What is trafficking?
Trafficking is defined under Section 2 of the CDSA as:
- the selling, administering, giving, transferring, transporting, sending or delivering of a substance;
- selling an authorization to obtain the substance; or
- offering to do anything mentioned above otherwise than under the authority of the regulations.
What is the difference between trafficking and possession for the purpose of trafficking?
Both trafficking and possession for the purpose of trafficking are criminal offences under section 5 of the CDSA.
In the case of trafficking, the accused must either sell or offer to sell the drugs or substances. Importantly, it does not matter whether the drugs or substances you are selling are real or not. Attempting to sell fake drugs is enough. Additionally, it is not required that you have actually sold the drugs for a trafficking charge to be met, even just offering to sell the drugs through a verbal promise is enough. As such, actual exchange or money or benefits for the drugs is not required.
In the case of possession for the purpose of trafficking, a charge can be made out if the accused has possession of the substance or drug, and depending on the amount found, there may be a presumption that the possession was for trafficking purposes. Unlike for a trafficking offence, a possession for the purpose of trafficking charge requires that the substance or drug be legitimate.
Some factors the court considers when assessing whether possession of drugs or substances was for the purpose of trafficking:
- Quantity of drugs;
- Drug paraphernalia (such as scales);
- Value of the drugs and money involved; and
- Association with known drug traffickers.
You can be charged for trafficking or possession for purpose of trafficking:
- Schedule I drugs, such as heroin and cocaine;
- Schedule II drugs, such as cannabis derivatives (note that possession of marijuana is no longer a crime under a certain amount);
- Schedule III drugs, such as LSD and mescaline;
- Schedule IV drugs, such as barbiturates and steroids and
Arrest and bail:
When you are arrested, officers must tell you of your right to counsel. This right allows you to speak to and retain a lawyer following arrest. It is always a good idea to exercise this right and obtain legal advice before speaking to police.
Due to the serious nature of the charge, you will likely be held for bail. You will be brought in front of a judicial official within 24 hours of your arrest. Not only will a lawyer tell you what to do and what not to do when interacting with police, they can also start working on your release if you are being held in custody.
Everyone has a constitutional right to reasonable bail with respect to the amount of money sureties pledge and the conditions imposed on you. Reasonableness also includes the fact that you should not be denied bail without “just cause.”
Due to the seriousness of the offence, the Crown will likely contest your bail. A contested bail results in a bail hearing (also known as a “show cause” hearing). In line with the principles of reasonable bail, the Crown must “show cause” as to why it is in society’s best interest for you to be detained—although there are certain circumstances that require the accused to demonstrate why their detention is not justified. For example, if you are charged with trafficking Schedule I or II drugs, you will need to show the court why you should be released.
There are three grounds of detention upon which you can be denied bail. The Crown will state on which grounds they are seeking detention, which consider:
- Whether you are a flight risk (primary ground);
- Whether you pose a threat to the public (secondary ground); and
- Whether your detention is required to maintain confidence in the administration of justice (for example, due to the seriousness of the allegations and/or the strength of the Crown’s case) (tertiary ground).
The court will look at factors, such as your ties to the community, your personal situation (including the presence of a criminal record), the offence itself, and the strength of a proposed bail plan and adequacy of sureties, when considering these grounds.
As part of considering your release, the court will determine whether conditions should be imposed and what they should be to mitigate concerns, such as ensuring that you attend court and do not commit any further offences. These bail conditions can be stringent and restrictive and may include, but are not limited to:
- Supervision through sureties;
- Curfews or house arrest, including ankle monitoring;
- Refraining from use of drugs and alcohol;
- Mandatory counselling;
- No contact with certain individuals; and/or
- Restrictions on where you can travel.
If you are denied bail, you will remain in custody until your trial or resolution, although it is possible to ask for a bail review at the Superior Court. Obtaining bail can be an uphill battle. Hiring a lawyer maximizes your chances of being released.
It is important to recognize that breaching the terms of your bail conditions can result in further charges against you and the revocation of your bail.
Once a bail hearing is conducted, a lawyer can start preparing a successful defence for your case.
