Drug Trafficking Lawyers

What is Drug Trafficking?

Drug trafficking is a contravention of the Controlled Drugs and Substances Act, which makes it a serious offence to sell, administer, give, transfer, transport, send or deliver an illegal drug; sell an authorization to obtain an illegal drug; or offer to do any of the aforementioned. 

While drug trafficking is not a Criminal Code offence, it is prosecuted in the same manner as a criminal offence and carries criminal penalties. 

To obtain a conviction for drug trafficking, the Crown must prove beyond a reasonable doubt:

• You were knowingly trafficking a drug or substance
• The drug or substance is listed in Schedule I, II, III, IV or V under the Controlled Drugs and Substances Act

The sale of a scheduled drug is not necessary to be charged with or convicted of trafficking. Merely moving, delivering, distributing, sharing or giving the drug away for free — or even offering to do any of these things — amounts to trafficking. 

Possession for the Purpose of Trafficking

Possession for the purpose of trafficking is a contravention of the Controlled Drugs and Substances Act, which makes it a serious offence to be in possession of a scheduled drug for the purpose of selling, administering, giving, transferring, transporting, sending or delivering it. 

While possession for the purpose of trafficking is not a Criminal Code offence, it is prosecuted in the same manner and carries criminal penalties. 

To obtain a conviction for possession for the purposes of trafficking, the Crown must prove beyond a reasonable doubt:

• You were in possession of a scheduled drug under the Controlled Drugs and Substances Act
• You knew you were in possession of a scheduled drug
• Your possession of the drug was not authorized
• You possessed the drug for the purpose of trafficking it

Possession for the purpose of trafficking charges require proof of an intent to traffic. The amount and packaging of the drugs can be critical pieces of evidence for the Crown in proving that possession was not for personal consumption.

Conspiracy to Traffic

Conspiracy, outlined in section 465 of the Criminal Code of Canada, occurs when you agree, with one or more people, to commit a crime. Conspiracy to traffic, then, occurs when you make an agreement with one or more parties to traffic drugs. Whether you actually trafficked is irrelevant. Simply your intention to carry out the crime is required to make out a charge of conspiracy. 

The Crown Prosecutor must prove the conspiracy and your membership in it. For this, most conspiracy charges rely on evidence produced by authorized surveillance methods.

To obtain a conviction of conspiracy to traffic, the crown must prove beyond a reasonable doubt:

• There was an agreement made between two or more people
• The parties intended to agree to put a common design into effect and agreed to do so

An essential element of conspiracy is the agreement between two or more parties. An agreement can be explicit or implicit. All parties must collaborate to create a common, criminal goal, and be aware of this objective and the agreement to realize it.

Penalties for conspiracy are the same as those for the offence you allegedly conspired to commit. Conspiracy to traffic therefore carries the same penalties as trafficking and possession for the purpose of trafficking. However, due to the necessary involvement of two or more people, which increases the reach and complexity of the crime, conspiracy is generally treated more seriously on sentencing.

Controlled Drugs and Substances Act

Administered under the authority of Health Canada, the Controlled Drugs and Substances Act and the Act’s regulations create a legislative framework regulating the import, export, possession, production, distribution and sale of controlled substances and their precursors, including those used in the production of illegal drugs.

Scheduled Substances

The Controlled Drugs and Substances Act classifies drugs according to a Schedule, which ranks them according to their perceived threat to society and, to some degree, their street value. Schedule I drugs, including cocaine, methamphetamine, fentanyl, ecstasy and many opiates, are considered the most dangerous and therefore carry the most severe penalties. Schedule II, III, IV, and V, which represent drugs considered less dangerous and drug precursors, carry milder penalties. Even within a Schedule, penalties may differ. Crack cocaine, for instance, attracts more severe consequences than powdered cocaine.

Drug Trafficking in the Controlled Drugs and Substances Act

Regarding trafficking, Section 2 of the Controlled Drugs and Substances Act states traffic means, in respect of a substance included in any of Schedules I to V,

1. to sell, administer, give, transfer, transport, send or deliver the substance,
2. to sell an authorization to obtain the substance, or
3. to offer to do anything mentioned in paragraph (a) or (b),

Concerning trafficking in substance, Section 5 of the Controlled Drugs and Substances Act states:

5 (1) 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.

