Epm pg 109

Mtl law book

Controlled drugs and substances act, cdsa. Substances on this list are controlled substances. Schedules are categories substances fall into

If lose case can be deported

If you possess over the legal limit of pot can be imprisoned post 2018 still. 2018 is when pot was legalized.

There are provincial and federal laws

The police arrest but the crown charges. Crown can charge for a different crime then police arrested for.

If you are being prosecuted then there are charges against you in a criminal file

The crown and police have a lot discretionary power with your treatment and your file. Crown is like prosecutor, not police.

Director of penal and criminal prosecutions, DPCP, prosecutor provincial boss, instruct and provide guidance for prosecutors. Other provinces have their own name.

Jury or judge acquit which means your innocent. Prosecutor can also withdraw charges “withdrawn” status.

Sentence are possible consequences of being guilty

Priors are prior criminal record

Law enforcement officer: immigration officers, police, youth protection agents, municipal inspectors, correctional officers etc.

Black, indigenous, racialized and migrant communities, people who are known to the police, are targeted more by police, meaning police also violate their human rights more often. Sentenced more harshly than whites. Drug laws are historically created to target these groups.

Systematic bias: those with authority, even incl teachers, have explicit or implicit bias against certain communities

Racial profiling: officers target certain groups of ppl and postal codes more.

Anti gang squad, anti gun squad, anti radicalization are dog whistles for targetting minorities. Also includes applying additional surv eillance to target group.

During say a anti gun police raids, they can prosecute the raided for any illegal drugs the cops find. This results in potential criminals fearing to call the police bc if there is an investigation the police could nail the caller. If a sex worker has HIV and does not disclose their HIV status it counts as sexual assault, meaning if a John beats her up, risky to call the cops on him.

If have PR status and found guilty could be deported/removal. Some drug addicts only are PRs.

Anytime you speak to police you are making a statement. Crown can use these statements to convince someone else to plead guilty or convict. Your silence cannot incriminate but your statement might.

Police allowed to lie. Will do anything really to get a statement. Don’t react to any of their behaviours, comments, or questions since that can be a statement. Try to remain silent. But many ppl do not have the privilege of remaining quiet, ex that can worsen police behavior.

Rehearse how to speak to police without providing any incriminating statements if you think you want to make a statement.

Police cannot arrest you if they don’t identity at least 1 offence. On arrest they give undertaking paper or hold you until court date.

After released by police, prosecutor might decide not to prosecute. If police are holding you after arrest your 1st court date happens after 1-3 days. Sentencing may be postponed until therapy/school/work etc is complete.

1st court case is usually 1-3 days after arrest, then bail applies for the 2nd court date in like months/yrs. When released after arrest can be released without conditions.

If plead guilty with lawyer, lawyer can negotiate to have certain charges withdrawn

Cannabis act covers cannabis.

You can be acquitted of 1 charge while charged with the others

Willing blindness: you are supposed to inquire about the nature of a delivery you are driving if the package seems suspicious.

4(1) Possession, “Simple possession”: to prosecute evidence needed: knowledge/willful blindness that substance in your possession and knowledge/willful blindness that it is a controlled substance named in the cdsa and measure of control/consent to their possession Law requires measurable quantity of drug, ex residue in a bag If there are drugs in your car and you are the driver or passenger, it cannot be the only reason for a conviction. Possession - drugs don’t have to be on you. Willful blindness - you ought to have know you have the drugs in your possession Knowledge of your possession is proven by it’s location (hidden or in sight), whether police have statements by you or others. Schedule 4 substances and lower cannot be found guilty of simple possession, but can be found guilty of other offences like trafficking

Double doctoring/ 4(2) obtaining a practitioner: asked dr for prescription or drugs without disclosing that info about the drug that u received in the last 30 days. Both for personal usage and for dealing. Uncommon charge.

5(1) Drug trafficking, trafficking in substance: proof must prove that you did 1 of the following or that you offered to do one of the following:

  • Selling drug or prescription: incl if the sale is not completed.
  • helping or encouraging someone to buy/sell. Bringing the buyer to the seller and if without this help the sale would never have taken place. Introducing a potential buyer to a seller is sometimes prosecutable depending on the judge. It sounds like it might only be an offense if accused works for the dealer and arranges the meeting between buyer and seller, but not clear.
  • giving drugs for free or for “free” is still trafficking
  • cannot administer illegal drugs even if asked too
  • if transporting home for personal consumption only, simple possession. But if or the purposes of sharing with friend, roommate then trafficking. Exceptions: inside safe injection site for drug checking purposes. Buying doesn’t seem to be trafficking. Selling a prescription (the paper) is trafficking
  • Max sentence is life

5(2) Possession for the purposes of trafficking: simple possession + purpose/intent of trafficking. Large quantity helpful to prosecutor but not required. Presence of measuring, packaging equipment, multiple bagged quantities, large amounts of cash, notebooks can be evidence.

