Trafficking means: to sell, administer, give, transfer, transport, send or deliver the substance, to sell an authorization to obtain the substance or to offer to do anything mentioned above.
With an experienced drug lawyer, drug possession for trafficking charge can be properly defended against, possibly dropped, or won at trial.
The sentencing for a drug offence depends on the action itself, as well as which Schedule the substance falls under for purposes of the Controlled Drugs and Substances Act (CDSA). Some substances will hold higher penalties than others.
In order to properly assess if your charge has the possibility of being dropped or won at a trial, you must contact a defence lawyer immediately.
It is important to have a defence lawyer throughout the process to determine what defences may be applicable to your case and to assist you accordingly.
Drug offences can be very complicated and demand the attention of an experienced lawyer.
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Common Defences for Drug Possession For Trafficking Purposes Charges
The Crown must establish that the accused had the intent to traffic the substance. In more recent cases, those charged with a drug offence have raised as a defence not that the substance was a legal one, but rather that it was a drug different from the one named in the charge.
Case law has held that as long as the mens rea (the intent) of the accused related to a substance prohibited by the Act, although the accused faced a charge relating to a different drug under the Act, that mens rea was sufficient for the accused to be convicted of the offence with which he or she was charged.
Another factor that may assist the accused’s case maybe how the drug possession for trafficking purposes came to the officer’s attention.
This could be in the form of an illegal, warrantless search. An illegal search sparks up an infringement of s.8 of the Charter, which protects against unreasonable search and seizure, and usually is depicted as an officer going into someone’s home without a warrant.
The topic of what constitutes an illegal search has been debated over the years, with significant case law changing up the game.
For example, is searching through someone’s phone considered an illegal search? Because the Courts are interested in achieving justice, not even a “warrantless search” is an automatic illegal search, which is a scary concept to grasp as the accused in a situation.
Information for a search warrant is set out in section 11 of the Controlled Drugs and Substances Act. Section 11(6) allows for the seizure of additional things that are not set out in the initial warrant.
This includes: any controlled substance the peace officer believes on reasonable grounds is a violation of the Act, anything that the peace officer believes on reasonable grounds to contain or conceal a controlled substance, anything on reasonable grounds that is offence-related property, and anything on reasonable grounds that will afford evidence in respect of an offence under this Act.
In certain circumstances, a warrant is not necessary, as set out in section 11(7) of the Act. Where a peace officer may exercise any of the powers listed in the Act without a warrant if the conditions for obtaining a warrant exist but by reason of exigent circumstances it would be impracticable to obtain one. In the case of R.v. Grant it was determined that exigent circumstances could include “imminent danger of the loss, removal, destruction or disappearance of the evidence,” should the search be delayed to obtain a warrant.
In other matters, the Supreme Court of Canada has said that the Crown has the burden of establishing that the warrantless search is reasonable.
A search is reasonable if it was authorized by law or carried out in a reasonable manner. For example, in the Kokesch case, the police conducted a “perimeter search” of the accused’s property in order to find evidence of cultivation and possession of narcotics for the purpose of trafficking.
The Supreme Court of Canada held that mere suspicion of the crime amounts to an unreasonable search and seizure. The police do not have the power to trespass on private property to conduct a search.
As illustrated, determining if a search is illegal and using this to potentially “win” a case, is a complicated question, which requires an analysis of multiple factors.
If an individual is charged with a drug crime, and believes the search was warrantless or unreasonable, they should contact a defence attorney immediately.
Sentencing for a Drug Possession For Trafficking Purposes Charge
As per section 5(1) of the CDSA, no person shall traffic in a substance included in Schedule I, II, III, IV or V or in any substance represented or held out by that person to be such a substance.
The CDSA defines “traffic” includes any substance found within Schedules I to V, with the following actions:
(a) To sell, administer, give, transfer, transport, send or deliver the substance,
(b) To sell an authorization to obtain the substance, or
(c) To offer to do anything mentioned in paragraph (a) or (b)
In combination with a trafficking charge, is the corresponding charge of possession. Section 5(2) of the CDSA explains, no person shall, for the purpose of trafficking, possess a substance included in Schedules I, II, III, IV or V.
