Experienced Criminal Defence Lawyers

Trafficking is broadly defined and can include selling, administering, giving, transporting, sending or delivering a drug to another or offering to any of the above. Drug trafficking does not have to be done for the purpose of making money. It is proven if someone merely offers to sell drugs to another person or when someone introduces a seller to a buyer and assists in negotiating the price or giving payment. The offence of trafficking can even involve a substance that is not actually an illegal substance if it is held out to be a drug. 

Simple possession is the least serious drug offence and can include having a very small amount of a controlled substance. A person has anything in his possession when he: 

1. Has it in his personal possession or knowingly has it in the actual possession of another person; or 
2. Has it in any place for the use of himself or another person.

Joint possession can also be proven where one of two or more persons with the knowledge and consent of the rest, has anything in their possession. 

Possession for the purpose of trafficking is proven by establishing possession of a drug and that it was possessed for the purpose of trafficking. The intention to traffic can be proven through statements and/or circumstantial evidence.  The types of circumstantial evidence that tend to create an inference that someone possesses a substance for the purpose of trafficking include: 

• A large quantity of the drug inconsistent with personal use; 
• A substance of high quality or purity; 
• A substance worth a substantial amount of money; 
• A substance packaged in a number of small quantities consistent with multiple sales; 
• Possession of paraphernalia, commonly used to traffic drugs, such as scales; 
• The presence of “scoresheets” - debt lists indicating outstanding money owed; 
• The presence of a large quantity of money consistent with prior sales; 
• The presence of someone in an area known for drug trafficking; 

It is common for the prosecution to call a “drug expert” to explain the inferences that can be drawn from the circumstantial evidence.  Drug experts are usually police officers who have extensive knowledge and experience related to drug investigations, drug use and the illegal drug trade.

Yes.  Joint possession can be proven where one of two or more persons, with the knowledge and consent of the rest, has anything in their possession. 

No.  If you agree to hold or store a drug for someone else, knowing it is illegal, you can be found guilty of possession as a party to the offence.

Yes. A person can be found guilty if he has a drug in his possession or knowingly has it in the actual possession of another person or has it in any place for the use of himself or another person.

It is now widely recognized that some offenders commit drug offences due to strong addictions to various narcotics. The incarceration of these individuals does little, if anything, in the way of deterrence or protection of the public.  Courts have come to realize that the approach that needs to be taken with individuals who are addicted to narcotics, is one that involves treatment for their drug addiction. Drug Treatment Courts have now been established in Alberta. Drug Treatment Courts are court-based treatment programs, which supervise the rehabilitation of the drug dependent offender.

These offenders must be admitted into the Program.  Very few applicants are in fact admitted owing to the resources required to run the program. The offenders must plead guilty, and a conviction is registered. Sentencing, however, is postponed for approximately 12 to 18 months to allow the offender to complete the program. If completed, the offender will receive a non-custodial sentence instead of incarceration.  The benefit to the offender is two-fold: first, the offender receives treatment for his or her drug addiction; and second, the offender is given a reduced sentence.

Alternative Measures, often called “Diversion”, are a pre-trial procedure involving the exercise of discretion by the prosecutor not to prosecute an offender.  It involves removing an accused from the formal justice system and allowing him or her to take responsibility for his or her criminal conduct in a less formal process. Diversion programs allow an accused to take responsibility without obtaining a criminal record. They are generally only available for first time offenders charged with minor offences.  Once someone is diverted out of the criminal justice system and into the Alternative Measures Program, they are usually directed to perform a period of community service.  Diversion can also involve a monetary donation to charity, essay writing or some other type of activity approved by the prosecutor.  Once the requirement is completed, the charges are formally withdrawn in court and the accused will not be burdened with a criminal record.

Yes. 

• A computer search requires a specific pre-authorization in the search warrant;
• Cellular telephones are computers;
• A search warrant does not allow the police investigator to scour the computer indiscriminately. The search must be conducted in a reasonable manner. The search should be no more intrusive than is reasonably necessary to achieve its objectives.
• The authorizing justices have a discretion to impose specific conditions and limitations on the manner in which the computer is searched.

