There are a number of drug/controlled substance offences in Canada ranging from a relatively minor simple possession of marijuana charge to very serious offences such as importing large quantities of cocaine.  Regardless of the gravity of the offence, a conviction or finding of guilt for any drug charge will have significant impact on your life.  For example, any record at all with respect to even the most minor drug related offence will restrict your travel privileges indefinitely.  The more serious drug offences command lengthy jail sentences as the norm.

All drug offences must be vigorously defended.

At Daley Byers we have extensive experience in this area of criminal law.  We have successfully defended cases involving:

1. importation of over 50 kilograms of cocaine
2. importation of large quantities of marijuana
3. grow ops
4. manufacturing (production) of ecstasy, crystal meth, meth
5. possession for the purpose of trafficking (a) cocaine, (b) marijuana (c) ecstasy (d) oxycontin (e) heroine (f) crystal meth (g) ketamine
6. trafficking the aforementioned drugs
7. simple possession of the aforementioned drugs

There have been many cases where we have successfully negotiated the complete withdrawal or dismissal of charges in exchange for community service or a charitable donation.

There are many cases where we have obtained outright dismissals after trial.

There are many cases where we have successfully negotiated a resolution regarding a reduction from a charge from possession for the purpose of trafficking down to a simple possession, even in cases involving large quantities of drugs.

The following is a list of possible drug related offences.  Click on the link for more information pertaining to the particular offence.

• Drug possession (simple possession), s. 4(1) Controlled Drugs and Substances Act
• Possession for the purpose of trafficking, s. 5 (2) Controlled Drugs and Substances Act
• Trafficking, s. 5(1) Controlled Drugs and Substances Act
• Production (including Grow ops), s. 7 (1) Controlled Drugs And Substances Act
• Importing and exporting prohibited substances, s. 6 (1) Controlled Drugs And Substances Act
• Proceeds of Crime

The senior partners have over 29 years of experience and have accumulated extensive knowledge and experience in the complexities of building a defence when a client is facing drug related charges. In addition, we have an entire team of experienced counsel to assist with the research, investigation, preparation and presentation of the defence.

The Search

The legality of the search that resulted in the discovery of the drugs is often the most crucial area in a successful defence.

Section. 8 of the Canadian Charter of Rights and Freedoms states:

“Everyone has the right to be secure against unreasonable search or seizure.” 

At Daley Byers we ensure that there are no instances where the Police have violated the rights of the individual in their drive to investigate drug offences.  Some cases involve the use of a search warrant, while others rely on a search arising from a concurrent investigation or incident to arrest.  Regardless of the “justification” for the search, it is imperative that the legality be examined carefully.  At Daley Byers we have successfully challenged numerous searches in our defence work resulting in charges being dismissed or withdrawn.

In addition to the “search”, there are number of other defences (depending on the nature of the charge), some of which include:

1. challenging the treatment and handling of the physical evidence;

The prosecution must in every case prove continuity of the physical evidence.

2. the proof of the substance;

The prosecution in every case must prove scientifically that the drug is a controlled substance as defined in the Criminal Code.

3. the proof of ownership, knowledge, possession or control;

The prosecution must prove all aspects of the case beyond reasonable doubt.

4. necessary intent;

   The prosecution must prove the accused had the requisite intent to commit the crime.  This can arise in a simple possession case if, for example the accused had no knowledge of the existence of the drug (passenger in a car where drugs are found).  Intent is often a consideration in possession for the purpose of trafficking charges where the accused maintains the drugs were for personal use only.

Seizure of money and property are also often connected to a drug related charge under the proceeds of crime, and property used in the commission of a crime provisions in the Criminal Code of Canada.  Daley, Byers has extensive experience in this area often gaining the return of all such seizures made by the Police.

Sentencing in these cases is very sensitive and depends upon a number of factors including, of course, the type and amount of drug.  Sentencing submissions are crucial and require extensive preparation to obtain results.  Ken Byers (partner) in a recent case was successful in having a conditional sentence imposed where the accused was facing his 2nd grow op conviction.  A conditional sentence usually includes a form of house arrest and is often difficult to obtain on a first conviction.  In this case, there was no actual jail sentence imposed.

Experience in the courtroom is of vital importance, and we have the team to provide the necessary ingredients for success.

