Drugs Archives - LCP Criminal Lawyers

Category Archives: Drugs

Roadside Screening Device for Testing Drivers’ Saliva for Cannabis

In July, 2018, the Federal Government approved the first device for testing drivers’ saliva for the presence of drugs.

Until now, the police would test for drug-impaired driving by conducted a roadside standardized field sobriety test, which involves tests such as standing on one foot or walking in a straight line.

The saliva-testing device is a mobile device which will allow police officers to swab the inside of a driver’s mouth to receive a sample of oral fluid. The oral fluid would then be run in a mobile machine to test for the presence of THC to determine if there has been recent consumption of cannabis. The saliva-testing device has also been approved to test for the recent consumption of cocaine.

If a driver fails a mobile screening device, the result will be used along with other observations to form a police officer’s reasonable grounds that the driver is impaired by drugs. The driver will be arrested and transported to a police station for further testing.

Unlike an alcohol-screen device, the science behind a drug-screening device is much less established. There will be many challenges to the reliability of the mobile device and oral fluid testing.

If you have been charged with drug-impaired driving, contact Lockyer Campbell Posner for assistance.

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Is Driving Under the Influence Really a Criminal Offence?

Driving under the influence of alcohol or drugs can result in serious consequences, regardless of whether someone receives the penalty of a fine or imprisonment in jail.

Section 253 of the Criminal Code makes it an offence to drive while impaired by alcohol or a drug, and also makes it an offence to drive with a Blood Alcohol Concentration greater than 80 milligrams of alcohol in 100 millilitres of blood. Section 254 of the Criminal Code sets out when police can obtain breath samples and blood samples to determine whether a person has drugs or alcohol in their body. Under section 255 of the Criminal Code, impaired driving and driving “over 80” can both be prosecuted as either a summary offence or as an indictable offence. A summary offence is similar to an American misdemeanor. An indictable offence is similar to an American felony.The minimum punishment for these crimes is the same whether prosecuted as a summary or an indictable offence: for a first offence, a minimum fine of $1,000.00; for a second offence, imprisonment for a minimum of 30 days; and for each subsequent offence, imprisonment for a minimum of 120 days.

One serious difference between whether the crime is prosecuted as a summary offence or an indictable offence is the maximum penalty. If the crime is prosecuted as a summary offence, the maximum punishment is imprisonment for 18 months in jail. If the crime is prosecuted as an indictable offence, the maximum punishment is imprisonment for 5 years.

Causing bodily harm to another person as a result of impaired driving or while driving equal to or over the legal limit can only be prosecuted as an indictable offence. If convicted of impaired driving causing bodily harm or driving with a blood concentration equal to or over the legal limit causing bodily harm, the maximum penalty is imprisonment for 10 years.

Causing death of another person as a result of impaired driving or while driving with a blood concentration equal to or over the legal limit is also prosecuted as an indictable offence. The maximum punishment for such a conviction is life imprisonment.

These are serious matters that can affect your life and reputation for many years, whether the punishment is jail time or simply a fine. If you have been charged with impaired driving, contact Lockyer Campbell Posner for assistance.

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Recreational Drug Use

As the date for the legalization of recreational use of cannabis approaches there are still many unanswered questions. One important unknown is what restrictions there will be on home cultivation in Ontario. Although the federal bill allows for home cultivation of up to four plants per household, each province is able to set out their own laws and regulations. For instance, Quebec and Manitoba have already established that, regardless of what is set out in the federal legislation, homegrown cannabis will be banned in those provinces. If the Ontario government follows suit, individuals may need to retain lawyers to challenge the law in order to grow cannabis at home for personal recreational use.

While the Courts have gradually become more lenient with those charged with the use and sale
of cannabis, the use and sale of opioids, such as fentanyl, is attracting harsh treatment in our judicial system. The use of this drug began as a misuse of pharmaceutical fentanyl, a prescription drug in the form of transdermal patches or lozenges. However, consumption of illegally made fentanyl has become more and more common leading to an ongoing problem. Statistics show that Opioid-related overdose deaths have steeply increased in recent years. A substantial amount of these deaths are related to fentanyl products. The public outcry to the devastating effect of this hallucinogen has resulted in a phenomenon commonly referred to as the “fentanyl epidemic”. The courts have acknowledged this crisis and began imposing harsher punishments on fentanyl related offences as compared to charges involving other illicit drugs such as cocaine, crack cocaine and ecstasy. The trend in this area of sentencing is to impose stiffer sentences when the offence involves trafficking in fentanyl.