  • Max sentence is life

Drug trafficking: sale, gift, administrating drug, transport of drug.

Case study: Nat brought cdsa drug to share with client at motel. Client overdoses and Nat has to call 911. Police show up too. She admits to cops that she bought the drugs and that he asked for them so the cops know it was his idea. She is convicted of trafficking.

6(1) Import (or export) and 6(2) possession for the purpose of import (or export): all must be proven: Bought drugs/organized their entry into Canada Knowledge/willful blindness/recklessness that controlled substance Intention to import the substance Bring drugs or organize their entry into the country: happens as soon as drug enters/leaves any country and continues until drug arrives at final destination in Canada in a person’s possession. If in transit through mtl and Toronto offence has take place in both locations. You don’t have to have been personally transporting the drugs or even present at the place of entry to be charged. If police intercept the drugs in transit, irrelevant to defense. Crown doesnt have to prove you know the precise nature of the drug. Recklessness: ex accused caught with 2 bottles of wine that contain dissolved cocaine, since the cocaine amount was large, the producer prob wouldn’t give this bottle to a blind courier. Behaviour following importation may provide convincing evidence of participation in offence: meeting with ppl, receiving calls of short duration at late hours, coded language by accused+accomplices, using public telephones to talk to “accomplices” despite owning a cell. After drug arrives to final destination, other ppl cannot be prosecuted for “possession for purposes of import” Police are specifically looking for fake suitcases on flights being carried by women 30s-40s

7(1) Production of substance, 7.1(1) possession, sale, etc for use in production or trafficking: production - manufacturing, harvesting, growing, etc. Offence includes offering to produce drug Evidence must prove you have some control over location/operation of production: cannot be convicted for simply being in a place of production. Police usually do detailed surveillance against accused first. Warrants for interception of private communication, track/trace (surveillance device on car), garbage searches, search warrants Police usually find out when purchase of large or suspicious purchases that are commonly used in drug production.

If police are at your house for a DV investigation and they see a baggie of what looks like heroin, can result in arrest.

Possession means: you have it on your personal possession, you know a friend is holding it for you, you know that you have hidden it somewhere. If your friend is holding a cdsa drug for you and they know it’s cdsa drug, then you both are in possession. If the cops raid your grandma’s house and you stores cdsa drugs there, she will not be convicted.

Knowledge of the drug: you just have to know it’s a controlled substance, not what it is specifically to be convicted.

Judges sentence more harshly depending on drug type. Ex if there are current anti meth events or media, worse sentence.

Possession of methadone/opioid agonist treatments (OAT):

  • Health care providers don’t need permission to prescribe, administer, sell/provide methadone to patients. Patients need a order/prescription. To own methadone must be a patient or health care provider basically.

Initial meeting with a judge after arrest is a bail hearing.

To get bail:

  • better odds if minor crime
  • have $ via bail or signing a “recognizance” that says you’ll pay bail. Get both back later on. A “surety” (friend) can pay for you.
  • fixed address that isn’t a homeless shelter
  • ties to the community - family, legal job, studies, community engagement
  • proof of how will support self legally
  • having a friend reserve you a spot in rehab
  • indigenous

Conditions can prevent you from owning a cell phone.

Causing death by criminal negligence and manslaughter for giving drugs to someone who overdosed. rare. Can be convicted if you and a friend are shooting up together and you shoot them up at their request and then they die. Accidentally bringing a drug that contains fentanyl and your friend dies. Harsher punishment if accused is much older than decreased or if deceased is not much of a drug user.

Crown can withdraw some charges but keep others.

A guilty plea only may help improve sentencing. If pleading guilty better to do it before the trial.

