What is possession for the purpose of trafficking?

Police can charge you with possession for the purpose of trafficking if they find you with enough illegal drugs to indicate you were planning to sell to others. For example, if you are found with just over the 30-gram maximum allowed for dried marijuana, police will probably assume it is for personal consumption. However, if you are found with a kilogram of heroin, which is much more expensive and potent, they will probably assume you intended to traffic it.

Another indication is if you possess items a drug trafficker would use, such as a set of scales or baggies. With hard street drugs such as heroin or cocaine, traffickers buy large blocks of the drug then cut it into smaller sections to sell to others, who in turn cut it into smaller parts and sell to others. At the bottom of the chain, the final buyer may share it with friends, yet that sharing can also lead to trafficking charges.

What laws govern this crime?

The legislation governing illegal drugs in Canada is found in the Controlled Drugs and Substances Act (CDSA). The Act breaks down all the illegal drugs into various Schedules, with the hard street drugs such as opium, cocaine and fentanyl found in Section I. Section 5 (1) of the CDSA makes it illegal to traffic in any illegal drug, with the harshest penalty given to those who are selling Schedule I drugs. If you are found guilty of trafficking a Schedule I drug you will face a maximum sentence of life in prison.

The minimum sentence is one year in jail, if any of these aggravating factors are present:

  • If the trafficking was at the direction of benefit of a criminal organization;
  • If you used or threatened to use violence in committing the offence;
  • If you were carrying a weapon; or
  • If you were convicted of a drug offence within the previous 10 years.

The minimum punishment rises to two years if any of these factors are present:

  • If you committed the offence near a school or any other public place frequented by persons under the age of 18 years;
  • If you were in a prison; or
  • If you used the services of a person under the age of 18 in committing the offence.

If the drug you were found with is in Schedule III (which includes meth and LSD), the maximum sentence is 10 years if the charge is treated as an indictable offence and 18 months if it is treated as a summary conviction.

If the drug you were found with is in Schedule IV (the barbiturate family), the maximum sentence is three years for indictable offences and one year if treated as a summary conviction.

What is the penalty for importing or exporting drugs?

Section 6 of the CDSA makes it illegal to import or export any drug listed in the Act unless you are licensed to do so for scientific or medical purposes. If you intended to import or export less than one kilogram of a Schedule I or II drug, that will be treated as an indictable offence with the maximum penalty of life in prison, with a one-year minimum sentence if you:

  • committed the offence for the purposes of trafficking;
  • abused a position of trust or authority; or
  • had access to an area that is restricted to commit the offence.

If you intended to import or export more than one kilogram, the minimum punishment of imprisonment rises to two years, with the maximum of life in prison staying the same.

If the substance to be imported or exported falls into Schedule III, the maximum sentence is 10 years in prison if it is treated as an indictable offence or 18 months if it is treated as a summary conviction.

If you are charged with importing or exporting a Schedule IV drug, the maximum penalty for indictable offences is three years, and one year if the charge is treated as a summary conviction.

What does the court have to prove to convict?

In all criminal cases, the Crown must prove you are guilty of a crime beyond a reasonable doubt. If you only had a small amount of an illegal drug, your lawyer could argue it was for personal consumption and not trafficking. This defence will not work if you are caught with a large amount of drugs already split up into baggies.

In some cases, police may violate your Charter rights in their investigation. Section 8 of the Canadian Charter or Rights and Freedoms guarantees that you have the “right to be secure against unreasonable search or seizure.”

It also must be proven that the substance you were found with is listed in the CDSA and that you knew it was illegal to possess it.

What have judges said about this crime?

The court shows little mercy toward those convicted of possession for the purpose of trafficking, as these judgments show.

This observation about the dangers posed by those who traffic cocaine is contained in a 2012 Superior Court of Justice judgment. “Cocaine has a destructive effect on those who abuse it,” it reads. “This in itself is sufficient to characterize cocaine as a heinous substance. It's influence, however, does not end there. The harm caused by cocaine is never isolated to its users, because its users do not live in isolation. Friends and family members of cocaine users will inevitably be harmed by its insidious effects. Society as a whole suffers as well.”

In 2018, a man was sentenced to eight years in prison for trafficking fentanyl. The judgment notes: “It is clear that fentanyl is a highly dangerous drug. Generally speaking, offenders – even first offenders – who traffic significant amounts of fentanyl should expect to receive significant penitentiary sentences …. this is particularly so when the offender is motivated primarily for profit.”

In another 2018 Superior Court of Justice case, a man was sentenced to four years in prison for trafficking fentanyl, with the judge commenting on the drug’s potency in the decision. “Part of the problem is its potency,” it reads. “It [fentanyl] can be 20 to 50 times more potent than heroin. A dose of a mere 2 milligrams, as small as one grain of salt, can be lethal … not only to its buyers and users but additionally, to first responders, healthcare workers, citizens using naloxone kits to reverse the drug’s effects, and to anyone else accidentally inhaling even a grain of this powder.”

Major cocaine trafficking network broken up

In Brandon, Man., police say they believe they have destroyed the city's cocaine trafficking network after nearly a dozen people were arrested, according to a news report. It states that four kilograms of cocaine and $120,000 in cash were seized after raids on numerous homes with 11 people arrested, with many “in Canada illegally on expired study visas and who originally came to Canada from Nigeria or Jamaica.”

Those arrested face charges including trafficking cocaine, possession for the purpose of trafficking cocaine, conspiracy to traffic in cocaine, possession of the proceeds of crime and conspiracy to possess the proceeds of crime, the story states.

‘Persistent drug dealer’ scolded by judge

In Victoria, a “persistent drug dealer” was handed an eight-year prison sentence after being convicted of possession of fentanyl, heroin, cocaine and methamphetamine for the purpose of trafficking, according to a news report.

The man was already in prison serving a six-year prison sentence for similar drug-trafficking offences, the story states, with the eight-year sentence added onto that.

“The message must be clear: Courts will not condone drug trafficking,” the judge is quoted. “If you traffic, you will face a lengthy period of incarceration. The sentence must be a significant one. It cannot be viewed … as the cost of doing business.”

According to the report, the judge then addressed the convicted man, saying: “What surprises me probably the most is that you are well aware of the dangers of drugs and you’re constantly bemoaning the difficulties you have had throughout your life because of your drug addiction. And yet by trafficking drugs, you are introducing countless new people to addiction and condemning them to the same fate, all for your monetary gain without a care for what you are doing to them.”

How I can help you

The judicial system comes down hard on those convicted of trafficking drugs. However, every case is different and it is possible to get sentences reduced or even dropped, depending on the circumstances. By reviewing the evidence, I may be able to find inconsistencies or gaps that will raise doubts about the Crown’s case against you or can lead to a plea deal. Call me for a free consultation, in French or English. 

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