Facing a drug trafficking charge in British Columbia can involve complex evidence, serious potential consequences, and a prosecution that may rely on surveillance, searches, expert evidence, or communications records. A drug trafficking defence lawyer in BC will generally need to examine more than simply whether drugs were found. The Crown must prove the specific elements of the offence, and the defence may challenge the case in several ways.
Under section 5 of the Controlled Drugs and Substances Act (CDSA), it is an offence to traffic in a controlled substance or to possess a controlled substance for the purpose of trafficking. For substances listed in Schedules I or II, the offence is indictable and can carry a maximum sentence of life imprisonment.
The appropriate defence strategy depends heavily on the evidence and circumstances of the particular case. Below are some of the issues a defence lawyer may examine when responding to trafficking or possession for the purpose of trafficking allegations.
Challenging Possession
One potential defence issue is whether the Crown can actually prove that the accused possessed the drugs.
Possession under Canadian criminal law is not necessarily limited to having drugs physically on your person. The law can recognize possession in circumstances where a person knowingly has something in the actual possession or custody of another person, or in a place for their own use or benefit.
This can become particularly important when drugs are discovered in a shared residence, vehicle, storage unit, or other location accessible to multiple people.
For example, the fact that drugs were found in a vehicle does not necessarily establish who possessed them. Similarly, the discovery of drugs in a shared home does not automatically establish that every person living there had possession.
A possession for purpose of trafficking defence may therefore involve closely examining the evidence connecting the accused to the substance, including fingerprints, DNA, photographs, communications, financial records, admissions, surveillance, and the location where the drugs were discovered.
Challenging the Alleged Purpose of Trafficking
Even when possession can be established, a separate issue may be whether the Crown can prove that the accused possessed the substance for the purpose of trafficking.
The Crown may rely on circumstantial evidence to argue that drugs were intended for distribution rather than personal use. Depending on the circumstances, this could include the quantity and packaging of the drugs, cash, scales, communications, transaction records, surveillance, or evidence of alleged sales.
The defence can examine whether the evidence actually establishes the required purpose.
For example, the presence of multiple packages or a large quantity of drugs may be relied upon by the Crown as evidence of an intent to traffic, but the significance of that evidence depends on the circumstances of the case as a whole.
A defence lawyer may therefore focus on whether the Crown’s interpretation of the surrounding evidence is supported by the evidence and whether the required elements have been proven beyond a reasonable doubt.
Challenging Identification
Identification can become another important issue in trafficking prosecutions, particularly where police rely on surveillance or undercover operations.
An accused person may be alleged to have participated in a transaction based on observations made by police officers, video surveillance, photographs, communications, or other evidence.
The defence may examine the quality and reliability of that evidence. Questions can arise about lighting, distance, duration of observation, video quality, the use of disguises, or whether the person observed can reliably be identified as the accused.
Stern Shapray’s case results include a drug trafficking case in which a client charged with possession of cocaine for the purpose of trafficking was found not guilty after the court accepted the defence position that identification had not been proven beyond a reasonable doubt.
Challenging a Search or Seizure
A Charter defence for drug charges in BC may arise when police obtain evidence through a search or seizure that violates the accused person’s constitutional rights.
Section 8 of the Canadian Charter of Rights and Freedoms protects individuals against unreasonable search or seizure. The Charter also provides rights upon arrest or detention, including the right to retain and instruct counsel without delay.
Drug trafficking investigations can involve searches of homes, vehicles, storage units, electronic devices, and other locations. Police may also rely on search warrants, production orders, surveillance, or other investigative techniques.
A defence lawyer may review how the investigation began, what information police relied upon when obtaining a warrant, whether the warrant authorized the search that actually occurred, and whether police stayed within the scope of their legal authority.
If evidence was obtained through a Charter breach, section 24(2) provides a framework for determining whether that evidence should be excluded from the trial.
Stern Shapray’s drug crimes and organized crime practice identifies challenges involving search warrants, wiretaps, surveillance, and other Charter issues as potential areas of defence in complex drug prosecutions.
Challenging Surveillance and Undercover Evidence
Some drug trafficking investigations involve extensive police surveillance or undercover operations. These investigations can produce significant amounts of evidence, but that evidence still needs to be examined carefully.
A defence may involve reviewing surveillance logs, photographs, video, officer notes, timelines, communications, and the circumstances surrounding an alleged transaction.
Undercover operations can also raise questions about what police observed, what was said or done during an alleged transaction, and whether the evidence establishes the identity and involvement of the accused.
The Crown’s evidence must be considered as a whole, and the defence may challenge inconsistencies or gaps that affect the reliability of the prosecution’s case.
Challenging Electronic Evidence
Modern drug investigations can involve extensive electronic evidence. Police may rely on text messages, encrypted communications, location information, social media, photographs, financial records, or data obtained from electronic devices.
The meaning of a message is not always self-evident. A conversation may be presented as evidence of drug trafficking, while the defence may argue that the Crown’s interpretation does not establish what it alleges.
The source and method by which electronic evidence was obtained can also matter. Depending on the circumstances, a defence lawyer may examine whether police obtained the necessary legal authority and whether the collection or search of the information complied with the Charter.
Examining the Investigation as a Whole
Drug trafficking cases often involve multiple forms of evidence rather than one piece of information proving the allegation.
A drug trafficking lawyer in Surrey or elsewhere in the Lower Mainland may therefore review the investigation as a whole, including how police came to identify the accused, how evidence was obtained, what was seized, how the substance was analyzed, and what the Crown intends to rely upon at trial.
This can be particularly important in larger investigations involving multiple accused people, alleged criminal organizations, significant quantities of controlled substances, or lengthy surveillance.
Stern Shapray’s Surrey criminal lawyer page notes that the firm regularly handles drug possession, trafficking, and possession for the purpose of trafficking matters in Surrey and the Fraser Region.
There Is No Single Defence Strategy
The appropriate legal approach in a trafficking case depends on the specific allegations and evidence. One case may centre on whether the accused possessed the drugs. Another may turn on the alleged purpose of possession, identification, the reliability of surveillance, or the legality of a search.
In some cases, several issues may need to be examined at the same time.
Early review of disclosure can help identify potential weaknesses and determine whether applications, negotiations, or a trial should form part of the defence strategy. The Controlled Drugs and Substances Act sets out the offences and penalties, while the evidence in an individual case determines which legal issues may be relevant.
Facing Drug Trafficking Charges in BC?
Drug trafficking and possession for the purpose of trafficking allegations can involve serious consequences and technically complex evidence. A careful review of the investigation, disclosure, and applicable law is an important part of developing a defence.
If you are facing drug charges in the Lower Mainland, Surrey, or elsewhere in British Columbia, contact Stern Shapray Criminal Lawyers to discuss your case and your legal options.
