R. v. L.G.

(Alberta Court of Justice, Calgary - Drug Possession, Possession for the Purpose of Trafficking). In many cases prosecuted in Calgary drug court, accused persons are charged with both possession and possession for the purpose of trafficking when drugs are alleged to have been found on or near them. The charges against LG triggered because the accused was alleged to have been found in possession of a small amount of recreational Schedule 1 substances. Pursuant to the Controlled Drugs and Substances Act, Schedule 1 substances in includes an inventor of narcotics, including cocaine, meth, MDMA and more.  

In LG's case, there was little doubt that the charge for "possession for the purpose" constituted an overcharge.  In criminal law, "overcharging" refers to a practice of alleging more charges than necessary or more serious charges than are warranted. LG's case was assisted by a full plate of defences, including "possession", Constitutional/Charter issues and technical defences such as whether the amount of narcotics alleged to be found were sufficient to prove "possession for the purpose of trafficking" as opposed to just "simple possession". 

While the Crown certainly had a reasonable prospect of conviction for simple possession, the evidence did not strongly support possession for the purpose. As quasi minister's of justice, prosecutor's are tasked with assessing every case for than mere likelihood of conviction; they must consider whether the public interest is served in pursuing a case. LG's case was all things considered not only quite minor, but the defences LG had available would have required the use of both judicial and prosecutorial resources. As a result, the prosecutor agreed to "stay" the charge on condition that items found as part of the investigation be "forfeited". 

Of course, the accused happily accepted this outcome. A "stay of proceedings" is one of of the most powerful options available to a crown and is almost entirely unassailable. A "stay" means that the Prosecution can resurrect a case within 12 months from the date of the stay. To be clear, however, a case can only be resurrected if the Crown comes into possession of evidence that it could not have obtained by any reasonable effort. 

In 2 1/2 decades of criminal practice, this Calgary drug lawyer -- who has obtained hundreds of stays -- has only seen 1 case come back to life. Indeed, it is almost unheard of for cases to be returned to the court after a Crown directed stay of proceedings. 

In some instances, the Crown will negotiate "stays" in exchange for forfeiture to maintain possession over items, such as electronic devices, in their possession. Now, a Crown cannot use forfeiture as a negotiation for a stay to investigate the device for the purpose of re-charging the accused. What is important, however, is that accused person's should understand that if the police have a device that contains information, the information may be valuable -- even if not admissible in a criminal trial -- to inform other investigations. 

LG's case was not burdened by these concerns and even it was, there is a very high likelihood that defence counsel would have instructed LG to agree to forfeiture to make the criminal charges disappear. The reason is, the Crown has ultimate discretion to stay in any event. In a case involving narcotics, if items seized are directly related to the allegations (such as the drugs) or can be proven to be offence related property, there is a very substantial likelihood that the Crown would succeed in a forfeiture application in any event. 

David Chow is an experienced Calgary drug lawyer and Calgary criminal lawyer. David spent many years devoting his practice to defending complex and high level drug prosecutions. If you are in the market for a defence lawyer to handle a drug case, it is important to select a criminal defence lawyer in Alberta who understands how to navigate this type of case. While there are many Alberta criminal defence lawyers, there are only a relatively small number who can be relied upon to properly defend a drug prosecution.  Drug defence is certainly a more specialized bracnch within the field of criminal law.