4. Figure out if you have a defence
Question & AnswerI’ve been charged with Drug Possession. What do I need to know?
You can defend yourself in a criminal by showing:
- the Crown has not proven all of the elements of the crime
- your situation fits into a legal defence in the Criminal Code
- your Charter rights were violated
For a of Drug Possession, you may also have a defence if:
- You honestly did not know that you were in possession of the drug or substance. For example, a friend put the drug in your backpack without you knowing. Or you didn’t know that a family member was keeping the drug in a box in your garage.
- The police did not properly test the drug or substance to scientifically prove that it was an illegal substance
- You had a special legal exemption or permission to have the substance.
- You called 9-1-1 due to a medical emergency. If someone calls 9-1-1 because you or someone you’re with is experiencing a life-threatening medical emergency from taking drugs, none of the drugs at the scene of the emergency can be used to charge anyone with Drug Possession.
Think about what you can use to present your defence. Evidence might include:
- documents, such as receipts
- photos or videos
- witnesses who saw the incident or who know about the property and its owner
- telling your version of the story in court
In some drug cases, the Crown will agree to withdraw the charges if you sign a statutory declaration saying that you honestly did not know the drugs were there. You or your lawyer can talk to the Crown about whether they will accept a declaration in your case.
The Charter of Rights and Freedoms says that you have certain rights when you’re dealing with government. The government includes the police, the Crown, and the courts. For example, the police must:
- not search you in an unreasonable way
- not use excessive force against you
- not or you without a good reason
- help you contact a lawyer if want one
- explain why you’re detained or arrested
If any of your Charter rights are violated, the judge can throw out certain evidence in your case. In some situations, the judge may even dismiss your charges completely, for example, if it takes too long to give you a trial.
It can be legally complicated to discover Charter violations and know how to present them in court. It’s best to talk to a lawyer before your trial to find out if there are Charter issues in your case and how to deal with them.