Being arrested for an offence related to the possession of fentanyl is extremely serious. The use and trafficking of this opioid is becoming more common as testing has shown that heroin and cocaine now are more likely to have fentanyl mixed in – often without the user and/or possessor’s knowledge. It is important for the recreational drug user to know about the serious health and legal consequences arising out of using and dealing in drugs that may contain fentanyl. If you have been arrested for a drug related offence, contact Lockyer Campbell Posner for assistance.

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Drunk student

Drunken University Sex

by Catriona Verner

As parents send their children off to university, I hope they are cautioning them about having drunken university sex.  Not only should their children be cautious about having sex with individuals who are apparently too drunk, but they should be cautious about getting drunk themselves and ending up in a stranger’s bed.  It seems that it is fairly common for university students to drink to excess, and end up having sex in an alcoholic blackout or amnesiac state, such that when they wake up the following morning they do not remember what lead to the sexual encounter in the first place.

 

The question is – when the student wakes up the next morning and does not remember consenting to sex due to a blackout, was it rape?  The answer is NO.  Notably, while they were blacked out, they appeared to be functioning normally, so the sexual partner had no idea they were in a blackout state.  It would be unreasonable to find that the unknowing sexual partner had committed a criminal offence in those circumstances.  In fact, without expert evidence, the evidence of a blackout is not even evidence of intoxication.  It is only evidence that the witness cannot remember what happened.

 

Clearly, not everyone is aware that you can legally consent to sex while blacked out, but some people who should be very aware of that fact include resident advisors at universities and Crown attorneys.  Unfortunately, in one of the cases I am currently working on, a resident advisor and a Crown attorney were both misinformed on that issue.  They both believed that you could not consent to sex while in a blackout state.  My case is a sad case all around.  My client, Francis Tweneboah-Koduah (who asked that I name him in this blog), was an 18-year-old boy who came from Ghana to Ontario to study aerospace engineering.  In his frosh week, just after landing in the country, he was not only trying to make friends like everyone else as they go off to school, but he was also trying to assimilate into a new and very different culture.  After a few nights at school, an equally young girl flirted with him.  According to her friends, she didn’t have glassy eyes, slurred speech or problems walking, but there was no question that if you knew her, you would have known she was intoxicated – she was acting way out of character.  She wanted to go to my client’s room to make out or “something to that effect”.  Unfortunately, she blacked out when she got to my client’s room.  They had sex.  Both the resident advisor and the Crown attorney in my case informed her that since she could not remember consenting, it was rape.  They were both wrong and caused irreparable damage to both the complainant and my client Francis, who have endured years of court proceedings as a result of that misinformation.

 

Francis and the complainant are not the only ones that have endured years of suffering due to one night of drunken university sex.  I recently learned that in one American university, they had a policy to expel any student that had sex with an individual while they were in a blackout state.  One female student woke up one morning realizing that she had had sex with a friend, but did not remember consenting.  She reported the incident and he was expelled.  Soon thereafter, she again had drunken sex with another friend and again, when she woke up she could not remember having consented.  However, on this second occasion, the male sexual partner also could not remember having consented to sex and, realizing she would likely report the incident and get him expelled, he reported the incident first and had her expelled.  Ironically, she thereafter sued the university.  That story exemplifies, why it cannot be a criminal offence to have sex with someone while they are in a blackout state.

As I said, parents should be warning their kids about drunken sex as they send their children off to school.

Image: The College Student’s Guide to Safe Socialization

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Drug Charges and Drug Trafficking Charges

The Controlled Drugs and Substances Act (CDSA) sets out which drugs are illegal in Canada
(marijuana, cocaine, heroin, etc.). There are four main offences in the CDSA: possession,
possession for the purpose, trafficking, and importing.

A possession charge means you are found with drugs in an amount for personal use. If it is your
first time facing a possession charge (under 30 grams of marijuana), you may be eligible for a diversion program. This means your charges may be withdrawn.

Possession for the purpose of trafficking means that you are in possession of an unlawful
substance for the purpose of selling or giving the substance to another person. This usually
means you are in possession of a large amount of an illegal substance – not for personal use (i.e.
you intend to sell the drugs). Trafficking in illegal drugs means selling or giving them to other
individuals, including undercover police officers. Importation of drugs occurs when you enter
Canada with an illegal substance.