Didn’t type up schedule 1-7 drugs pg 38, 39 Schedule 1: opioids, meth, Adderall, ghb, methadone, MDMA Schedule 2: synthetic cannabinoids, most cannabis is regulated by the cannabis act now. 3: shrooms, lsd 4: zolpidem, steroids, benzodiazepines 5: not in the book if it exists 6: ingredients to manufacture drugs 9: manufacturing equipment ex machines to fill pills

Selling other medications like idk ibuprofen could be a civil matter where the gov might issue a large fine against you and failure to pay the fine results in conviction.

Sentencing - court determines punishment, ex prison, fines

If your lawyer and prosecutor agree on a specific sentence during a guilty plea, judge will most likely accept that, but judge doesn’t have to.

Types of sentences: un/conditional discharge, fine, suspended sentence with probation and conditions (ex community service, rehab) imprisonment in institution or in community.

Being guilty can have other effects like travel ban to USA.

Sentencing considers: type and context of offence, circumstances of arrest, criminal record/priors, first charge for this kind of offence, current situation, level of detail and assurances in rehab plan, are there victims, prosecuted as summary or indictable offense. Unofficially judge considers bias like being anti-sex worker.

Prosecuted for either indictable offense or summary offense. sometimes the law decides which, sometimes prosecutor does. Determines max sentence and severity judge will serve.

Indictable offense - more serious. Some crimes are always indictable. Summary - less serious

Aggravating factors - reasons court gives harsher sentence:

  • Not having a drug addiction at the time of offence
  • priors
  • commited offence for financial gain
  • breach of trust
  • etc

Mitigating factors - reasons court gives better sentence:

  • guilty plea
  • been in drug rehab if had drug addiction at the time of the crime (get letters from case workers)
  • age
  • remorse
  • community involvement
  • etc

Mandatory minimum sentences, Mms.

Since 2012 Mms higher and a bunch of drugs moved up in schedule

Gladue report:

  • optional for accused.
  • affects all parts of court
  • prepared by some org
  • for anyone who identifies as indigenous

Impact of race and culture assessment IRCA:

  • A few provinces have this
  • gladue for black ppl
  • judge can legally ignore it
  • exists bc black ppl have faced a lot of adversity

Stimga = negative stereotypes

Ppl who use drug usually get worse treatment from justice system.

If you participate in a treatment program pre sentencing, it can reduce your sentence or/and delay legal proceedings. Court needs to recognize its value and legitimacy. Court can also force you to attend a program of their choosing which can be like prison-lite. You can propose your plan to the court.

Special tribunals in mtrl regulate the provincial court treatment programs.

Many sex workers gain access to new resources and opportunities which can allow them change their condition and protect themselves. Anti sex worker laws deny them of this and their agency.

Drug addicts and sex workers are constantly stimgatized especially if they do sex work and use drugs.

Sex workers: Try to represent as a victim for a reduced sentence:

  • apologize and show remorse about your sex work
  • talk about how you’re a victim of sex work
  • allow the court to paint your sex work as all the problems in your life
  • make no claim about the useful of sex work in your life
  • be poor, get exploited by clients/pimps
  • when the court tells you to stop talking to other sex workers, drug users, clients, do it.

If you are between 12-17 YO:

  • youth criminal justice act or director of youth protection applies to you, 1 or the other, you can sorta pick
  • “very serious” crimes you’re prosecuted as an adult, so public criminal record
  • if an adult works with you on a crime it worsen the adults sentence

Police can charge you for possession of a weapon of they find a scissors or pocket knife

If police find you with a gun, they can easily give you 3 yrs. Weapons bans are 10 yrs.

Immigrants:

  • try to get either type of discharge (conditional or unconditional), that’s the same as not guilty in immigration law.
  • refugees without Canadian citizenship can be deported
  • if you don’t have PR, a hybrid offense or 2 summary offenses can get you deported
  • PR: receive a 6 month sentence or guilty of a crime that has max sentence of 10 yrs.
  • with an expired visa, cops database doesn’t have that kind of info, but they could call Canadian Border Safety Agency (CBSA)

worse charges for drug trafficking if offence happens near school or other place frequented by minors, or on correctional facility grounds, or in a gang, setting traps, using someone else’s building, creating hazards in a residential neighborhood

Indictable offence usually don’t have fines associated with them.