Call Daley Byers:    “ protect your rights”

CALL:  1-877-LAW-911-1
           1-877 529 9111

Controlled Drugs and Substances Act

The relevant provisions of the Controlled Drugs and Substances Act are set out below:

Section 4 deals with “simple possession”;

Section5 deals with “possession for the purpose of trafficking” and trafficking;

Trafficking is defined as

1. to sell, administer, give, transfer, transport, send or deliver the substance,
2. to sell an authorization to obtain the substance, or
3. to offer to do anything mentioned in (a) or (b).

Section 6 deals with “possession for exporting” and “importing or exporting”;

Section 7 deals with “production”;

Section 10 sets out aggravating factors that a court must take into consideration on sentencing.

Section 4

4. (1) Except as authorized under the regulations, no person shall possess a substance included in Schedule I, II or III.

(2) No person shall seek or obtain

(a) a substance included in Schedule I, II, III or IV, or

(b) an authorization to obtain a substance included in Schedule I, II, III or IV

from a practitioner, unless the person discloses to the practitioner particulars relating to the acquisition by the person of every substance in those Schedules, and of every authorization to obtain such substances, from any other practitioner within the preceding thirty days.

(3) Every person who contravenes subsection (1) where the subject-matter of the offence is a substance included in Schedule I

(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding seven years; or

(b) is guilty of an offence punishable on summary conviction and liable

(i) for a first offence, to a fine not exceeding one thousand dollars or to imprisonment for a term not exceeding six months, or to both, and

(ii) for a subsequent offence, to a fine not exceeding two thousand dollars or to imprisonment for a term not exceeding one year, or to both.

(4) Subject to subsection (5), every person who contravenes subsection (1) where the subject-matter of the offence is a substance included in Schedule II

(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years less a day; or

(b) is guilty of an offence punishable on summary conviction and liable

(i) for a first offence, to a fine not exceeding one thousand dollars or to imprisonment for a term not exceeding six months, or to both, and

(ii) for a subsequent offence, to a fine not exceeding two thousand dollars or to imprisonment for a term not exceeding one year, or to both.

(5) Every person who contravenes subsection (1) where the subject-matter of the offence is a substance included in Schedule II in an amount that does not exceed the amount set out for that substance in Schedule VIII is guilty of an offence punishable on summary conviction and liable to a fine not exceeding one thousand dollars or to imprisonment for a term not exceeding six months, or to both.

(6) Every person who contravenes subsection (1) where the subject-matter of the offence is a substance included in Schedule III

(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding three years; or

(b) is guilty of an offence punishable on summary conviction and liable

(i) for a first offence, to a fine not exceeding one thousand dollars or to imprisonment for a term not exceeding six months, or to both, and

(ii) for a subsequent offence, to a fine not exceeding two thousand dollars or to imprisonment for a term not exceeding one year, or to both.

(7) Every person who contravenes subsection (2)

(a) is guilty of an indictable offence and liable

(i) to imprisonment for a term not exceeding seven years, where the subject-matter of the offence is a substance included in Schedule I,

(ii) to imprisonment for a term not exceeding five years less a day, where the subject-matter of the offence is a substance included in Schedule II,

(iii) to imprisonment for a term not exceeding three years, where the subject-matter of the offence is a substance included in Schedule III, or

(iv) to imprisonment for a term not exceeding eighteen months, where the subject-matter of the offence is a substance included in Schedule IV; or

(b) is guilty of an offence punishable on summary conviction and liable

(i) for a first offence, to a fine not exceeding one thousand dollars or to imprisonment for a term not exceeding six months, or to both, and

(ii) for a subsequent offence, to a fine not exceeding two thousand dollars or to imprisonment for a term not exceeding one year, or to both.

(8) For the purposes of subsection (5) and Schedule VIII, the amount of the substance means the entire amount of any mixture or substance, or the whole of any plant, that contains a detectable amount of the substance.

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Section 5

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.