Possession for purpose of trafficking(2) No person shall, for the purpose of trafficking, possess a substance included in Schedule I, II, III, IV or V.

Punishment(3) Every person who contravenes subsection (1) or (2)

1. 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
1. to a minimum punishment of imprisonment for a term of one year if
1. 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 theCriminal Code,
2. the person used or threatened to use violence in committing the offence,
3. the person carried, used or threatened to use a weapon in committing the offence, or
4. 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
2. to a minimum punishment of imprisonment for a term of two years if
1. 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,
2. the person committed the offence in a prison, as defined in section 2 of theCriminal Code, or on its grounds, or
3. the person used the services of a person under the age of 18 years, or involved such a person, in committing the offence;
2. if the subject matter of the offence is a substance included in Schedule III or V,
1. is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years, or
2. is guilty of an offence punishable on summary conviction and liable to imprisonment for a term not exceeding eighteen months; and
3. where the subject-matter of the offence is a substance included in Schedule IV,
1. is guilty of an indictable offence and liable to imprisonment for a term not exceeding three years, or
2. is guilty of an offence punishable on summary conviction and liable to imprisonment for a term not exceeding one year.

Interpretation(5) For the purposes of applying subsection (3) in respect of an offence under subsection (1), a reference to a substance included in Schedule I, II, III, IV or V includes a reference to any substance represented or held out to be a substance included in that Schedule.

Drug Trafficking Charges

Upon an allegation of drug trafficking, conspiracy to traffic, or possession for the purpose of trafficking, police will investigate and, if they believe there is sufficient evidence, proceed to recommend charges to Crown Counsel. 

When you are charged with trafficking, conspiracy to traffic, or possession for the purpose of trafficking, you will either be released by police or held for a bail hearing. If permitted to leave, the releasing officers will provide you with a document stating when and where you must appear in court, as well as any conditions related to your release. Conditions will be imposed on your release regardless of whether you appear before a Justice of the Peace or are released by police.

Drug Trafficking Bail Conditions

So long as you lack a history of violence and prior drug convictions, the court can usually be satisfied that releasing you from custody before trial is safe and appropriate. Your problem then becomes navigating the restrictive bail conditions imposed on your release.

Your bail conditions may require you to:

• Avoid all contact with co-conspirators 
• Abstain from all direct or indirect communication with co-conspirators
• Abstain from alcohol and non prescription drugs
• Demonstrate law abiding behaviour
• Abide by a curfew
• Provide your current address to the court (and notify the Court of any address changes)
• Remain within a specific geographic area
• Forfeit your passport
• Abstain from using a cellular device or smartphone 
• Report to a bail supervisor

Factors that affect whether you’re granted bail and your bail conditions include your:

• Likelihood of attending court
• Criminal history
• History of drug and alcohol use 
• Physical state
• Mental condition
• Employment situation
• Living situation
• Standing in the community
• Schedule (I, II, III, IV or V) and amount of the drug in question

In certain circumstances bail conditions can be varied, but this takes time and negotiations with the Crown. Bail conditions must be complied with unless and until they are varied lest you be charged with breaching bail and jailed.

Penalties for Drug Trafficking

The maximum penalties for drug trafficking, conspiracy to traffic, and possession for the purpose of trafficking are effectively the same, with consequences dictated by the Schedule (I, II, III, IV, or V) and amount of the drug in question, your criminal history, and aggravating factors. Considered aggravating circumstances on sentencing, previous drug offences, committing the offence close to a school, or involving weapons, threats or juveniles in the offence will lead to harsher penalties.

Penalties for Conspiracy to Traffic

Penalties for conspiracy to traffic are the same as those for trafficking and possession for the purpose of trafficking. Because of the involvement of two or more people, which extends the potential reach and complexity of the crime, conspiracy charges are generally treated more seriously than mere trafficking charges on sentencing. 

Penalties for Possession for the Purpose of Trafficking

While penalties for possession for the purpose of trafficking are the same as those for drug trafficking, such convictions typically result in lighter sentences than trafficking convictions. 

