Drug Trafficking: Difference between revisions
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==Offer to Sell== | ==Offer to Sell== | ||
Trafficking by offer under s. 2(2)(c) only requires that the crown prove an intent to make the offer. It is not necessary to prove that the accused had an intent to follow through with the offer.<Ref> | Trafficking by offer under s. 2(2)(c) only requires that the crown prove an intent to make the offer. It is not necessary to prove that the accused had an intent to follow through with the offer.<Ref> | ||
R v Mamchur, [http://canlii.ca/t/g7hr1 1978 CanLII 1813] (SK CA), [1978] 3 WWR 481 (SKCA) at p. 483<br> | R v Mamchur, [http://canlii.ca/t/g7hr1 1978 CanLII 1813] (SK CA), [1978] 3 WWR 481 (SKCA){{perSKCA|Culliton CJ}} at p. 483<br> | ||
R v Jones, [http://canlii.ca/t/g8dzf 1988 CanLII 4871] (SK CA), (1988) 74 Sask R. 4 (SKCA) at 10<br> | R v Jones, [http://canlii.ca/t/g8dzf 1988 CanLII 4871] (SK CA), (1988) 74 Sask R. 4 (SKCA){{perSKCA| Vancise JA}} at 10<br> | ||
R v Campbell, [http://canlii.ca/t/1fqp4 1999 CanLII 676] (SCC), [1999] 1 SCR 565 at 25<br> | R v Campbell, [http://canlii.ca/t/1fqp4 1999 CanLII 676] (SCC), [1999] 1 SCR 565{{perSCC|Binnie J}} at 25<br> | ||
R v Murdock, [http://canlii.ca/t/6mdj 2003 CanLII 4306] (ON CA), (2003), 176 CCC (3d) 232 (Ont. C.A.) at 14<br> | R v Murdock, [http://canlii.ca/t/6mdj 2003 CanLII 4306] (ON CA), (2003), 176 CCC (3d) 232 (Ont. C.A.){{perONCA|Doherty JA}} at 14<br> | ||
R v Crain, [http://canlii.ca/t/fpw5n 2012 SKCA 8] (CanLII)<br> | R v Crain, [http://canlii.ca/t/fpw5n 2012 SKCA 8] (CanLII){{perSKCA|Richards JA}}<br> | ||
R v Ralph, [http://canlii.ca/t/fm6v8 2011 ONSC 3558] (CanLII), [2011] O.J. No. 3156 (S.C.J.), aff’d on other grounds [2014] O.J. No. 13 (C.A.) | R v Ralph, [http://canlii.ca/t/fm6v8 2011 ONSC 3558] (CanLII), [2011] O.J. No. 3156 (S.C.J.){{perONSC|Belobaba J}}, aff’d on other grounds [2014] O.J. No. 13 (C.A.), [http://canlii.ca/t/g2grp 2014 ONCA 3] (CanLII)<br> | ||
</ref> | </ref> | ||
As such, there is no need to prove that the accused had drugs on themselves at the time or was capable of fulfilling the request.<ref> | As such, there is no need to prove that the accused had drugs on themselves at the time or was capable of fulfilling the request.<ref> | ||
e.g. R v Petrie, [1947] O.W.N. 601 (C.A.){{NOCANLII}} -- drugs offered weren’t available;<br> | e.g. R v Petrie, [1947] O.W.N. 601 (C.A.){{NOCANLII}} -- drugs offered weren’t available;<br> | ||
Murdock{{supra}} -- offer was withdrawn <br> | Murdock{{supra}} -- offer was withdrawn <br> | ||
R v Sherman, [http://canlii.ca/t/gd9j6 1977 CanLII 1908] (BC CA), [1977] 5 W.W.R. 283 (BCCA) -- offer was made for purpose of ripping buyer off<br> | R v Sherman, [http://canlii.ca/t/gd9j6 1977 CanLII 1908] (BC CA), [1977] 5 W.W.R. 283 (BCCA){{perMcFarlane JA}} -- offer was made for purpose of ripping buyer off<br> | ||
R v Reid [http://canlii.ca/t/1mmhl 1996 CanLII 5213], (1996), 155 N.S.R. (2d) 368 (NSCA) -- no evidence that drugs were even available to seller<br> | R v Reid [http://canlii.ca/t/1mmhl 1996 CanLII 5213], (1996), 155 N.S.R. (2d) 368 (NSCA){{perNSCA|Flinn JA}} -- no evidence that drugs were even available to seller<br> | ||