(3) Every person who contravenes subsection (1) or (2)

(a) subject to subsection (4), where the subject-matter of the offence is a substance included in Schedule I or II, is guilty of an indictable offence and liable to imprisonment for life;

(b) where the subject-matter of the offence is a substance included in Schedule III,

(i) is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years, or

(ii) is guilty of an offence punishable on summary conviction and liable to imprisonment for a term not exceeding eighteen months; and

(c) where the subject-matter of the offence is a substance included in Schedule IV,

(i) is guilty of an indictable offence and liable to imprisonment for a term not exceeding three years, or

(ii) is guilty of an offence punishable on summary conviction and liable to imprisonment for a term not exceeding one year.

(4) Every person who contravenes subsection (1) or (2), where the subject-matter of the offence is a substance included in Schedule II in an amount that does not exceed the amount set out for that substance in Schedule VII, is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years less a day.

(5) For the purposes of applying subsection (3) or (4) in respect of an offence under subsection (1), a reference to a substance included in Schedule I, II, III or IV includes a reference to any substance represented or held out to be a substance included in that Schedule.

(6) For the purposes of subsection (4) and Schedule VII, the amount of the substance means the entire amount of any mixture or substance, or the whole of any plant, that contains a detectable amount of the substance.

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Section 6

6. (1) Except as authorized under the regulations, no person shall import into Canada or export from Canada a substance included in Schedule I, II, III, IV, V or VI.

(2) Except as authorized under the regulations, no person shall possess a substance included in Schedule I, II, III, IV, V or VI for the purpose of exporting it from Canada.

(3) Every person who contravenes subsection (1) or (2)

(a) where the subject-matter of the offence is a substance included in Schedule I or II, is guilty of an indictable offence and liable to imprisonment for life;

(b) where the subject-matter of the offence is a substance included in Schedule III or VI,

(i) is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years, or

(ii) is guilty of an offence punishable on summary conviction and liable to imprisonment for a term not exceeding eighteen months; and

(c) where the subject-matter of the offence is a substance included in Schedule IV or V,

(i) is guilty of an indictable offence and liable to imprisonment for a term not exceeding three years, or

(ii) is guilty of an offence punishable on summary conviction and liable to imprisonment for a term not exceeding one year.

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Section 7

7. (1) Except as authorized under the regulations, no person shall produce a substance included in Schedule I, II, III or IV.

(2) Every person who contravenes subsection (1)

(a) where the subject-matter of the offence is a substance included in Schedule I or II, other than cannabis (marijuana), is guilty of an indictable offence and liable to imprisonment for life;

(b) where the subject-matter of the offence is cannabis (marijuana), is guilty of an indictable offence and liable to imprisonment for a term not exceeding seven years;

(c) where the subject-matter of the offence is a substance included in Schedule III,

(i) is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years, or

(ii) is guilty of an offence punishable on summary conviction and liable to imprisonment for a term not exceeding eighteen months; and

(d) where the subject-matter of the offence is a substance included in Schedule IV,

(i) is guilty of an indictable offence and liable to imprisonment for a term not exceeding three years, or

(ii) is guilty of an offence punishable on summary conviction and liable to imprisonment for a term not exceeding one year.

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Section 10

10. (1) Without restricting the generality of the Criminal Code, the fundamental purpose of any sentence for an offence under this Part is to contribute to the respect for the law and the maintenance of a just, peaceful and safe society while encouraging rehabilitation, and treatment in appropriate circumstances, of offenders and acknowledging the harm done to victims and to the community.

(2) If a person is convicted of a designated substance offence, the court imposing sentence on the person shall consider any relevant aggravating factors including that the person

(a) in relation to the commission of the offence,

(i) carried, used or threatened to use a weapon,

(ii) used or threatened to use violence,

(iii) trafficked in a substance included in Schedule I, II, III or IV or possessed such a substance for the purpose of trafficking, in or near a school, on or near school grounds or in or near any other public place usually frequented by persons under the age of eighteen years, or

(iv) trafficked in a substance included in Schedule I, II, III or IV, or possessed such a substance for the purpose of trafficking, to a person under the age of eighteen years;

(b) was previously convicted of a designated substance offence; or

(c) used the services of a person under the age of eighteen years to commit, or involved such a person in the commission of, a designated substance offence.

(3) If, under subsection (1), the court is satisfied of the existence of one or more of the aggravating factors enumerated in paragraphs (2)(a) to (c), but decides not to sentence the person to imprisonment, the court shall give reasons for that decision.

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