While section 99(1)(a) of the Customs Act allows authorities to search your bags at the border, it has been held that the same legislative provision offends the right to be secure from an unreasonable search or seizure as it authorizes suspicion-less and unlimited searches of personal electronic devices.  It has been held to violate section 8 of the Charter Rights and Freedoms.

Further, once an individual becomes the subject of a “particularized suspicion“ they must be told of their right to counsel.  If they are not, their rights under section 10(b) of the Charter of Rights will be violated.  However, it should be noted that even if these fundamental rights are violated, it is very difficult to exclude the evidence obtained from the cell phone – R. v. Canfield 2020 ABCA 383.

• Police can only seize what is authorized by a search warrant;
• A justice can authorize the search of a specific building, receptacle or place for evidence of a criminal offence;
• A warrant authorizing police to search a particular location should also include the ability to search other structures on the property or “outbuildings”;
• In terms of the legal threshold, most warrants require the investigating officer to have reasonable grounds to believe:
• That evidence will be located at the location specified in the search warrant; 

• Most warrants require credibly based probability requiring more than an experience – based hunch;
• A number of Criminal Code warrants and production orders require only a lesser standard of probability that is:  reasonable grounds to suspect.  The suspicion must be supported by factual elements that can be put forward in evidence;
• Using the wrong standard of belief – reasonable grounds to believe versus reasonable suspicion – can result in an illegal search;
• One of the most common reasons for rejecting a warrant is that the affiant (police officer) has failed to disclose the source of the facts that support his or her beliefs;
• Hearsay evidence is allowed. The hearsay evidence often comes from a police source, but it can also come from a witness or a third party;
• The ability of an issuing justice to assess the evidence of a source who does not want to reveal his or her identity or any information that would tend to identify him or her is problematic;
• In dealing with a confidential informant there are at least three concerns to be addressed in weighing evidence relied on by police to justify the search:

1. Was information predicting the commission of a criminal offence compelling?
2. Where that information was based on a “tip” originating from a source outside the police, was that source credible?
3. Was the information corroborated by police investigation prior to making the decision to conduct a search?

The following information should be probed in cross examination when challenging a search warrant:

• The source of the informant’s information (first hand, hearsay, and if hearsay, the source of the hearsay);
• The informant’s relationship with/to the accused and how they first came into contact;
• The length of time the informant has known the accused and the frequency of contact between them;
• Whether the informant has previously provided information to the police;
• Whether previous information provided has led to arrests, seizures or convictions;
• Whether past information provided by informant has ever proven to be unreliable or false;
• Whether the informant has a criminal record and if so whether the issuing iustice saw the details of the convictions or other charges;
• Whether the informant has convictions for offences of dishonesty, moral turpitude or against the administration of justice;
• Informant’s motivation for speaking to the police, including whether consideration was sought or arranged;
• Whether the informant was in custody at the time they provided information to the police;
• Whether the informant was instructed on the penalties for giving false information;
• Whether descriptions provided by the informant match the accused or the target location;
• The degree of detail in the information that the informant provided to the police;
• The recency of the information that the informant provided to the police;
• Any discrepancies between the information of one informant and another;
• Any aspects of the informant’s information that are contradicted by the police investigation or otherwise detract from their credibility.

When seeking to quash a warrant, counsel should review the warrant itself to determine whether police complied with the requirements, specifically:  date, time, location.  The manner of execution of the search should also be scrutinized.  Further, if you can point to false, misleading or unconstitutionally obtained evidence or information that was put before the authorizing justice, an application can be made to excise that information from the justice’s consideration.  If what remains does not meet the legal threshold of reasonable grounds to believe, you may be successful in quashing the search warrant.

Courts have broad discretion in restricting cross examination in these areas.  Courts zealously protect the identity of the informants.

General warrants are very special warrants which may only be granted by Provincial and Superior Court judges.  They may authorize police to use “any device or investigative technique or procedure or do anything described in the warrant that would, if not authorized, constitute an unreasonable search or seizure”.  In other words, they allow the police to do something that would normally be deemed illegal.  For instance, allowing the police to break into a suspect’s residence to plant microphones or to allow police to conduct a surreptitious perimeter search of a suspect’s residence or allowing police to obtain a penile swab in an effort to obtain the victim’s DNA.  It is important to note that the general requirement that the search warrant be executed by day does not apply to the execution of general warrants.