If your thing is gone and you wanna ride on.

Cocaine.

Don’t forget this fact, you can’t get it back.

Cocaine.

She don’t lie; She don’t lie; She don’t lie

Cocaine.

Eric Clapton probably said it best in a 1977 cover song more widely known than the original version.

Cocaine is a hard drug which is prosecuted vigorously in Canada, particularly in Ontario and Quebec.

This question asks about whether you may or may not end up with a criminal record if you are charged with possession of cocaine. First and foremost, this article is going to exclude anything to do with trafficking. The trafficking of any drug, particularly cocaine, has a number of additional considerations which is beyond the scope of this article. In short, trafficking is much more serious and engages additional legal issues. For instance, when most people think of trafficking, they think of a large commercial operation. Whether it’s a street buy or an importation charge, this is outside the scope of the article here. Note that even giving a line to a friend to “party” may be considered trafficking (albeit engaging less severe sentencing). For questions about trafficking please click on this link to ask me a question directly and I will contact you back with an answer about trafficking cocaine.

Possession

It’s worth remembering that possession is the combination of two things: “knowledge” and “control.” For example, if four guys are driving in a car which is stopped by police, and the car is searched and one of the backpacks in the trunk has cocaine in it, generally speaking, all four guys are going to be charged. Why? From a practical point of view the police often have a hard time knowing whose drugs they are (even if they belong to one person). Imagine that there are four backpacks in the back. One belongs to each passenger. The police can find out who owns the car, but who owns each backpack, and whose had the cocaine in it?

Like most concepts in law, “control” is a complicated term defined in large part by jurisprudence (precedent case law from other courts as to what constitutes control). A very rudimentary definition I like to use is as follows: if an item is not yours but you went over and picked it up, would the real owner of it mind much? Using the example of the four guys above, assuming these guys are all friends, one can assume (and a judge may do this, often with the assistance of other circumstantial evidence) that if the car stopped for a bit and guy #1 went into the trunk and picked up guy #2’s backpack, you wouldn’t expect guy #2 to make a fuss. Contrast this with traveling on a Greyhound bus. If the person is a stranger to you and you go over to their seat and grab their bag, they’d probably say something. Accordingly, control is typically established in examples where—as I have crudely defined it—the owner wouldn’t really have a problem if you were to pick up the item.

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In the Greyhound example, the Crown prosecutor might have a harder time proving control since unless there is evidence the guys knew each, other control may be difficult to prove without an admission or confession from one of the accused people. Imagine a witness overheard three of the guys talking about a party they attended. That could establish they knew each other and therefore that they each had some measure of control over each other’s bags. But if that witness didn’t come to Court, the prosecution might have a harder time convincing the judge of this. But in the case of people travelling in a car—absent circumstances like a rideshare or Uber trip—it’s safe to assume that everyone in the car knows each other and has some degree of control over one another’s belongings.

Knowledge

Knowledge is the component of “possession” that is often the more interesting element to prove in a drug case. It often depends on a variety of factors including how the various people know each other. A common misconception is that if you don’t own the drugs, you aren’t guilty of possession. That is false. Ownership proves possession, but lack of ownership doesn’t prove a lack of possession. In fact often the mere fact of saying “those drugs didn’t belong to me. I just had the weed in the side pocket” can prove you guilty of possessing “those” drugs (since by saying those drugs, it could imply you knew they were there but they belonged to your buddy.

And therein lies the obvious touchstone of knowledge: did you know they were there? If you did, you can be found guilty of possession; if you did not know they were there you cannot be found guilty of possession and you should never plead guilty in those circumstances. If you or someone you know is being given a guilty plea bargain to admit possessing drugs you/they didn’t know were there, call me right away to discuss the cocaine charges further since you would be lying to the Court, and possibly jeopardizing yourself for the reasons set out below.

Knowledge may be proven by direct evidence (i.e., an admission by the person that he knew the drugs were there.)

Think:

Officer: “Is there anything in the car that I need to know about?”

Person: “I have some cocaine and weed in the glovebox.”

That would be direct evidence of knowledge. So would evidence that a person was using the particular substance. (In saying this I recognize that this is really a form of circumstantial evidence, but it is very strong circumstantial evidence, so strong as to be virtually direct evidence. People generally know what they are ingesting and even if they said they weren’t using it, the mere act of them handling it suggests they knew what was in their hand).

Then there is more typical circumstantial evidence. Drugs sitting in the open console in a car are likely known to everyone in the car. Powder residue on a shirt is evidence the person probably came into contact with it at some point. And so on. Accumulate enough circumstantial evidence and you can prove that a person knew.

Sentencing

So what do you do if you are guilty and you’ve been found guilty after trial or have plead guilty (or are thinking of pleading guilty?)