R v Brown (1953), 9 W.W.R. (N.S.) 701 (BCCA), [http://canlii.ca/t/htv8s 1953 CanLII 475] (BC CA) -- drugs not on the seller<br> | R v Brown (1953), 9 W.W.R. (N.S.) 701 (BCCA), [http://canlii.ca/t/htv8s 1953 CanLII 475] (BC CA){{perBCCA|O'Halloran JA}} -- drugs not on the seller<br> | ||
</ref> | </ref> | ||
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The intent will depend on the presence of elements such as discussion of product, pricing and method of transaction.<ref> | The intent will depend on the presence of elements such as discussion of product, pricing and method of transaction.<ref> | ||
e.g. Ralph{{supra}} at para 38<br> | e.g. Ralph{{supra}} at para 38<br> | ||
R v Burke, [http://canlii.ca/t/g71j5 2014 ONSC 3199] (CanLII) at para 28<br> | R v Burke, [http://canlii.ca/t/g71j5 2014 ONSC 3199] (CanLII){{perONSC|Trotter J}} at para 28<br> | ||
</ref> | </ref> | ||
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An observed hand-to-hand transaction may be evidence of drug trafficking. Such circumstantial evidence will only be probative if innocent explanations can be excluded.<ref> | An observed hand-to-hand transaction may be evidence of drug trafficking. Such circumstantial evidence will only be probative if innocent explanations can be excluded.<ref> | ||
R v | R v NO, [http://canlii.ca/t/22ms4 2009 ABCA 75] (CanLII){{TheCourt}} at para 41, 42<br> | ||
</ref> | </ref> | ||
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==Aiding or Abetting Drug Buyers== | ==Aiding or Abetting Drug Buyers== | ||
Where the accused is not proven to have trafficked in drugs, the only other way that they can be liable for trafficking is if they are guilty as a party under s. 21(1)(b) or (c) for trafficking.<ref> | Where the accused is not proven to have trafficked in drugs, the only other way that they can be liable for trafficking is if they are guilty as a party under s. 21(1)(b) or (c) for trafficking.<ref> | ||
R v Poitras, [http://canlii.ca/t/1xv18 1973 CanLII 156] (SCC)<br> | R v Poitras, [http://canlii.ca/t/1xv18 1973 CanLII 156] (SCC){{perSCC|Dickson J}}<br> | ||
</ref> | </ref> | ||
An "agent" for a purchaser or someone who "assists a purchaser to buy narcotics" will come into the definition of aiding or abetting under s. 21.<ref> | An "agent" for a purchaser or someone who "assists a purchaser to buy narcotics" will come into the definition of aiding or abetting under s. 21.<ref> | ||
R v Greyeyes, [http://canlii.ca/t/1mb6s 1996 CanLII 5030] (SKCA) at para 32 | R v Greyeyes, [http://canlii.ca/t/1mb6s 1996 CanLII 5030] (SKCA){{perSKCA|Cory JA}} at para 32<br> | ||
</ref> This includes "bringing together the source of supply and the prospective purchaser".<Ref> | </ref> This includes "bringing together the source of supply and the prospective purchaser".<Ref> | ||
Greyeyes | Greyeyes{{ibid}} | ||
</ref> It will unlikely to be sufficient if the assistance is "rendered solely to the purchaser".<ref> | </ref> It will unlikely to be sufficient if the assistance is "rendered solely to the purchaser".<ref> | ||
Greyeyes at para 6<br> | Greyeyes{{ibid}} at para 6<br> | ||
</ref> | </ref> | ||