Consequences for Trafficking Schedule I and II Drugs

• Maximum penalty of life in prison (purely indictable offence)
• Minimum one year in prison when the offence is committed with threats, violence, or at the behest of a criminal organization
• Possible revocation of immigration status
• Employment problems
• Travel restrictions
• Probation
• Fines
• Criminal record

Consequences for Trafficking Schedule III or V Drugs

• Maximum penalty of ten years in prison (if guilty of an indictable offence)
• Maximum penalty of 18 months in prison if charged summarily
• Possible revocation of immigration status
• Employment problems
• Travel restrictions
• Probation
• Fines
• Criminal record

Consequences for Trafficking Schedule IV Drugs

• Maximum penalty of three years in prison (if guilty of an indictable offence)
• Maximum penalty of one year in prison if charged summarily
• Possible revocation of immigration status
• Employment problems
• Travel restrictions
• Probation
• Fines
• Criminal record

Defending Drug Trafficking Charges

Drug trafficking allegations require immediate legal attention. Outcomes in drug trafficking cases can depend as much on the circumstances of your case as on the lawyer you hire. Retaining Pender Litigation puts not only a skilled drug offence lawyer by your side but our entire team at your back, bolstering your defence with our collective insight, experience and expertise. 

Ways our firm can assist you include:

• Diverting your case from the court process via an alternative measures program
• Defending you at trial
• Sentencing

Alternative Measures Programs

You may be considered for an alternative measures program on your first offence if the charges against you are minor and you admit to and take responsibility for your actions. (Trafficking or possessing for the purpose of trafficking Schedule I drugs generally preclude alternative measures.) Overseen by community probation offices, alternative measures programs divert your case from the court process. Alternative measures programs give you the opportunity to make amends through an agreed upon set of steps. If these steps are taken, your charges will be withdrawn and you will not receive a criminal record.

Alternative measures may include:

• Compensation for the loss or damage
• An apology
• Community service work
• Culturally-based practices for Indigenous people

Drug Trafficking and Conspiracy to Traffic Trial Defences

Should your case go to trial, defences to drug trafficking, conspiracy to traffic and possession for the purpose of trafficking charges include (but are not limited to):

• Lack of knowledge or control: If you had no idea that you were transporting or selling a drug, or you believed you were transporting or selling a legal substance, you may be able to satisfy the judge that you lacked the knowledge or control over the drug required to secure a criminal conviction. If the Crown successfully argues you were willfully blind to the drug’s presence — that you failed to confirm or disconfirm the presence of the drug, specifically to protect your ability to plead ignorance in the event you were discovered possessing or trafficking it — you may still be found guilty.
• Identity: Crown Counsel must demonstrate beyond a reasonable doubt that you were indeed there and trafficked, or intended to traffic, drugs. If there is any doubt as to whether it was you, you may be found not guilty. This defence is bolstered by an alibi, substantiated by eyewitness, video or electronic evidence, placing you somewhere else at the time of the offence.
• Legal substance: The substance in question must be an illegal drug to yield a criminal conviction. Sometimes the police analysis of the substance is incorrect due to the improper administration or interpretation of the analysis. 
• Entrapment: Neither a common nor formal defence, entrapment is a form of abuse of process. There are two routes to a finding of entrapment. The first is where the state provides a person with an opportunity to commit an offence either without acting on a reasonable suspicion that the person was already engaged in criminal activity or pursuant to a bona fide inquiry. The second is where the police go beyond providing an opportunity and induce the commission of the offence
• Charter of Rights and Freedoms violations: Charter applications, motions that detail the ways in which police violated your Charter rights in a criminal investigation, can be used to seek the exclusion of evidence. Violations that may be argued in your defence include an improperly issued search warrant, searching your car without permission, not letting you speak with a lawyer and more. On the basis of one or more breaches of your rights, an application can be made to have evidence excluded from your trial. 

Sentencing

If your case cannot be resolved by way of an alternative measures program, dismissal or acquittal, we can negotiate sentencing options with the Crown, helping you to avoid a criminal record, or ensuring your freedom is minimally curbed upon sentencing.

Learn About Drug Trafficking

• What is Drug Trafficking?
• Drug Trafficking in the Controlled Drugs and Substances Act
• Drug Trafficking Charges
• Drug Trafficking Bail Conditions
• Penalties for Drug Trafficking
• Defending Drug Trafficking Charges