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Trafficking / Possession for the Purpose of Trafficking

The Charge

A person can be charged under the Cannabis Act for trafficking or possessing cannabis for the purpose of trafficking unless it is in accordance with the regulations set out in that Act. The penalties for trafficking cannabis illegally remain severe: if the Crown proceeds by indictment, the maximum sentence is up to 14 years in jail; should Crown proceed summarily, the maximum sentence is 6 months in jail.

With respect to other controlled drugs, the Controlled Drugs and Substances Act sets out that different potential penalties depend on the type and amount of drug involved. Controlled drugs and substances are grouped into “schedules” by the CDSA. Drugs are divided into groups according to their chemical composition. Some of the typical drugs are:

Schedule 1: cocaine, morphine, heroin, codeine, fentanyl, oxycodone, GHB, opium, amphetamines, MDMA
Schedule 2: cannabis, resin, and seeds
Schedule 3: LSD, psilocybin, mushrooms
Schedule 4: barbiturates, Clonazepam, Diazepam, and anabolic steroids
Schedule 5: precursors involved in the manufacturing of controlled substances

Penalties for both trafficking and possession for the purpose of trafficking in hard drugs is significant. The maximum sentence is up to lifetime imprisonment for Schedule 1 or 2 substances. The range of sentencing typically starts at 9-12 months in jail for a low level trafficking offence.

Courts have defined trafficking to include “giving” or “delivering” a drug to another person. Profit is not an element of the offence, however the Crown will certainly seek greater penalties where then can show that the offence was motivated by financial gain. The more the facts of the case point to the accused profiting from an organized distribution system, the greater the sentence Crown will seek upon conviction.

The Investigation

Police may be targeting a suspected drug trafficker based on information provided through a tip or, alternatively, police may literally stumble across a suspected drug trafficker during, say, a routine traffic stop or another encounter. In either situation, the law is the same. Police may not search someone for drugs unless they have “reasonable and probable grounds” to believe the person is in possession of a controlled substance. A mere hunch, or suspicion, is not enough.

As experienced drug defence lawyers, we can help clients understand their various rights under the Charter. First, everyone who is detained or arrested by police has the right to be promptly advised as to the reason for their detention and that they have the right to speak to a lawyer. This right is guaranteed by s. 10. The right to remain silent – i.e. the right to not provide a statement to police – is guaranteed by s. 7. In the context of a drug investigation, it is important for a suspect to know and understand that they have the right to remain silent upon arrest. Should charges be approved, the Crown will be obligated to provide full disclosure of the details of the case to the accused. There is clearly an advantage to understand the case against you before providing an explanation. This is the right of everyone in Canada.

Recent Successes

R. v. M.G. – Nanaimo Supreme Court

Charges: Break and Enter; Sexual Assault.
Issue: Whether there was a substantial likelihood of a conviction.
Result: Mr. Gauthier was able to persuade Crown counsel that the Crown lacked the necessary evidence to gain a conviction. On the eve of the trial, Crown entered a stay of proceedings, bringing the matter to an end. No criminal record.

R. v. H.A.S. – Vancouver Provincial Court

Charges: Sexual Assault (x4).
Issue: Given our client's extensive progress with rehabilitation and the collateral consequences of a conviction, whether it was appropriate for our client to be granted a conditional discharge.
Result: After hearing Mr. Mines' extensive submissions on our client's behalf, the trial judge granted our client a conditional discharge rather than imposing a conviction which would have resulted in a deportation order.

R. vs. D.A. – Kelowna Provincial Court

Charges: Assault with a Weapon; Obstruct Police Officer.
Issue: Despite the very serious nature of the offence (threatening to cause serious harm at knifepoint) whether a jail sentence was the appropriate sentence.
Result: Mr. Gauthier was able to direct our client through an intensive course of rehabilitation, and was ultimately able to persuade Crown counsel and the Court to grant our client a conditional sentece to be served in the community in a residential tratment facility. No jail.

R. vs. R.P. – Vancouver Provincial Court

Charge: Assault.
Issue: Given the extensive rehabilitation effort of our client, whether it was appropriate for the court to grant our client a conditional discharge.
Result: Mr. Mines was able to persuade the Court that provocation was a significant factor and that, despite kicking the complainant, the appropriate sentence was a discharge on condition of "no contact" for 12 months. No criminal conviction.

R. v. K.P. – Vancouver Provincial Court

Charge: Uttering Threats (reduced to Peace Bond).
Issue: Given the Charter issues that arose during our client's arrest, whether it was appropriate to continue with the criminal prosecution.
Result: Mr. Gauthier was able to persuade Crown counsel that police had likely violated our client's rights during his arrest and to proceed with a Peace Bond rather than the criminal charge. No criminal record.

R. vs. O.A. – Vancouver Provincial Court

Charges: Criminal Harassment (reduced to Peace Bond).
Issue: Given our client's significant self-rehabilitation, whether it was in the public interest to proceed with the criminal prosecution.
Result: Mr. Gauthier was able to persuade Crown counsel to end the criminal prosecution and to resolve the matter with a s. 810 Recognizance ("Peace Bond"). No criminal record.

