Caught In Traffick-ing

When it comes to drug offences, a couple of circumstantial factors can make the difference between serving 24 hours of community service versus 24 months in jail. Specifically, a conviction for possession of a controlled substance carries far less severe penalties than a conviction for trafficking or possession for the purpose of trafficking that controlled substance. Although these offences, share certain common elements, there are some significant differences between them which must be explored to determine when each charge will be appropriate.

First and foremost, the Controlled Drugs and Substances Act (CDSA”) is the federal legislation that deals with drug offences in Canada. The Schedules of the CDSA specifically set out which substances (and their derivatives) are illegal in Canada. Schedule I consists of “hard drugs” such as cocaine, heroin and ecstasy. Schedule II includes cannabis and marijuana, while Schedule III encompasses other illicit substances such as amphetamines and LSD. Though you can be charged for possessing even a small quantity of these proscribed substances, the exact amount will be relevant in determining the penalty if convicted.

Section 4 of the CDSA makes it a criminal offence to possess any of the substances listed in Schedules I, II or III. In order to establish possession, the Crown must prove, beyond a reasonable doubt, that you had control over the substance which you knew to be illicit under the CDSA. This means that you may be able to avoid conviction if, for example, you borrowed your friend’s backpack with no knowledge that there was ecstasy in one of the pouches. Similarly, if you knew there were pills in the backpack but honestly believed they were over-the-counter painkillers, then you may be acquitted at trial.

Section 5 of the CDSA prohibits trafficking, or possessing for the purpose of trafficking, any substance listed in Schedules I, II, III or IV. There is a common misconception that “trafficking” entails an elaborate drug-shipping enterprise. In reality, trafficking includes any sort of supply of an illicit substance, or a substance held out to be illicit. Accordingly, trafficking can include anything from selling drugs to providing them to friends for free. The latter part of the trafficking definition, which proscribes trafficking in a prohibited substance or any substance held out to be such a substance, is also of significance. This provision means that, even if the substance is not in fact illicit, you can still be charged for trafficking if you represent it as such. For example, if you are selling oregano on the streets and suggesting to purchasers that it is marijuana, you may be charged with trafficking a Schedule II substance (marijuana) despite the fact you never actually had any marijuana in your possession. As trafficking involves ‘widespread’ harm caused by the distribution of the drugs, it is treated far more seriously than simple possession. For this reason, under certain circumstances, trafficking offences carry mandatory minimum jail sentences.

Even if you are not caught in the act of trafficking a controlled substance, you may still be charged with possession for the purpose of trafficking. This offence is set out in section 5 of the CDSA, the same provision as the offence of trafficking. Consequently, it carries the same potential penalties upon conviction. Possession for the purpose of trafficking occurs when you have possession of an illicit substance, with an intention to traffic it. This intention to traffic can be inferred from a variety of circumstantial factors, including the following:

  • Quantity of drugs: the more drugs found, the stronger the inference that such drugs are intended to be trafficked
  • Manner in which drugs are packaged:  if the drugs are found in small individual baggies, it is presumed they are intended to be distributed
  • Money or paraphernalia: Where scales, large sums of cash, and other such items are found, that is indicative of the intention to traffic

Regardless of which specific drug offence you have been charged with, legal representation is critical. There may be constitutional arguments or other defences that you are unaware of, which can only be raised through the advocacy of a skilled criminal defence lawyer. Additionally, an experienced lawyer may be able to get your trafficking charges reduced to simple possession, depending on the circumstances. For professional legal representation on drug charges and other criminal offences, contact the law offices of Aitken Robertson at (866) 762-9218.