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Drug Offences

Drug Offence

Adam Steven Boni Drug Offence Lawyer

A drug conviction can result in jail, ruin your or your loved one's reputation, and interfere with your ability to travel outside of Canada.

Adam Steven Boni is a former Federal Prosecutor who represented the government in hundreds of drug cases before judges and juries in Toronto and Brampton until 1999. Since that time, he has successfully defended thousands of individuals charged with drug offences under the Controlled Drugs and Substances Act and the Food and Drug Act. His extensive experience in Charter of Rights litigation, Search Warrant and Wiretap review, make Mr. Boni a formidable advocate in any courtroom. You can read about his most recent, major victory in a drug case here: https://canlii.ca/t/jr2mg.

He has successfully defended individuals charged with conspiracy, importing, trafficking, production and possession of illegal drugs. He has also been retained by companies under investigation for international drug crimes and assisted them in clearing their good names.

Since 2004, Mr. Boni has co-authored Sentencing Drug Offenders - the only national sentencing text solely devoted to drug offenders - which is published for law students, lawyers and judges.

Mr. Boni has written extensively on search and seizure issues, search warrant and wiretap review, including "Bill C-13: Laying the Foundation for the Modern Canadian Surveillance State" (For the Defence Magazine 2015), "The Practitioner's Guide to Search Warrant Review" (Law Society of Upper Canada, The Complete Guide to Search Warrants Program 2015) and the "ABCs of Search Warrant Review" (For the Defence Magazine 2010). He has testified as an expert in the prosecution and defense of wiretap cases before the Federal Court of Canada. Mr. Boni has also lectured extensively on search and seizure law, most recently on "Challenging Warrants and Wiretaps" at the 2020 Ontario Criminal Lawyers Association Fall Conference.

Drug Offence

Drug Offence Lawyer In Toronto



The drugs and Substances in the Controlled Drugs and Substances Act

The federal law that creates offences and penalties for drug offences in Canada is called The Controlled Drugs and Substances Act ("CDSA"). There are schedules attached to the CDSA that list and classify controlled drugs and substances.

You can be charged with Drug Possession, Possession for the purpose of Trafficking, Drug Trafficking, Drug Production and Drug Importing for the drugs and substances listed in Schedules I, II, III, IV, or V.

What Is Drug Possession?

Under the Controlled Drug and Substances Act, it is illegal to have controlled drugs and substances enumerated in Schedules I to III of the Act in your "possession" at any time. Ownership of the drugs, i.e., whether they belong to or are owned by you, is irrelevant under the legal definition of "possession" in Canada. Simply put, you can be found to be in "possession" of an illegal drug or substance in Canada even if it technically belongs to or is owned by someone else.

In any drug possession case, the prosecution must prove that the item seized by police was, in fact, the item tested by government drug analysts. This is known as the "chain of custody". That "chain" must be unbroken. If there are gaps in the chain of custody or difficulties proving that the item tested was in fact the item seized from you, that may raise a reasonable doubt and lead to an acquittal.

If the chain is solid and unbroken, then the substance in question must be proven to have been one of those drugs enumerated in Schedule I to III of the Controlled Drugs and Substances Act, for example, heroin, cocaine, ecstasy, LSD, ketamine, crystal methamphetamine, psilocybin, among others.

This is done by certificate evidence from a duly qualified government drug analyst that must be served on you (or your lawyer with your consent) in advance of trial.

Furthermore, to be convicted of drug possession in Canada, the Crown must prove "knowledge" and "control" at the time of the offence. First, they must show that you had "knowledge" of the illegal nature of the drug. The crown does not need to prove that you were correct in your knowledge. In other words if you possessed heroin, but thought it was cocaine, that is not a bar to a conviction.

All the crown needs to prove is that you knew at the time of the offence that it was an illegal drug.

If you did not know that it was an illegal drug at the time of the offence, i.e., you thought it was baking soda, but later learn that it was cocaine through the government testing procedure, you cannot be retroactively fixed with guilty knowledge and there will be a reasonable doubt as to your guilt.

It is important to note that Canadian law defines "knowledge" in this context to include "wilful blindness". "Wilful blindness" is the state of mind of a person who reasonably suspects that she is in possession of a drug, but deliberately does not ask questions or seek out confirmation of her suspicions, because she prefers to remain "blind".

In Canada, the crown can rely on this doctrine to prove guilty knowledge.

The next element of proof that the crown must satisfy beyond a reasonable doubt in order to convict you of drug possession is "control" co-existent with guilty knowledge. The element of "control" can be established by proof of physical control over the drug (i.e., in your hands or pants pocket), or control over the area or premises where the drug was found, (i.e., in your rented apartment, in the car you own or have the keys to, or in your storage shed at the back of your house).

In short, it is possible to be found guilty of drug possession even if you don't have the drugs on your person ("actual possession"). Canadian law permits for a conviction in cases of "joint" and "constructive" possession.

The crown can rely on both direct and circumstantial evidence to prove knowledge and control. Direct evidence is exemplified by an eyewitness account, a confession, or a video showing you handling what is obviously an illegal drug. Circumstantial evidence can include documentary, photographic and contextual information that, taken as a whole, leads to the only reasonable inference being "guilty knowledge" co-existent with "control" beyond a reasonable doubt.

Circumstantial evidence is not, contrary to U.S. television series, a "weaker" form of proof. Some circumstantial cases are equally strong, if not stronger, than some direct evidence cases. The lawyer you hire must understand the concepts of direct and circumstantial proof and how these different types of evidence affect proof beyond a reasonable doubt. Your lawyer must be able to exploit problems or difficulties unique and common to each evidentiary scenario.

