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Charged with a Drug Offence – What are your defences?

If you are you are charged with a drug offence, then it is important that you retain a lawyer. Drug offences are considered serious criminal offences in Canada and attract harsh penalties including imprisonment. It is important that you understand the particular jeopardy that you are facing to give yourself the best chance of tackling your charge(s).


The team at Aitken Robertson is equipped to handle drug offence cases. Here are a few ways your case can be challenged, that may be available to you depending on the facts of your case.

Crown Burden

There is a burden of proof on the Crown that is a persuasive and permanent burden requiring the Crown to prove or establish ultimately its case beyond all reasonable doubt. As the accused has the presumption of innocence, the prosecution normally bears both evidential and legal burden with respect to the essential elements of the offence. The evidential burden is to adduce sufficient evidence that the accused committed the act with the necessary intent, while the legal burden is to prove these matters beyond a reasonable doubt. If at the end of, and on the whole of, the case there is reasonable doubt created by the evidence given by the prosecution or defence, or given in cross-examination, the prosecution has not made out its case and the accused is entitled to an acquittal.

Charter of Rights and Freedoms

Challenging the Crown’s case because of a Charter violation can provide a defence for your case. If the breach of Charter rights is successfully argued in court, there is a possibility that the evidence gathered against you cannot be used. This often leads to an acquittal of your charges.

Procedural Defences

The following are a few examples of procedural defences that may be available to you:

  • Abuse of Process
  • Entrapment
  • Charter of Rights

Your criminal defence lawyer would explain the applicable ones to you in detail and how they apply in your case.

Specific Defences for Drug Offences

Agent for the Purchaser

An offer made to purchase a drug, either by the offerer or an agent, does not constitute trafficking. A person who acts as an agent for the purchaser of illegal drugs only to the extent of introducing the purchaser to the vendor, accompanied by mere passive acquiescence in what occurs afterwards, faces no liability under the criminal law for trafficking. However, he or she may be convicted of aiding and abetting the possession of narcotics if the facts warrant.

Being agent for the purchaser is no defence to a charge of trafficking if the accused has engaged in one of the acts that will amount to trafficking, such as transporting or delivering.

De Minimis Non Curat Lex

The defence of de minimis non curat lex may be a complete defence to a charge of possession of a very small or minute amount of an illegal drug. However, the law remains unclear as to whether the amount must be less than what can be used, measured or scientifically analysed. The ability to have knowledge, intent and control in relation to a minute amount of an illegal drug is also a consideration, and lack thereof has been used as a basis for acquittal instead of the de minimis defence.


The defence of Entrapment has been raised successfully as a defence in trafficking in narcotics charges. There is entrapment when:

(a) the authorities provide an opportunity to persons to commit an offence without reasonable suspicion or acting mala fides or,

(b) having a reasonable suspicion or acting in the course of a bona fide inquiry, they go beyond providing an opportunity and induce the commission of an offence.


A person duly authorized or licenced by law to do acts concerning prohibited or restricted drugs may raise such authority or licence as a defence if charged with relevant drug offences.

Possession for Innocent Purpose

An innocent purpose for the possession of drugs may provide a complete defence. Possession for an intention such as destruction of the drug or for the purpose of turning the drug over to the police will support an acquittal.

Miscellaneous Defences

Some defences, such as alibi, necessity, duress and mental disorder defences of general application, if raised, may provide a complete defence.

Contact Aitken Robertson For Your Defence

As you can see, there are a number of ways to challenge the case against you. While there is never a guarantee in the outcome of your case, the team at Aitken Robertson works hard to get you the most satisfactory result possible. That being said, you can contact our office to get a free 30-minute consultation on your criminal charge(s).

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Yasmine Al-Zaman

Yasmine’s patience, compassion and understanding allow her to work collaboratively and effectively with her clients. She appreciates the level of fear and confusion most people feel when confronted with the legal system. With that in mind, Yasmine puts her best foot forward to offer quality legal services.

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