PRACTICING AREAS – Marihuana Offences

Marihuana

Possession of Marihuana, even in small amounts, is a criminal offence in Canada. In British Columbia all charges under the Controlled Drugs and Substances Act are prosecuted by the federal government.

Simple Possession

Although previous governments have proposed de-criminalization of small amounts of marihuana for personal use, simple possession remains a criminal offence. A conviction for simple possession of marihuana can have a significant impact on one’s ability to travel as well as future career opportunities.

Possession for the Purposes of Trafficking

Cultivation/Production of Marihuana (Grow-ops)

Cultivation of Cannabis Marihuana is widely viewed as an organized criminal activity that warrants significant condemnation from our courts. For this reason the Controlled Drugs and Substances Act permits judges to order lengthy terms of incarceration, even for first time offenders. This, it is thought, acts as deterrence to would-be marihuana growers.

DEFENCES:

Unlawful Searches and Unlawfully Obtained Evidence

A proper defence to a possession, trafficking or cultivation (production) charge starts with an examination of the police investigation. If the police have violated and the client’s rights under the Charter of Rights and Freedoms in obtaining the evidence, the court may rule the evidence inadmissible. Evidence obtained by the police in an unlawful manner or contrary to the Charter typically becomes subject to scrutiny of the court upon the application of your criminal defence lawyer at trial. In many cases the court will accept your lawyer’s application, rule the evidence inadmissible and dismiss the charges.

Proof of Knowledge

A basic concept of Canadian criminal law is that the act that constitutes the offence must not simply be prohibited (malum prohibitum), the accused must also have had the intent to commit the offence (mens rea). With few exceptions, a person cannot be convicted unless it is established that they had a guilty mind. With respect to possession of prohibited drugs, the court must be satisfied beyond a reasonable doubt that the accused had knowledge of the character of the forbidden substance.

Proof of Control

The prosecution must also prove to the court that the accused had control over the prohibited substance. The degree of control must be more than casual or hasty manipulation in order for the court to ground a conviction. Merely consorting with a person who has possession is insufficient to establish the requisite degree of control necessary to find an accused guilty of possession of marihuana for either simple possession or trafficking.