First and foremost, you should have a lawyer on your side. You can call me any time 24 hours/day for a free consultation if you need a lawyer for a cocaine charge in Ottawa, Toronto, Montreal, or anywhere in Ontario or Quebec. Often there are ways to negotiate with the prosecutor to “divert” the charge. Now you must keep in mind that unlike small quantities of marijuana, which is seem as relatively low in terms of harm, cocaine is seen as very harmful to the individual, and the criminal subculture that traffics it is very dangerous to the public. So by patronizing that industry, your blameworthiness is seen as higher than someone smoking pot. For this reason, “diverting” (or “de-judicializing” it as they call it in Quebec) is normally refused by the prosecutor. This is where a skillful lawyer can explain to the prosecutor why, if the matter proceeds to trial, there may be significant problems with the investigation or with the state of the evidence. Sometimes this can help tip the balance in favour of a good deal such as diversion. Diversion for cocaine in Ottawa /Montreal/Toronto (or anywhere) is the best outcome since it results in the charges being withdrawn or “stayed.” (A stay of proceedings is like a withdrawal; the specifics of this will be left for an article for another day.)

But if you cannot get the Crown to agree to divert the matter or if pursuing a “diversion strategy” involves too much risk or cost, then pleading guilty can be an option.

As mentioned above, you can only plead guilty if you are actually guilty; that is the first requirement. The second requirement is that you should get something from it. Courts normally recognize that a person’s willingness to take responsibility and save the court/police officer’s time is a good thing and reward those people with extra-lenient penalties. But if a “lenient” outcome may still involve a criminal record or jail, then you may wish to think twice. A lawyer can help you negotiate and discuss the matter with a judge in a closed-door setting (called a judicial pre-trial or “JPT”) to try and work out a special arrangement taking into consideration some unique factors of the case or the offender.

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This article will not discuss the various sentencing options, but it’s worth mentioning them in summary: absolute discharge for cocaine; followed by conditional discharge; followed by suspended sentence and/or probation and/or a fine; followed by jail served in the community (i.e. a conditional sentence such as house arrest for cocaine possession); followed by jail.

There are many prosecutors and judges who believe that even for a first offence a jail sentence is warranted for cocaine possession. This belief is not necessarily a “personal” belief, but one shaped by the jurisprudence (case law) that has defined cocaine as more serious than other drugs and something that needs to be denounced (publicly spoken out against through tough penalties) and deterred: the individual should be prevented from wanting to do it again due to a harsh sentence, and other people may be inclined to stop out of fear they get caught and go to jail; this is called specific and general deterrence. But jail is the most severe form of punishment we have in Canada and jurisprudence also requires judges to exercise restraint and see if they can accomplish the goals of denouncing cocaine use (and deterring others from using it) by sentencing the person to something less severe. Some judges lean more towards the precedent cases that favour jail and some judges lean more towards the cases that favour restraint. A lawyer can help you know which judge you are in front of.

Note: this article is not saying that David Anber or any other lawyer can predict what any judge would decide, but experience with various judges makes it easy for a skilled lawyer to make educated guesses as to how a judge will decide based on their reputations and previous cases of a similar nature. Some may call it “judge shopping” but it is good advocacy to know who your audience is and to steer clients towards favourable judges and away from less favourable judges. That’s how David Anber’s Law Office works, reiterating again that we never suggest that we know for certain or can predict an outcome. We can merely use our experience as lawyers dealing with cocaine charges in Ottawa, Montreal, Toronto and other places across Quebec and Ontario.

Even if you get the Crown or Court to consider a non-jail sentence, a criminal record is usually part of the sentence. This can be a huge problem.

Many people ask me if a criminal record will hurt their ability to travel. Often the answer is no. For petty crimes or even driving offences like “impaired driving” many countries don’t stop people from entering. Note: they always can decline entry, for virtually any reason, but I have never had a client stopped at the border (of any country including the United States) and refused entry for an impaired driving offence or other petty crime which is not considered a ‘crime involving moral turpitude.’ (Note that the expression crime involving moral turpitude, CIMT, is an American expression and I am not competent to discuss American law).

A drug conviction, on the other hand, will not go over well at the border. In some cases a conviction for possessing drugs (particularly a hard drug like crack cocaine) makes you inadmissible, practically speaking, for life.

Not only that, but a “conditional discharge” which, in Canada, is not considered a criminal record (you are found guilty but not “convicted”) is still treated as a criminal record by U.S. border security.

The difference between a conditional discharge for cocaine possession and an absolute discharge for cocaine can therefore be hugely significant. There are things a lawyer can do to try and persuade a prosecutor or judge to agree to an absolute discharge. For example, if the conditional discharge involved a probation order where the person attended counselling and performed 20 hours of community service, perhaps we could “wow” them by doing the work up front. Coming to Court, before pleading guilty, with counselling underway and 30 hours of community service might be enough to persuade the Court not to impose a probation order—making the conditional discharge an unconditional discharge known as an absolute discharge.

Lastly, on the subject of counselling, if you or a loved one are charged with drug possession in Ottawa, Montreal, Toronto, or anywhere else in Quebec or Ontario, as a result of an addiction, this is something which can be treated somewhat differently by the courts. If two people possess the same amount of cocaine but one person did so just to have a good time while the other person did so out of an addiction, the latter person may be given extra leniency due to the lower degree of blameworthiness and also, potentially, even more leniency if they are actively taking steps to address their addiction. Ottawa is a city which has a very useful drug treatment court. This is something which is worth looking into in the appropriate case.

If you have any questions, please do not hesitate to call David or Matthew at David Anber’s law office for more information.