires "knowledge" and "control."

Meaning, that if you truly didn't know the drugs were where the police found them, and such knowledge can't reasonably be inferred from the surrounding circumstances, then the court must acquit you. Likewise, even if you knew about the drugs but had no control whatsoever over the location in which they were found, the court must again acquit you.

For this defence to work, your claim that the drugs don't belong to you must be reasonable, and must completely negate knowledge and control. Meaning, the "I was just holding them for a friend" story doesn't cut it, because you'd would still have knowledge and control ("ownership" isn't a required element here). Likewise, the defence will fail if you admit to smoking a joint as a passenger in a vehicle, since you clearly had some knowledge and control. 

Where it works best is if: 

• the drugs are found in a vehicle that isn't registered to you, and you aren't driving, or can reasonably say you just borrowed the vehicle from a friend;
• the drugs are found in clothing that doesn't belong to you (but you happen to be wearing), and you can again reasonably say you just borrowed that clothing from a friend; 
• the drugs are found in a bag that doesn't belong to you, and you have a reasonable explanation for why you have no knowledge of its contents but are are nonetheless holding it;
•  the drugs are found in a residence where you have no access to the part of the residence where the drugs are located.

Anyone hoping to make "the drugs aren't mine" claim work as a defence will probably need to testify in their own defence. In order to be believed, it will help if you don't have a criminal record. 

I've seen the defence work best in front of juries in the international airport importing context, where for example an accused with no criminal record and good background gave heartfelt honest sounding testimony that she really didn't know how something like a kilo of cocaine wound up in her luggage. 

Next, we'll explore number 2 of the top 5 drug trial defences that work, 2. "You Needed a Warrant to Search ..."