Drug Trafficking (Offence)

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Drug Trafficking
s. 5(1), (2) of the Controlled Drugs and Substances Act
Election / Plea
Crown Election Indictment / Hybrid
summary proceedings must initiate within 6 months of the offence (786(2))
Jurisdiction Prov. Court

Sup. Court w/ Jury (*)
Sup. Court w/ Judge-alone (*)

* Must be indictable. Preliminary inquiry also available.
Types of Release Release by Officer, Officer-in-Charge, or Judge (varies on charge)
Summary Dispositions
Avail. Disp. varies by Schedule
Minimum varies by Schedule
Maximum varies by Schedule
Indictable Dispositions
Avail. Disp. varies by Schedule
Minimum varies by Schedule
Maximum varies by Schedule
Reference
Offence Elements
Sentence Digests

Overview

Offences relating to drug trafficking are found in Part I of the Controlled Drugs and Substances Act relating to "Offences and Punishment". Pleadings
Offences under s. 5 [Schedule I] are straight indictable. There is a Defence election of Court under s. 536(2).

Offences under s. 5(3)(a.1) [Schedule II] are absolute jurisdiction offences under s. 553(a)(i) and so does not have a defence election of court. It must be tried by a provincial court judge.

Offences under s. 5 [Schedule III or IV] are hybrid with a Crown election. If prosecuted by indictment, there is a Defence election of Court under s. 536(2).

Section 727 notice prior to plea is required if Crown is relying upon increased duration on a subsequent s. 109 weapons prohibition order.

Release
When charged under s. 5 [Schedule I or II], the accused must be held by police when arrested, they must be brought before a judge or justice under s. 503 and are only to be released by an order of a judge or justice under s. 515. A youth will be subject to a maximum penalty of 3 years under s. 42(15) of the YCJA and can be given an attendance notice without arrest under s. 496 or a summons and if arrested, can be released by the arresting officer under s. 497 on a attendance notice or by an officer-in-charge under s. 498 on a promise to appear or recognizance. The youth can also be released by a justice under s. 515.

When charged under s. 5 [Schedule III or IV], the accused can be given an attendance notice without arrest under s. 496 or a summons. If arrested, he can be released by the arresting officer under s. 497 on a attendance notice or by an officer-in-charge under s. 498 on a promise to appear or recognizance. He can also be released by a justice under s. 515.

Under s. 515(6)(d) offences under s. 5(3)(a) [Schedule I or II] are subject to a reverse onus on bail where it is "an offence punishable by imprisonment for life under any of sections 5 to 7 of the Controlled Drugs and Substances Act or the offence of conspiring to commit such an offence".

There will be a presumption of custody (reverse onus) if the offence, prosecuted by indictment, was committed:

  • while at large under s. 515 [bail release], 679 or 680 [release pending appeal or review of appeal] (s. 515(6)(a)(i));
  • "for the benefit of, at the direction of, or in association" with a criminal organization (s. 515(6)(a)(ii));
  • where the offence involved a firearm, cross-bow, prohibited weapon restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance, while the accused was subject to a prohibition order preventing possession of these items (s. 515(6)(a)(viii)); or
  • where the accused is not "ordinarily a resident in Canada" (s. 515(6)(b)).

Publication Bans
For all offences there is a discretionary general publication ban available on application of the Crown, victim or witness to prohibit the publishing of "any information that could identify the victim or witness" under s. 486.5(1) where it is "necessary" for the "proper administration of justice". Other available publication bans include prohibitions for publishing evidence or other information arising from a bail hearing (s. 517), preliminary inquiry (s. 539) or jury trial (s. 648). There is a mandatory publication ban in all youth prosecutions on information tending to identify young accused under s. 110 of the YCJA or young victim under s. 111 of the YCJA.

Offence Designations
Offences under s. 5 CDSA are designated offences eligible for wiretap under s. 183.

Offences under s. 5 CDSA are designated "serious personal injury" offences under s. 752(a) only if it has a maximum penalty of 10 years incarceration or more and involves "use or attempted use of violence against another person" or "conduct endangering or likely to endanger the life or safety of another person or inflicting or likely to inflict severe psychological damage on another person".

Under s. 8 of the Controlled Drugs and Substances Act, the Court is not required to impose a mandatory minimum sentence unless notice is given before plea.

See below in Ancillary Sentencing Orders for details on designations relating to sentencing orders.

Offence Wording

Trafficking in substance
5. (1) No person shall traffic in a substance included in Schedule I, II, III or IV 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 or IV.
...
1996, c. 19, s. 5; 2012, c. 1, s. 39.


CDSA

Proof of the Offence

Proving Possession for the Purpose of Trafficking under s. 5 CDSA should include:[1]

  1. identity of accused as culprit
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. Possession of Substance (Knowledge, consent, control)
    1. must have knowledge of the illegal nature of the substance
  5. Substance is a Control Substance under the CDSA (certificate of analysis, chain of possession, amounts found)
  6. the culprit knew of (or held a belief as to) the nature of the substance
  7. Possession of Substance was not authorized
  8. The culprit intended to traffic the Substance

Proving Trafficking should include:

  1. identity of accused as culprit
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. the culprit was trafficking in a substance
  5. the substance was Schedule I to V Controlled Substance
  1. R v Chan, 2003 CanLII 52165 (ON CA), (2003), 18 C.R. (6th) 322 at 30 to 32

Interpretation of the Offence

See also: Drug Trafficking

Where the drug is under Schedule II, the offence is an absolute jurisdiction offence and must be tried in provincial court.[1]

  1. see s. 553

Typical Defences

Sentencing

For General Sentencing Principles for all drug offences, see Sentencing for Drug Offences

History

See Also

References