Cannabis act (CA)

  • distribution and trafficking are the same thing
  • having on possession for sale is illegal
  • public place: public has assess too and any vehicle located in public view
  • generally refers to dried cannabis, usually 30g or equivalent

Illicit cannabis is illegally obtained cannabis. It doesn’t have the gov stamp of approval

Some ppl give a fake name to cops bc risk of being identified is worse than the risk of obstruction. If you give police a fake address, they might mail court papers to that address and you won’t be able to receive them. If you give the cops a fake name and need to retract it, try to say it’s a “nickname but my legal name is x”

Recording cops:

  • legal for you to record cops unless property owner has rules against it, recording actually does interfer with the investigation
  • police may tell you that it’s illegal. Might charge with obstruction, or say you’re breaking like privacy, take your recording device, demand you erase recording, say they’re seizing your phone bc it contains evidence
  • if police seize your phone, they could find incriminating evidence to charge you or someone else with another crime

Frisking:

  • cops can legally if u are arrested. Only supposed to if they thinking you have a dangerous item on you and are a threat to someone’s safety. If you get upset this increases the odds they’ll search you. If they are searching you for weapons not supposed to search you for other things like drugs, phones, tattoos etc. They can use this to search for needles to identify you as a drug user
  • searching you for evidence of the crime they say you committed
  • if you’re temporarily detained/being questioned same thing
  • if you give them permission to search you or your property, they will. To prevent this say loudly “I do not consent to the search” and “je ne consens pas a une fouille” (jeh neh koh sehn pah ah oon foo yeh)
  • if an illegal search results in say drug charges, the drug charges could be withdrawn
  • if unlawful arrest (ex police brutality) then the subsequent search might be illegal

Seizures:

  • can seize items in a warrant. Ask to see and read the warrant.
  • if the warrant is to search a location, must have that address, specific area they can search, and list items theyre searching for
  • ask cops for a copy of the report identifying the seized items and where the items are being held Can seize items without warrant if they think it’s related to a crime, ex: - weapons that may have been used in the offense, Items that provide evidence like phones, scales, note books, items obtained through criminal offenses like money from drug selling, They can seize items before any arrests While you’re detained they will frequently go through your phone Note down: everything they seize, when, whom, where you were at the time. Careful about “obstructing” police while you do this, record officer name, patrol car number, badge number and other identitying info, knowing seizing location helpful for trying to get your things back, if an item is evidence you won’t get it back til the end of the case, if it’s considered proceeds of a crime you’ll likely never get it back, illegal things you will never get back

While detained, you can try asking a guard or lawyer if you can use your phone to get phone numbers, usually they’ll say no. Guards will be able to read your phone while this happens. Memorize the numbers of potential sureties.

Don’t have incriminating evidence about yourself or your associates

Drug use equipment:

  • can legally distribute unused drug equipment
  • if you have drugs on you, having sterile drug equipment can be used as additional evidence against you
  • may still be seized by security
  • If you’re hanging out with a drug users and you’re searched and they find sterile needles, they may then search your companion

Being detained:

  • physical detention is like being cuffed
  • psychological - they tell you you’re not free to leave/act like you can’t leave
  • can detain for: you’re connected to a crime, being a witness, victim, breaking a bylaws, warrant however discretionary power means they might not for a warrant, being present at a raid
  • technically don’t have to identify yourself, but police will likely arrest you for obstruction
  • police have to tell you why

Being stopped and questioned:

  • just bc you are in the area a crime took place, doesn’t mean they can stop and question you legally unless you match suspect description. They will anyway if they want

Warrants apply country wide

Arrested:

  • cops must tell you what you’re being arrested for
  • they’ll let you go with an “appearance notice” that may include conditions
  • you’ll receive a “summons” in the mail is really an appearance notice
  • keep you in detention for a few days until a judge sees you
  • If you have kids, get a criminal lawyer and family law lawyer
  • if you’re an immigrant criminal lawyer and immigration lawyer/expert

You can negotiate conditions, like if banned from an area but have dr appointments there. Lawyer can do this.

If cops question you or tell you to go with them:

  • ask “am I free to leave? Am I being detained or arrested” if unclear ask again, if still unclear make motions to leave and leave if they don’t stop you
  • if detained: “what am I being detained for?”
  • if arrested: “what am I being arrested for?” – you have the right to ask and to speak to a lawyer
  • technically illegal for them to detain you due to trying to bring you to a shelter or rehab etc

Police legally have to wear badge number and name tag and have to identify themselves if you ask them to

After abusive police interaction, note down: - when, where event happened

  • held anywhere? Conditions of where you were held? Location?
  • officer names, numbers, car numbers
  • what was searched? When, where, how did it happen?
  • who was searched? How and where were they searched? Name and badge number of cop.
  • Dmges? take pics
  • who was detained? We’re they offered an interpreter of needed? Do they speak the same language as the officer?
  • give all the info to lawyer

