A criminal record for any drug offence might impede your future travel to the United States and of course it might also impact your future employment prospects. In addition we have seen a stiff increase in sentences and even for first offenders there is an increased likelihood of a jail sentence if convicted.
Tessmer Law Offices uses constitutional defences, set out in the Canadian Charter of Rights and Freedoms, such as the right to be free from unreasonable search and seizure; in addition to holding the Crown to strict proof of all elements of the offence. For example the Crown has to proof that you had knowledge and control of any drugs found. For example there might be no proof that you had knowledge of a grow-operation in the basement of a building or drugs found in the trunk of a vehicle. Just because documents are found with your name on it that does not prove that you are that person and your identity has to be established by picture or in court identification through witnesses. Of course a lot of this is subject to cross-examination and your lawyer raising a reasonable doubt.
Drug offences are prosecuted by the federal Crown, usually through agents, lawyers from local law firms hired by the federal Department of Justice. Drug offences are set out in the Controlled Drugs and Substances Act.
S. 4: Simple possession:
S. 4. (1) Except as authorized under the regulations, no person shall possess a substance included in Schedule I, II or III.
You might have been under the wrong impression that simple possession of marijuana was no longer illegal. It always was and remains illegal. In the earlier part of the decade there was an understanding that while still illegal, simple possession would not always be charged or prosecuted. This has changed significantly under the current government and the federal Crown agents have less and less discretion and are required to prosecute this offence. Especially if you are found in possession of marijuana while driving, the Crown will seek a conviction resulting in a criminal record, which in turn will impact your ability to travel to the United States. If you are convicted of possession of another drug, consequences are likely to be much more serious.
Especially if you are a first offender, there are ways we can attempt to resolve simple possession charged without a criminal record. One way is to seek diversion, which will have express your remorse, deal with probation and likely engage in community work service.
Also by making presentations about your personal circumstances, your education and work prospects, we can attempt to secure an absolute discharge for you, this does not give you a criminal record.
Similarly a conditional discharge is not considered a criminal record in Canada. It puts you under conditions for a certain period of time, for example – conducting community work or taking treatment; during this time there is an entry in CPIC, but at the end of the period it is supposed to be removed and you are considered not to have a criminal record. The United States have access to CPIC, and they consider a conditional discharge a criminal record and therefore a conditional discharge can cause you problems in traveling to the United States. Tessmer Law Offices has strategies to address these issues.
A good offence is your best defence – therefore Tessmer Law Offices will always prepare to fight your charges and only if a resolution is absolutely to your advantage, will we seek an early resolution.
S.5: Drug Trafficking and Possession for the purpose of trafficking
5. (1) No person shall traffic in a substance included in Schedule I, II, III or IV or in any substance represented or held out by that person to be such a substance.
(2) No person shall, for the purpose of trafficking, possess a substance included in Schedule I, II, III or IV.
These are the much more serious charges and will not only result in a criminal record if convicted, but there is an increased likelihood that a conviction will carry a jail sentence. Even if you are found in possession of small amounts of drugs, if packaged separately and found along with other indicia of trafficking, you can be subject to PPT (Possession for the Purpose of Trafficking) charges. In order to prove this allegation an expert will have to be called; we will attack both the qualifications and the testimony of the expert and all the other substantive elements of the offence.
S. 7: Production of a drug or controlled substance
7. (1) Except as authorized under the regulations, no person shall produce a substance included in Schedule I, II, III or IV.
You might have heard that a first time offender is not likely to go to jail for growing marihuana, this is changing. The BC Court of Appeal has been increasingly maintaining and imposing real jail sentences. In addition the Conservative government has plans to change the law so as to abolish the possibility of obtaining a conditional sentence, a sentence served in the community, for these offences. In addition if the grow operation was located in your house or structure or if they can connect you to it (on the balance of probability), the government can also seek forfeiture of your property.
It is very important that you do not give any statements to the police or even give them the address where the grow operation was located as your address, even if they offer to release you on a promise to appear. If you were not found at the premises, but realize that a search has been conducted, contact us immediately, so we can communicate with the police and ensure you will not inculpate yourself.