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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. vs. G.S. – North Vancouver Provincial Court

Charge: Assault (domestic).
Issue: Given the rehabilitative steps we were able to guide our client through, whether it was in the public interest to continue with the prosecution.
Result: Mr. Mines was able to persuade Crown counsel to enter a stay of proceedings, brining the matter to an end. No criminal record.

B.G. – Vancouver Provincial Court

Charge: Theft/Fraud Over $5000 (from employer).
Issue: Given the self rehabilitation and civil settlement made by our client, whether a non-custodial sentence was appropriate in this $60,000 theft from employer case.
Result: Mr. Gauthier was able to persuade the Court that the appropriate sentence was an 18 month community-based sentence with 6 months of house arrest. No jail.

R. vs. J.C. – Vancouver Provincial Court

Charge: Assault (domestic).
Issue: Given the rehabilitative steps we were able to guide our client through, whether it was in the public interest for Crown counsel to continue the prosecution.
Result: Mr. Mines was able to provide new information to Crown and was ultimately able to persuade Crown to enter a stay of proceedings. No criminal record.

R. vs. S.L. – Insurance Fraud Investigation

Charge: Fraud Over $5000.
Issue: Given our client's settlement of the fraud claim by paying funds back on a "without prejudice" basis, whether it was in the public interest to proceed with a criminal prosecution.
Result: Mr. Gauthier was able to persuade the investigator to not forward any report for charge assessment. No charges were approved. No criminal record.

R. vs. K.A. – Surrey Provincial Court

Charge: Assault Causing Bodily Harm.
Issue: Whether the complainant and the Crown witnesses gave reliable and crdible evidence at trial.
Result: After vigorous cross examination, the trail judge accepted Mr. Gauthier's submissions that Crown counsel had failed to prove its case. Not guilty verdict. No criminal record.

R. vs. X.L. – Vancouver Provincial Court

Charge: Assault (domestic).
Issue: Whether the information police provided to Crown counsel would cause Crown to conclude there was a substantial likelihood of obtaining a conviction.
Result: Mr. Mines provided information to Crown on our client's behalf. He was able to persuade Crown that our client was in fact the victim of an assault and was acting in self defence. No charges were approved. No criminal record.

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

Charges: Criminal Harassment (domestic).
Issue: Whether our client's mental state was such that Crown counsel could prove that she had the necessary level of intent to be convicted of a criminal offence.
Result: Mr. Gauthier was able to provide our client's medical documentation to Crown which resulted in Crown deciding not to proceed with the prosecution. Stay of proceedings. No criminal record.

R. vs. J.X. – Vancouver Provincial Court

Charges: Driving while prohibited (MVA).
Issue: Whether the delay in approving the charge was relevant to our client's right to a speedy trial.
Result: Mr. Mines was able to persuade Crown counsel to proceed on the lesser offence of driving without a valid driver's licence. Rather than a 12 month driving prohibition and 10 penalty points, our client was sentenced to a 3 month driving prohibition and received only 3 penalty points.

R. vs. Q.B. – North Vancouver RCMP investigation

Charges: Sexual assault.
Issue: Whether or not the acts complained of were consensual or not, and whether it was in the public interest to proceed with a criminal prosecution.
Result: Mr. Mines provided further information to th einvestigator on our client's behalf that ultimately led to police declining to recommend any criminal charges. No charge was approved. No criminal record.

R. vs. J.G. – Vancouver Provincial Court

Charges: Assult (domestic).
Issue: Given the rehabilitative steps we were able to guide our client through, whether it was in the public interest for Crown counsel to continue the criminal prosecution.
Result: Based on the information Mr. Mines provide regarding our client, Crown directed a stay of proceedings bringing the matter to an end. No criminal record.

R. vs. E.E. and B.L. – Insurance Fraud Investigation

Charges: Fraud; misrepresentation.
Issue: Whether it was in the public interest to proceed with a criminal investigation and prosecution.
Result: Mr. Gauthier was able to negotiate a civil settlement on our clients' behalf resulting in an end to the matter. No police investigation. No criminal record.

R. vs. S.G. – North Vancouver Provincial Court

Charges: Assault (x2). Issue: Whether our client was involved in a consensual fight; used reasonable force in defending himself, or was guilty of two counts of assault. Result: At the conclusion of  a three day trial and hearing Mr. Gauthier's submissions on our client's behalf, the trial judge found our client not guilty on both counts. No jail. 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.