R. vs. P.A.N. – West Vancouver Police Investigation

Charge: Fraud (from employer).
Issue: Given our client's cooperation with authorities and willingness to repay the alleged misappropriated funds, whether it was in the public interest to proceed with criminal charges.
Result: Mr. Gauthier was able to persuade the police investigator to refer the file to Restorative Justice rather than arresting our client and recommending a criminal prosecution. No charge was approved. No criminal record.

R. vs. M.P. – Vancouver Provincial Court

Charges: Assault (reduced to Peace Bond).
Issue: Given the rehabilitative steps we were able to guide our client through, whether it was in  the public interest continue with a criminal prosecution.
Result: Mr. Mines was able to persuade Crown counsel to proceed with a Peace Bond rather than the criminal assault charge. No criminal record.

R. vs. K.Q. – Richmond Provincial Court

Charge: Mischief to Property.
Issue: After Mr. Gauthier was able to facilitate making restitution on our client's belf, whether it was in the public interest top proceed with the criminal prosecution.
Results: Crown counsel accepted Mr. Gauthier's representations and concluded the matter by entering a stay of proceedings. no criminal record.

R. vs. A.V. – Duncan Provincial Court

Charge: Assault.
Issue: Given the information Mr. Johnston was able to provide to Crown counsel about our client's circumstances and the significant rehabilitation steps we were able to guide him through, whether it remained in the public interest to continue with the prosecution.
Result: Crown counsel accepted Mr. Johnston's representations and concluded the matter by entering a stay of proceedings. No criminal record.

R. vs. D.J. – Chilliwack Provincial Court

Charge: Assault (reduced to Peace Bond).
Issue: Given the rehabilitative steps we were able to guide our client through, whether a criminal prosecution was appropriate.
Result: Mr. Mines was able to persuade Crown counsel to proceed pursuant to a s. 810 Peace Bond, and to enter a stay of proceedings on the criminal charge. After hearing Mr. Mines' submissions, the Court placed our client on the Peace Bond. No criminal record.

R. v. Q.C. – Insurance Fraud Investigation

Charge: Insurance fraud over $5000 investigation.
Issue: Given our client's rehabilitation and repayment of disputed funds, whether it was in the public interest to proceed with a criminal prosecution.
Result: Mr. Gauthier was able to persuade the Insurance company to settle the matter on a civil basis. No criminal charhges were forwarded. No criminal record.

The Defence

Unreasonable Search

Section 8 of the Charter guarantees the right to be free from an unreasonable search and seizure. The role of defence counsel in a drug case often involves analyzing the actions of investigating police officers to test whether they have, in fact, conducted a lawful search as authorized by the Charter. Drug searches can take place in a variety of contexts and places. In some situations, police must obtain pre-authorization from a judge or justice in order to search a place or thing. The requirement to obtain a search warrant will depend on the privacy interest the accused has in the thing searched. For example, a person has a very high privacy interest in their home or in their personal computer. They tend to have a lower privacy interest in things such as their friend’s car or their employer’s desk. Where police overreach their authority and search someone on a mere hunch, or based on assumptions rather than fact, we will apply to the court under s. 24(2) of the Charter to have the evidence excluded from the trial. The general idea is that when police obtain evidence from an unlawful search that violates our client’s rights, the court ought to see the evidence as “tainted” and tending to bring the administration of justice into disrepute. Without the admission of the drug evidence into the trial, the court will find insufficient evidence to convict.

The Drugs were not for the Purpose of Trafficking

In order to prove possession for the purpose of trafficking, the Crown will usually bring a police expert witness to court. They will testify that the circumstances of the drug seizure tend to prove that the drugs were intended to be sold or distributed. Typical evidence relates to the way the drugs are packaged – many small packs suggest trafficking. The presence of scales, “score sheets,” cash and cell phones also tend to suggest trafficking. Our experience in defending drug charges allows us to develop arguments aimed at challenging expert Crown witnesses on their opinions that the circumstances of the drug seizure necessarily suggest trafficking rather than simple possession. In many cases we have been able to negotiate possession for the purpose of trafficking charges down to simple possession charges to avoid jail sentences for our clients.

Lack of Possession

In many situations, accused persons are arrested without drugs directly in their possession. For example, they may be driving someone else’s car and drugs are found in an unmarked box in the trunk. A roommate may be charged with possession for the purpose of trafficking, but none of the drugs are found in their personal space of the residence. In these situations, the Crown will seek to prove possession through indirect, or circumstantial evidence. As experienced defence lawyers, we understand the Crown’s burden in proving that an accused had the requisite knowledge and control of the substance in order to be convicted. We are dedicated to holding the Crown to the high standard that the law requires when prosecuting drug offences. We are committed to defending our client’s rights as guaranteed by the Charter.

Start with a free consultation.

If you are being investigated by police or if you’ve been charged with a criminal or driving offence, don’t face the problem alone. Being accused of an offence is stressful. The prospects of a criminal record or jail sentence can be daunting. Even if you think there is no defence, we may be able to help. To schedule a free initial consultation with one of our Vancouver lawyers, contact us now.