A lawyer will ask the Crown for the disclosure of all relevant evidence against you. Drug offences fall under the jurisdiction of the Public Prosecution Service of Canada (PPSC). The PPSC is Canada-wide and consists of federal Crowns (while most other offences are prosecuted by provincial Crown lawyers). The Crown is obligated to disclose evidence about your case to your lawyer, regardless of whether or not that evidence will be used by the Crown in court. This disclosure is a fundamental feature of our criminal justice system. It helps to ensure that you have a fair trial and that you have the information needed to provide a full answer and defence. Having a lawyer by your side can be an advantage, as there are certain items of disclosure that the Crown will only release to counsel. If you do not have a lawyer, you may have to make arrangements with the Crown to review this evidence, which can be extremely time-consuming.
In some cases, disclosure can include hundreds (and sometimes thousands) of pages of documents, as well as hours of police interviews and surveillance footage. A lawyer will review these documents and can use them to effectively advocate for you.
A lawyer will then take steps to move the case along. Once disclosure is reviewed, a Crown pre-trial (CPT) is typically scheduled. The CPT allows the defence and the Crown to discuss issues in the case, as well as the Crown’s position. The CPT can be a springboard for further discussions and negotiations with the Crown. Depending on the case and how it proceeds, a judicial pre-trial (JPT) may also take place. The JPT allows a judge to weigh in and provide guidance in a more informal setting.
If you have retained a lawyer, you will not be present at the CPT or JPT. A lawyer’s expertise and experience can be invaluable at this stage. If you do not retain a lawyer, you most likely will have more difficulty speaking to the Crown, and your JPT will take place in open court instead of the judge’s chambers. You will be responsible for advocating for yourself, which can be an unnecessary stress added to an already challenging experience.
There can be a number of court appearances before a case is set down for trial or a plea is entered. A lawyer can explain the purpose of these appearances and even appear on your behalf, so you have one less thing to worry about.
If you are charged with trafficking Schedule I or II drugs, or if you are charged with trafficking Schedule III or IV drugs and the Crown chooses to proceed by indictment, and the case goes to trial, there will come a time when you will be asked to make an election regarding your mode of trial. You will have the option of being tried by a provincial court judge, a judge alone in the Superior Court, or a judge and jury in the Superior Court. Since trafficking Schedule I or II drugs carries with it a possible sentence of more than 14 years in prison, you will also be entitled to a preliminary inquiry, which is a sort of mini-trial that determines whether there is sufficient evidence to even hold a trial on the charges. If the judge finds that there is not sufficient evidence, then you will be discharged. Making your election and having a preliminary inquiry are strategic decisions. You will no doubt benefit from the support of a lawyer advising and guiding you through this lengthy and complicated process.
Consequences if found guilty:
Due to the dangerous nature of drugs, drug trafficking sentences can be very serious and lengthy depending on the substance and the quantity of the drug. Under the CDSA, the sentences for drug trafficking and possession for the purpose of trafficking are the same.
If you are charged with trafficking or possession for the purpose of trafficking a Schedule I or II drug, you could face the harshest sentence there is: life in prison. There is also a mandatory minimum of one year if, for example, committed the offence for the benefit of a criminal organization or used (or threatened to use violence). There is a mandatory minimum of two years if, for example, you committed the offence near a school or in a prison.
For Schedule III drugs, you could face a sentence of up to 18 months if the Crown proceeds summarily or up to 10 years if by indictment.
For Schedule IV drugs, there is a potential sentence of one year in prison if the Crown proceeds summarily or a maximum sentence of three years if by indictment.
A lawyer can help you better understand the available sentences for your charge, and they can work tirelessly to obtain the best possible outcome in the circumstances.
It’s vital to hire a lawyer
Being charged with a criminal offence, especially drug trafficking, is a stressful and life-altering experience. It is important to seek professional advice from a drug lawyer about your rights from the beginning.
A lawyer can also do much more. They can:
- Work to secure your release with the most favourable conditions;
- Help you navigate the criminal justice system;
- Ensure that the Crown meets its disclosure obligations;
- Identify systematic or administrative errors in the criminal process, including Charter rights violations;
- Speak to the Crown on your behalf, negotiate, and advise you of your options;
- Assess all the evidence against you and build a strong defence, so the charges are withdrawn or you are acquitted;
- Gather further evidence to support your version of the events;
- Obtain a more lenient sentence in the event a guilty plea or conviction is entered.
All criminal cases are complex and fact specific. We have provided general information about how drug trafficking cases are handled. Hiring a lawyer provides your best chance at mounting a successful defence. Retaining one holds particular importance in drug cases, as they involve search and seizures that could infringe on your rights. For more information about how we can help, please contact our team.