TOP 5 DRUG TRIAL DEFENCES THAT WORK - #2 THE POLICE NEEDED A WARRANT TO SEARCH

Because drug offences are largely "victimless" crimes, meaning there's usually no one in whose interests it is to report them to the police, authorities rely heavily on intrusive investigative techniques to discover these offences. These intrusive techniques are also needed to obtain samples of the alleged "drugs" in order to test that they aren't in fact drywall compound or icing sugar. 

While warrants and privacy interests existed prior to 1982, the adoption and constitutional entrenchment in 1982 of s. 8 of the Canadian Charter of Rights and Freedoms (the protection against unreasonable search and seizure), combined with s. 24 of the Charter (authorizing a court to exclude evidence obtained in violation of the Charter) placed a new emphasis of the protection of privacy interests of Canadians against state intrusion. The most fundamental way to protect privacy is to require the state to obtain a warrant from an independent judicial official prior to conducting a search. 

Like a lot of legal things, when a warrant is and isn't required is not black and white, but rather occupies a realm of shades of grey. However, there is a clear pecking order of privacy interests where the greater the privacy, the more likely a warrant will be needed. In any situation where drugs are discovered through a search leading to criminal charges, it's possible to argue as part of a pre-trial Charter motion that a warrant should have been obtained prior to conducting the search, and that therefore the drugs should be excluded from evidence at trial. The usual consequence of no drugs in evidence will be a collapse of the prosecution's case. 

The most common situations of drugs being discovered through a police search are: (1) in a vehicle; (2) on a person or in something a person is carrying; (3) in a building. A warrant might be required to search any of those places. 

Warrant needed for a vehicle
For vehicles, police often claim that their search is "incident to arrest" and therefore a warrant isn't needed. But the law limits the scope of such searches to only relate to the reasons for the arrest. Thus police can't conduct a traffic stop, issue a speeding ticket for which no arrest would occur, and then poke around in a vehicle on a fishing expedition looking for drugs. 

Police will often claim a vehicle is being searched pursuant to "consent" from the occupant. While I completely understand the psychological pressure you might be under to say yes to the police question "do you mind if I take a peek in your trunk," just say no. Either they have authority, or they don't. Saying yes won't earn you any brownie points. 

Warrant needed for a person 
Searches of persons or the things they're carrying are also often justified under the "incident to arrest" banner. They key here to legality is there must be a valid arrest to start with. If not, a warrant may be required to search things being carried, like a gym bag. Usually one wouldn't obtain a warrant to search a person's clothing, but personal searches involving bodily integrity (like taking blood samples or x-rays) would almost always require a warrant.

Warrant needed for a building
Other than the human body, buildings or portions of buildings which the public usually don't have any access to tend to have the highest expectation of privacy. This is particularly so with residences. Even if the police are already in a building for another legitimate purpose, they can't just go poking around looking for evidence - they need to get a warrant. In extreme situations, they should be "freezing" the scene and getting a warrant, rather than later claiming exigent circumstances didn't permit obtaining a warrant. 

So arguing that a warrant was needed to search wherever drugs or related evidence was located remains a key part of any strong drug charge defence. You should consult a lawyer with experience in search warrants to obtain advice about whether such a defence could work for you. 

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 ..."

Top 5 Ways to Get a Good Deal on Your Drug (and Other) Offence Sentence

Unlike for other criminal offences, drug offence sentencing is really all over the map - literally, and figuratively! Sentences may be much higher in northern, remote and rural locations than they are in urban areas. And sentencing is also very variable for the same offences charged according type of drug and drug weight.

When I started at Old City Hall in Toronto as a Federal Crown drug prosecutor, our sentencing mandate for simple possession was pretty straight forward: discharges for marijuana, fines for cocaine, and jail for heroin. Trafficking and PforP merited much harsher punishments, but still laddered up in severity through the same three drugs.

Things are a bit more complicated now with the popularity of synthetic drugs, and a host of mandatory minimum sentencing provisions having been introduced into the Controlled Drugs and Substances Act. But for the majority of drug offences there remains no mandatory minimum - just a maximum. Those drug sentence maximums tend to be brutally high. As in, seven years imprisonment for simple possession high. But worry not, there are many things you can do to get a "good deal" on your sentence for a drug offence. These principles also work for non-drug criminal offences.

