DRUG OFFENCES

  • 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 Zamani Law 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.

    • 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
    • Importing and exporting prohibited substances, s. 6 (1) Controlled Drugs And Substances Act
    • Production (including Grow ops), s. 7 (1) Controlled Drugs And Substances Act
    • Aggravating factors that a court must take into consideration on sentencing, s. 10 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 Zamani Law 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 orincident to arrest. Regardless of the “justification” for the search, it is imperative that the legality be examined carefully. Our criminal defence lawyer 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.  Zamani Law 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 Zamani Law. “Protect your Rights.”

What the Criminal Code of Canada Says: Section 162 - Voyeurism

The Offence of Voyeurism

162 (1) Every one commits an offence who, surreptitiously, observes — including by mechanical or electronic means — or makes a visual recording of a person who is in circumstances that give rise to a reasonable expectation of privacy, if

(a) the person is in a place in which a person can reasonably be expected to be nude, to expose his or her genital organs or anal region or her breasts, or to be engaged in explicit sexual activity;

(b) the person is nude, is exposing his or her genital organs or anal region or her breasts, or is engaged in explicit sexual activity, and the observation or recording is done for the purpose of observing or recording a person in such a state or engaged in such an activity; or

(c) the observation or recording is done for a sexual purpose.

(2) In this section, visual recording includes a photographic, film or video recording made by any means.

Exemption – Voyeurism

(3) Paragraphs (1)(a) and (b) do not apply to a peace officer who, under the authority of a warrant issued under section 487.01, is carrying out any activity referred to in those paragraphs.

Printing, publication, etc., of voyeuristic recordings

(4) Every one commits an offence who, knowing that a recording was obtained by the commission of an offence under subsection (1), prints, copies, publishes, distributes, circulates, sells, advertises or makes available the recording, or has the recording in his or her possession for the purpose of printing, copying, publishing, distributing, circulating, selling or advertising it or making it available.

Punishment – Voyeurism

(5) Every one who commits an offence under subsection (1) or (4)

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

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

Defence: Voyeurism

(6) No person shall be convicted of an offence under this section if the acts that are alleged to constitute the offence serve the public good and do not extend beyond what serves the public good.

Question of law, motives

(7) For the purposes of subsection (6),

(a) it is a question of law whether an act serves the public good and whether there is evidence that the act alleged goes beyond what serves the public good, but it is a question of fact whether the act does or does not extend beyond what serves the public good; and

(b) the motives of an accused are irrelevant.

Factual Examples of Voyeurism Cases

We have defended a number of cases relating to the charge of voyeurism under s. 162 of the Criminal Code.  Following are a few examples of the factual scenarios that we have encountered:

  1. Neighbour looking through the windows  (peeping tom), or by means of a telescope.
  2. Use of a flip phone with a mirror to take pictures up the dresses of unsuspecting individuals.
  3. Video camera installation in washroom
  4. Pictures taken on private areas of a beach
  5. Video camera installation in shower area
  6. Video recording of consensual sexual activity without providing knowledge of the existence of the recording device

It is also an offence to publish, print, or distribute in any way a recording obtained in violation of s. 162(1).

Penalties to Voyeurism Charge

If the Crown attorney chooses to proceed by indictment the maximum sentence is five years in prison.

If the Crown attorney chooses to proceed by way of summary conviction, the maximum sentence is 6 months.

  1. Jail
  2. Fine
  3. Probation
  4. Conditional discharge
  5. Absolute discharge

In most cases the Court is concerned as to whether the accused constitutes a danger to the public. To alleviate this concern it is often necessary for the accused to obtain a psychologist report assessing the level of risk. At Zamani Law we have expert psychologists in this field that we refer our clients to.

Defences to the Charges of Voyeurism

There are many possible defences that arise out of various factual scenerios. Depending upon the allegations the following is a non- exhaustive list of possible defences.

  1.  Identification – Can the Crown prove the identity of the person responsible?
  2. Illegal Searches – cell phones, computers, … etc. are often searched by the police in the course of their investigation. These searches can be challenged and evidence excluded.
  3. There was no reasonable expectation of privacy.
  4. The act was not conducted surreptitiously.
  5. If the act was committed to serve the public good and does not extend beyond what serves the public good.
  6. The observation was not done for a sexual purpose
Successfully Negotiated Plea Resolutions

REDUCTION OF CHARGE  (ALTERNATIVE CHARGE)

We have successfully negotiated plea resolutions from the charge of voyeurism to a charge of mischief under the Criminal Code. A mischief charge does not carry the stigma that follows a conviction for voyeurism.

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