Drug Offences

The warrant is the case.

Most drug prosecutions begin with a search warrant, and most search warrants begin with an Information to Obtain. That’s a sworn document setting out why the officer believes evidence will be found. The standard for issuing a warrant is a real one, and the sworn material has to meet it.

In practice, ITOs are frequently overstated, incomplete, or drafted to make thin information look solid. Some warrants are defective on their face. Some carry conditions the police then failed to satisfy. Some rest on an earlier search that was itself unlawful, which makes everything downstream derivative and vulnerable.

28 years of reading these documents is the difference between noticing a problem and being able to prove one.

Derivative evidence: the whole chain can fall.

In one matter, officers entered an apparently vacant house without a warrant and found a grow operation. A supervising sergeant attended and entered as well, then directed that a warrant be obtained, which rather establishes that they knew one was required. A utility bill found inside led police to a second property. An infrared overflight was used to support the second warrant, but the aircraft had recorded the wrong house. A third warrant followed from the second.

We argued that the police would never have known about the second or third properties but for the initial warrantless entry. The court excluded the drugs, the firearm and the cash from all 3 locations, and the Crown withdrew the charges.

Exclusion changes what the trial is about.

When key evidence is excluded, one of two things happens. Either the prosecution collapses before trial, or it goes ahead on a much weaker record.

In practice both are wins. Arguing a case in front of a jury is a very different exercise once we have already settled which facts that jury will be allowed to hear.

Say nothing. It’s the one piece of free legal advice that always holds.

Police are allowed to arrest you and to search. They can’t make you speak. In drug matters the most damaging evidence is rarely the drugs themselves. It’s our client explaining whose they were, why they were there, or what he thought was going on.

Knowledge and control are elements the Crown must prove. Don’t prove them for it.