Many people ask the question, “How do I beat my drug charge?” when charged with a drug
offence.

To be found guilty, the Crown must prove your guilt beyond a reasonable doubt. The Crown
must always prove the nature of the substance and possession of the substance. To prove
possession, the Crown must show that you had knowledge and control of the substance. When
charged with possession for the purpose of trafficking, the Crown must also prove that the
possession was for the purpose of trafficking.

Even if the Crown proves all of the necessary elements of the offence, you can still win your
case by demonstrating that your rights under the Charter of Rights and Freedoms have been
violated by the police. For example, your right to be protected against unlawful search and
seizure may have been violated if the police searched a home or a car without a search warrant.

If you have been arrested and charged with any drug offences (marijuana, cocaine, heroin, etc.),
Lockyer Campbell Posner can help you to avoid a criminal conviction.

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New Laws to Target High Drivers

It is common knowledge that driving drunk can lead to criminal charges. But what if you are driving high?

Currently, under section 253 of the Criminal Code, it is an offence to drive “impaired” and it is an offence to drive with a blood alcohol level of over 80 milligrams per 100 mL of blood (known in criminal law circles as “driving over 80”).

Drivers who have not been drinking but who are stoned or high generally don’t have to worry about the “over 80” offence, but they can be charged for driving “impaired”. Indicators of driving impaired may include:

  • Erratic driving
  • Dilated pupils/reddened eyes
  • Failing a “standard field sobriety test” (inability to walk-and-turn, standing on one leg)
  • Failing a “drug recognition evaluation” (examination of various factors including pupil size, blood pressure, injection sites, balance test)
  • Blood/urine drug tests

Because “impairment” can be subjective and difficult to prove (even blood and urine tests may be unable to establish “impairment” at the time of the offence), it has been rarer for people to be charged with drug-related impaired driving offences.

Bill C-46 sets out to change Canada’s approach to high drivers. The bill proposes amendments to the current impaired driving law that create “over 80” style rules for drivers on drugs. Accompanying regulations will define allowable “blood drug concentrations” and drivers who are caught driving with concentrations that exceed the new limits could be criminally charged. Until regulations are created and the new law comes into force, the current law stands.

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Arrested for growing and selling Marijuana?

Question:

Arrested for growing and selling Marijuana or Cannabis?

Answer:

Marijuana (marihuana, pot, cannabis) is set to become legal in Canada on October 17, 2018, but that doesn’t mean that it’s legal yet. Even when it is becomes legal, the purchase, sale, possession, and production of the drug will be heavily regulated. Here are some of the important laws that are anticipated to apply in Ontario:

  • In order to legally purchase, consume, or grow marijuana, you will need to be 19 years of age
  • You will only be able to consume it in a private residence
  • You will only be able to possess 30 grams of dried marihuana; and
  • You will only be able to grow four plants at any given residence

If you have been arrested and charged with any charges in relation to marijuana, or any other drugs under the Controlled Drugs and Substances Act, Lockyer Campbell Posner can help you to avoid a criminal conviction.

Related Topics

jail time, cannabis, how many years in jail, drug possession, health, grow up, license, legal, dispensary Toronto

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THE IMPENDING CHANGES TO APPROVED SCREENING DEVICES

by Craig Zeeh

In 2017, the government introduced Bill C-46, which is the most consequential piece of impaired driving legislation that Canada has introduced in years. Bill C-46 will add new provisions and amend old provisions of the Criminal Code for alcohol- and drug-impaired offences.

One of the significant changes of the Bill is the change to the use of approved screening devices, known as an “ASD”.
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THE IMPORTANCE OF THE TRIAL JUDGE’S REASONS FOR JUDGMENT IN CRIMINAL CASES

by Alexander Ostroff

In criminal trials heard by a judge alone, sitting without a jury, the reasons provided for his or her decision are particularly important. The Supreme Court has held that the trial judge has a duty to give reasons in non-jury criminal trials.
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DRUG RECOGNITION EVALUATION AND IMPAIRED DRIVING

by Alexandra Mamo

In anticipation of the upcoming legalization of marihuana, the government is ensuring that police officers become more skilled in identifying drivers who are impaired by drugs on Ontario’s highways.

The law currently allows police officers to go through three steps to determine if someone is driving while impaired.
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