1. Plead Guilty. As a trial lawyer, I never like to overly encourage clients to plead guilty. I can almost always find a plausible defence to present at trial. But if you are convicted after trial, your sentence might be higher than if you pleaded guilty at a much earlier date. Sometimes, your sentence might be a lot higher (like double or triple the time). Sometimes, it won't be higher at all. But if you want to get things over with, and really did do what they claim you did (this is an important point, because lawyers can't ethically assist innocent people in pleading guilty - we MUST take those cases to trial), then a guilty plea will usually get you a better sentence deal.

2. Negotiate with the Prosecutor. Unfortunately, this is practically impossible to do if you're self-represented because prosecutors are afraid of you blurting out things to them that might later make them witnesses in your case. However, if you can afford to hire a lawyer, or get a legal aid certificate, or can take advantage of friendly neighbourhood duty counsel, then having that lawyer do some sentencing negotiations for you will usually pay off.

Negotiations involve the defence lawyer demonstrating to the prosecutor through other precedent setting cases, and your own personal circumstances, that you deserve a good deal (relatively speaking) on your sentence. Sometimes those negotiations will involve you pleading guilty in exchange for the prosecutor dropping charges against someone else (like your spouse), or in exchange for the dropping of some of the charges against you, or in exchange for you waiving your rights to things seized.

3. Hold a Judicial Pre-Trial. This is another one you'll need a lawyer to do for you, but holding what's known as a JPT is a great way to test drive a possible sentence in front of a judge. Because the ultimate sentence is left to the judge, and not the prosecutor, the JPT judge might actually offer you a much better deal than the prosecutor. Conversely, if the prosecutor has already offered you a good deal, you need to know if the judge will accept that deal. Judges "jumping" joint Crown-defence submissions on sentence after guilty plea is rare, but it happens. You don't want it to happen to you.

4. Perform Community Service and Charitable Giving Up Front. While sometimes community services and donations can be part of a sentence, you'll usually get bigger bang for your buck in performing community acts up front before you ever go before a judge for sentencing. It will impress the judge that you did so of your own free will, without any guaranteed payoff.

Performing community service of between 20 and 50 hours, and charitable giving of between $300 and $1000 dollars, will be the usual sweet spot range to aim for. For community service, make sure it is for a recognized charity or non-profit that is willing to give you a written record of your time there. What sort of organization it is can depend on where your own interests lie. For donations, make sure they are to registered charities. But usually you'll get to pick the one you like.

5. Provide Assistance to Police. This is always a touchy subject, as there can be serous risks to your personal safety in providing information to police on other criminal activity. Plus, unless you've got some very valuable information to offer, they're unlikely to sign any kind of assistance or immunity agreement with you (which only high level prosecutors can approve).

With most assistance to police, you're taking a shot in the dark, hoping the police will put in the good word for you with the prosecutor, and that it will reduce (but not eliminate) your sentence. It's also hard to gage at the end of the day if your assistance got your a good deal, or if it was through employing the first four techniques of plea, negotiation, JPT and community giving that the deal came about.

Are the Majority of Search Warrants Issued in Canada Actually Illegal?

It's well known that drug investigations involve the use of a lot of search warrants. There usually are no "victims" to report the alleged crimes, and activities take place behind closed doors.

Sometimes police can get away without having a warrant in a vehicle or pedestrian stop situation, though searches of vehicles and people incident to arrest on other grounds or based on the supposed informed consent of the targets run considerable risks of later being held to be invalid. But for buildings - particularly dwelling places - court issued warrants will almost always be required to enter and look for evidence except in very rare exigent circumstances cases.

Investigators have three prime duties when seeking and executing search warrants:

1. the pre-search duty of full and frank disclosure of all relevant information to a judge or justice sufficient to support the application for a warrant;

2. the during-search duty to execute the warrant in a respectful and non-abusive manner in accordance with its terms;

3. the post-search duty to properly care for the seized goods, and to report back to the issuing court on what was seized so that a determination can be made of whether the detention of each thing seized is justified.

Breach of any one of those duties can lead to an illegal search and seizure. Breach of the first duty can lead to an illegal warrant. Breach of the second duty can lead to an illegal search. Breach of the third duty may lead to an illegal detention. In any of those cases, the remedy could be return of the seized goods, exclusion of all seized evidence from trial proceedings, and even a judicial stay being imposed on the charges.

Usually, going after the legality of the warrant itself is the softest target, due to the fact that the majority of warrants out there were likely improperly issued and are in fact illegal. That's right, you heard that one correctly, the majority.