If cop grabs you and you pull away they might try to charge you with assault of an officer

Prep for dealing with police:

  • anyone in my party break a law? Any warrants? Youth protection involved with anyone?
  • if we’re stopped by police, are we all staying silent, all giving the same info? Other plan?
  • are cops targetting me, the neighborhood?
  • if cops targetting someone else, can I walk away?
  • is my hangout area heavily surveilled? Is my party heavily surveilled?
  • if I have id, does it reflect the name I’m gonna tell the cops? What happens if an officer shows up who knows me?
  • how to respond to cops if my kids are with me?
  • condition breach?
  • am I carrying anything arrestable? Plan if they search me?
  • are all my incriminating items hidden from plain view?
  • what police consequences is most harmful to me? What am I most concerned about? What am I willing to do to avoid these?
  • can I role play with someone?

Good Samaritan overdose act (Good Sam law):

  • If someone is overdosing and you call 911, police legally aren’t supposed to arrest you or anyone else there, incl overdosee for simple possession or simple possession condition breaches
  • everything else they can arrest you for. And they are known to use the opportunity to extract arrests Consider: throwing away/hiding your illegal drugs, tell others there you called 911 so they can leave, tell dispatch that area is safe so maybe police won’t come, should I leave and get someone else to stay or leave a note on the overdosees,

Security guards, transit officers, etc:

  • no legal requirement to speak with them
  • they can citizens arrest you physically legally if they see you doing it
  • cannot legally search you
  • can legally use reasonable force to remove you from a building
  • Montreal public transit security can become special constables easily and can detain and arrest ppl suspected of criminal activity on mtl transit. Can access police database.
  • All public transit security can fine and issues tickets related to their public transit. You’re required to provide them name, address, dob

Driving a vehicle:

  • if you are driving, police have more authority, like asking for ID, breathalyze
  • police can stop vehicles bc: see a driving violation, believe the vehicle is related or a crime, routine police blockade for like drunk drivers passing
  • often use license plates to determine if the car was stolen or a getaway vehicle or whatnot
  • police pulling over ppl in high crime areas for no other reason is illegal
  • important to not have knife, drug residue on plain view
  • if you’re too shaky, pink eyes, they know lol in the car as drug dealers, they’re more likely to find you suspicious
  • after arresting driver, they can legally search your vehicle if it’s related to why they arrested you, ex they arrest you for drugs and then they can then search the vehicle for more drugs
  • more likely to search your vehicle if you’re wearing a bulletproof vest
  • can search the vehicle legally for “safety”, they see you have weapons charges and then they search the vehicle or if they have reason to fear for imminent evidence loss, fear imminent threat to someone’s safety
  • legally easier for police to search your car then pat you down.
  • police can only legally ask driver for ID unless they turn the stop into an investigation in which case they can then ask everyone in the vehicle for ID
  • sleeping in your vehicle: take keys out of ignition, sleep in the back. Police may still harrass you and say it’s in relation to criminal charges

Investigations:

  • begin for any reason, even via anonymous tip line calls
  • often police with surveill and if they see suspicious activity, they get a warrant

Residential location:

  • greatest privacy from police here legally, however: if owner unknown, abandon, frequented by marginalized ppl, police more likely to invade
  • when can they enter your house: generally police cannot enter without a warrant unless the person who answers the door consents, if they think someone inside is about to commit a crime or that a crime is in progress, in hot pursuit and the runner enters the house, if they think someone inside’s life is in danger
  • if you don’t consent to them entering say: I do NOT consent to you entering, je ne consens pas a ce que vous rentrez (jeh neh Kon sen pah ah seh voo rehn-tray)
  • can get warrants to enter for unpaid tickets, money owed to revenue Quebec
  • police search your home when: someone being arrested there and police think something is a danger to other potential occupants, police fear imminent lose of evidence, medical emergencies (Medicare card, suicide notes)
  • if they see something suspicious (drugs, scales, large sums of cash) in plain view (from your door, or anything they see if you allow them to enter. Even if you let them in, they’re not supposed to search your house or roam to other rooms) they can seize it.
  • @TheEnigmaBladeOP
    link
    110 months ago

    Santini, Tara (2021). Read between the lines. Montreal, Quebec, Canada: Stella, l’aime de m’aimie.