Is Possession of Controlled Drugs & Substances a Criminal Offence?

In Canada, drug possession is a criminal offence, established by a federal statute, the Controlled Drugs and Substances Act. For this reason, drug offences are prosecuted by the Federal Crown as opposed to the Provincial Crown, who typically prosecutes only Criminal Code charges. It is important to note that drug possession is a hybrid offence, meaning it can be tried as a summary conviction or an indictable case.

The Federal Crown will "elect" to proceed either by summary conviction or by indictment early on in your case. This decision depends on the severity of the offence, the type of drugs involved and their quantity. This decision will also affect your procedural options (i.e., trial in Ontario Court or preliminary hearing in Ontario Court and trial in Superior Court), and the potential penalties you risk after a conviction.

Can I Get Arrested if My Spouse or Roommate Is Possessing Drugs to Sell Them?

Yes, it is possible to be arrested if your spouse is selling or in possession of drugs. You can be charged with drug possession. Joint possession of an illegal substance is where one of two or more persons is found in possession of a given drug with the knowledge and consent of others. Joint possession does not require the element of control that is necessary to prove constructive or actual possession. Instead, joint possession requires consent.

As an example, the spouse of a drug trafficker may be found guilty of joint possession if the evidence proves they permitted their partner to hide drugs on their joint property or in their jointly owned vehicle. Ultimately, it is illegal to knowingly have any prohibited drugs in your possession at any time, even if they don't belong to you.

How Do You prove Possession for the Purpose of Trafficking?

Drug possession and drug possession for the purpose of trafficking are two separate offences in Canada. Drug trafficking includes selling, giving, delivering and providing drugs as well as offering to do any of these things.

If someone is charged with the possession of a drug for the purpose of trafficking, the Crown has to prove that the person possessed the illegal drug solely for the purpose of trafficking (eg., selling) them to others. This offence is prospective in nature, i.e., the prosecution does not need to prove that drugs were actually sold, but rather, that the accused possessed them with the sole intention of selling or distributing them, or offering them for sale or distribution to others, in the future

There are many factors the court will consider when determining whether or not a person is in possession of a drug for the purpose of trafficking. Such factors include the quantity of the drugs involved, the total street value of those drugs, the presence and amount and denomination of any money seized with the drugs, the presence of drug sale or drug use paraphernalia found, and any expert testimony that the Crown may elicit from a duly qualified drug expert.

If a reasonable doubt exists that your possession of that substance was for personal use, you cannot be convicted of possession for the purpose of trafficking. However, you can and will be convicted of simple possession of that drug, unless your lawyer can argue that a reasonable doubt exists on the proof of possession.

What Is Drug Trafficking and Is It a Criminal Offence?

Drug trafficking is a serious criminal offence in Canada. Trafficking is defined to include:

(a) to sell, administer, give, transfer, transport, send or deliver the substance,

(b) to sell an authorization to obtain the substance, or

(c) to offer to do anything mentioned in paragraph (a) or (b),

In Canada, no person shall traffic in a substance included in Schedule I, II, III, IV or V or in any substance represented or held out by that person to be such a substance.

What Is Drug Importing and Is It a Criminal Offence?

Drug importing is a one of the most serious offences in the CDSA. Except as authorized under a regulation, no person shall import into Canada or export from Canada a substance included in Schedules I to VI of the CDSA. The Crown must prove that the accused person intentionally imported the controlled drug or substance, knowing that it was an illegal drug or substance.

Importation can take several forms, including crossing the boarder into Canada on the ground by automobile, in the air by airplane, or on the high seas by boat. You can be guilty of drug importing even if you did not personally bring the drug into Canada if you arranged for an caused the drug to be imported through mail or transportation systems, or if you intentionally aided or encouraged another person to bring the drug into Canada.

The crown does not need to prove that the accused was correct in his or her knowledge of the nature of the drug imported. In other words, if you possessed heroin, but thought it was cocaine, that is not a bar to a conviction. All the crown needs to prove is that you knew at the time of the offence that it was an illegal drug.

It is important to note that Canadian law defines "knowledge" in this context to include "wilful blindness". "Wilful blindness" is the state of mind of a person who reasonably suspects that she is in possession of a drug, but deliberately does not ask questions or seek out confirmation of her suspicions, because she prefers to remain "blind". In Canada, the crown can rely on this doctrine to prove guilty knowledge in an importation case.

Defending Drug Cases

Drug cases sound simple to prove, but often they are not. A skilled and experienced defence lawyer who is familiar with police procedures, evidence and Charter of Rights law can mount a significant and successful challenge to these cases. It is critical that the lawyer you hire understands the work done by searching officers, seizing and exhibits officers, scenes of crime officers, and drug expert officers, so that their evidence can be properly and carefully examined and critiqued. It is also extremely important that the lawyer you hire is conversant with and up to date in respect of constitutional law.

Multiple Charter of Rights issues arise in the drug enforcement context including, unreasonable search and seizure (section 8), arbitrary detention and arrest (section 9), and the right to be informed of the reason for detention or arrest immediately, and the right to be informed and to instruct and retain to counsel without delay (section 10).

Defective police practices in the arrest, search and processing phase of the investigation can lead to a multitude of Charter of Rights complaints at trial that may ultimately lead to exclusion of the evidence and an acquittal. Finally, It is essential that your lawyer understands and has worked with drug addicts and addiction specialists, and has a network of counsellors and professionals to assist you in putting your best foot forward at trial or on a resolution of your drug charges.


If you are charged with a drug offense, don't settle for less - call Adam Steven Boni, LL.B.

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