Don't take my word for it, take the word of three highly accomplished criminal lawyers (two of whom are now Ontario judges): Mr. Justice Casey Hill, Judge Leslie Pringle and Scott Hutchinson. A few years back they published an excellent study and article in the Criminal Reports with the pithy title: "Search Warrant: Protection or Illusion?" (2000) 28 C.R. (4th) 89.

They randomly pulled 100 search warrants and the informations to obtain sworn in their support from the files of the provincial courthouse in downtown Toronto where I would often practice as a Federal Crown Prosecutor. Their study revealed that while reviewing justices of the peace had refused warrants in only 7% of cases, a full 61% of warrants would have been struck down if challenged at trial because of serious drafting defects and lack of evidentiary support!

Their conclusion: that the strict requirement in the Criminal Code (and under s. 8 of the Canadian Charter of Rights and Freedoms) for judicial prior authorization of the police to engage in search and seizure in situations involving a high expectation of privacy was in fact only an illusion of a privacy protection, rather than a real concrete protection.

Speaking as someone who has spent years training the police on how to draft warrants, and who has published three books on the topic, I can say with confidence that there's a lack of resources available to properly train police and regulatory investigators on search warrant drafting, a lack of experienced officers available to draft the warrants, a lack of supervisory systems in place to do a quality check on draft warrants prior to submitting them to the courts, and a lack of lawyers available to advise the police on warrant drafting.

These bad warrants aren't the product of some kind of police conspiracy to pervert the course of justice. They're simply the result of systemic failures, including training failures for the justices of the peace who are supposed to be the guardians reviewing warrant quality.

Nova Scotia, where I also used to serve as a drug prosecutor, sought to deal with this Canada-wide faulty warrant problem over a decade ago be setting up a centralized justice of the peace call centre of sorts, staffed entirely by lawyers as JPs rather than lay JPs, to review and approve search warrants: http://novascotia.ca/news/release/?id=20011115001

I don't have stats to offer you from other provinces outside of Ontario on defective warrant rates, but my 20 years in the business tells me this remains a Canada-wide problem - probably better in some places and worse in other places. Anyone charged with an offence based on evidence obtained through the execution of a search warrant, or anyone who has had their property seized as the result of a search with a warrant, should definitely obtain legal advice about the validity of the warrant - you might be surprised by the results.

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.

Welcome to the New Drug (and Federal) Defence Practice Blog

As some might know who've been reading my original blog publiclawadvocacy, or any my books The Investigator's Legal Handbook (Carswell, 2006), Le manuel jurdique de l'enquêteur (Editions Yvon Blais, 2010), or The Investigator's Legal Handbook, 2d ed (Carswell, 2014), I served for many years as a Federal Crown drug prosecutor. First in Toronto and surrounding GTA, and then in Halifax covering the four Atlantic provinces.

During that time, and since, I've put on courses for law enforcement agencies on how to draft search warrants & wiretaps, how and when to arrest, take statements, draft charges, and the legal use of other techniques like production orders and proceeds of crime management orders. I've also prosecuted countless cases of simple possession, possession for the purpose of trafficking, trafficking, cultivation, production, conspiracy, importation and proceeds of crime.

In the course of all that, I learned a few dos and don'ts of drug cases.

The reality is that while the overall crime rate - and levels of criminal prosecutions - has been consistently falling throughout Canada over the past decades, the number of drugs prosecutions has been rising. See the good piece by Mila Dauvergne, Trends in Police-Reported Drug Offences in Canada. Though the stats are now a bit dated, this remains the best piece I know of explaining how crime peaked about 1990 and then declined such that around 1998 the drug offence rate per 100,000 people outnumbered the other criminal offence rate.

By 2007 the drug offence rate per 100,000 population was 50% high than the other criminal offences rate. In 2013, drug offences remained stuck at 310 per 100,000 population, approximately the same as 2007 levels (Police-Reported Crime Statistics in Canada, 2013).

Thus I thought it was time Canada had a blog devoted to drug defence practice. I may from time to time also talk about other federally prosecuted offences looked after by what's now called the Public Prosecution Service of Canada - those would include offences related to federal statutes other than the Criminal Code, and I might occasionally deal with some complementary Criminal Code offences like Fraud (which are sometimes prosecutions in tandem with tax evasion) or proceeds of crime (which are part of the Code, but are already federally prosecuted).