The punishments for trafficking and possession are as follows:
a) If the subject matter of the offence is a substance included in Schedule I or II, is guilty of an indictable offence and liable to imprisonment for life, and
(i) To a minimum punishment of imprisonment for a term of one year if
(A) The person committed the offence for the benefit of, at the direction of or in association with a criminal organization, as defined in subsection 467.1(1) of the Criminal Code,
(B) The person used or threatened to use violence in committing the offence,
(C) The person carried, used or threatened to use a weapon in committing the offence, or
(D) The person was convicted of a designated substance offence, or had served a term of imprisonment for a designated substance offence, within the previous 10 years, or
(ii) To a minimum punishment of imprisonment for a term of two years if
(A) The person committed the offence in or near a school, on or near school grounds or in or near any other public place usually frequented by persons under the age of 18 years,
(B) The person committed the offence in a prison, as defined in section 2 of the Criminal Code, or on its grounds, or
(C) The person used the services of a person under the age of 18 years, or involved such a person, in committing the offence;
b) If the subject matter of the offence is a substance included in Schedule III or V,
(i) Is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years, or
(ii) Is guilty of an offence punishable on summary conviction and liable to imprisonment for a term not exceeding eighteen months; and
(c) Where the subject matter of the offence is a substance included in Schedule IV,
(i) Is guilty of an indictable offence and liable to imprisonment for a term not exceeding three years, or
(ii) Is guilty of an offence punishable on summary conviction and liable to imprisonment for a term not exceeding one year.
Maximum Sentence for Drug Trafficking in Canada
The maximum sentence for drug trafficking depends on which drug/substance is being trafficked, according to Schedule I to IV in the Controlled Drugs and Substances Act.
Schedule I or II drugs or substances have a maximum sentence of imprisonment for life. This includes opium, codeine, morphine, oxycodone, fentanyls, More known for their street names, these schedules also include cocaine, crack, heroin, and MDMA.
Schedule III or V drugs or substances have a maximum sentence of imprisonment of ten years. Schedule VI drugs or substances have a maximum sentence of three years.
First Time Offender Drug Trafficking
With each criminal conviction, the Court has the responsibility of assigning appropriate sentences based on aggravating and mitigating factors.
An aggravating factor is a factor that will increase a sentence, such as an offender’s criminal record. A mitigating factor is a factor that will decrease a sentence, such as it being the first time the offender has been found guilty of an offence.
Specifically, when it concerns a drug offence, the full circumstances of the offence are considered. For example, did the individual use violence or weapons when trafficking? Did the individual traffic in a school area to those under 18 years old? More scenarios with minimum sentences are found within section 5(3) of the Controlled Drugs and Substances Act.
There is no definite sentence for those who are first time offenders, but there are minimum and maximum sentences.
Where individual land on the spectrum between the minimum and maximum sentence depends on the circumstances stated in the Act as well as the aggravating/mitigating factors stated above.
How much does it cost to fight a Drug Possession For Trafficking Purposes Charge?
Drug possession for trafficking charge can have a wide range of factors that should be discussed with a lawyer. With that being said, a lawyer cannot accurately give a client the cost of fighting their case without knowing the case details in its entirety.
Any criminal charge can be detrimental, as a criminal background stays with a person for life. Contacting a defence lawyer immediately after being charged is the most appropriate action.
What are the chances of winning a Drug Possession For Trafficking Purposes Charge?
Chances of “winning”, or rather having the case withdrawn or the finding of innocence, are possible for drug possession for a trafficking charge.
This is largely dependent on the unique circumstances of the case, including the substance, and the accused themselves. In order to properly assess the chances of winning a case, contacting a defence lawyer from the very beginning is crucial.
A defence lawyer is able to go through your case and determine possible defences. Additionally, the lawyer will determine if there are any Charter violations, which can amount to a case being withdrawn or not pursued by the Crown. Again, each case is largely dependent on the unique circumstances of the case.