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==Opinion Evidence on Trafficking== | ==Opinion Evidence on Trafficking== | ||
To prove that someone was in possession of a controlled substance ''for the purpose of trafficking'', the Crown must call expert evidence to | To prove that someone was in possession of a controlled substance ''for the purpose of trafficking'', the Crown must call expert evidence to give an opinion that the circumstances allow for the inference that the possessor intended to traffic.<ref> | ||
E.g. See R v Balla, [http://canlii.ca/t/g6tvk 2014 ABQB 127] (CanLII) at paras 50 to 62</ref> | E.g. See R v Balla, [http://canlii.ca/t/g6tvk 2014 ABQB 127] (CanLII){{perABQB|Yamauchi J}} at paras 50 to 62</ref> | ||
See also: [[Expert Evidence]] for details on the law of expert evidence. | See also: [[Expert Evidence]] for details on the law of expert evidence. | ||
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'''Amount of drugs'''<br> | '''Amount of drugs'''<br> | ||
Trafficking can be inferred where the quantity/purity/value of drugs.<ref> | Trafficking can be inferred where the quantity/purity/value of drugs.<ref> | ||
R v Le, [http://canlii.ca/t/4z5z 2001 BCCA 658] (CanLII)<br> | R v Le, [http://canlii.ca/t/4z5z 2001 BCCA 658] (CanLII){{perBCCA|Rowles JA}}<br> | ||
R v Adelberg, [http://canlii.ca/t/4z5d 2001 BCCA 637] (CanLII)<br> | R v Adelberg, [http://canlii.ca/t/4z5d 2001 BCCA 637] (CanLII){{perBCCA|Hall JA}}<br> | ||
R v L'Huillier, [http://canlii.ca/t/1m2mt 1997 CanLII 9606] (NB Q.B.)<br> | R v L'Huillier, [http://canlii.ca/t/1m2mt 1997 CanLII 9606] (NB Q.B.){{perNBQB|Riordon J}}<br> | ||
R v Falahatchian, [http://canlii.ca/t/6jkf 1995 CanLII 941] (ON C.A.)<br> | R v Falahatchian, [http://canlii.ca/t/6jkf 1995 CanLII 941] (ON C.A.){{TheCourt}}<br> | ||
R v Naugler, [http://canlii.ca/t/2dbcr 1994 ABCA 110] (CanLII)<br> | R v Naugler, [http://canlii.ca/t/2dbcr 1994 ABCA 110] (CanLII){{perABCA|McFadyen JA}}<br> | ||
</ref> | </ref> | ||
Where an accused is a user of drugs, there may be evidence suggestive that the drugs found in their possession may be consistent with personal use as opposed to trafficking. The amounts required to maintain the addiction and the habits of typical users are relevant. Either party is permitted to lead evidence concerning typical use, however, this usually takes the form of expert evidence.<ref> R v Petavel, [http://canlii.ca/t/1q86k 2006 BCSC 1931] (CanLII)</ref> | Where an accused is a user of drugs, there may be evidence suggestive that the drugs found in their possession may be consistent with personal use as opposed to trafficking. The amounts required to maintain the addiction and the habits of typical users are relevant. Either party is permitted to lead evidence concerning typical use, however, this usually takes the form of expert evidence.<ref> R v Petavel, [http://canlii.ca/t/1q86k 2006 BCSC 1931] (CanLII){{perBCSC|Barrow J}}</ref> | ||
The amount of drugs ''alone'' cannot be used to establish trafficking.<ref> | The amount of drugs ''alone'' cannot be used to establish trafficking.<ref> | ||
R v McCallum [http://canlii.ca/t/1nw48 2006 SKQB 287] (CanLII), (2006), 281 Sask.R. 272 at 28<br> | R v McCallum [http://canlii.ca/t/1nw48 2006 SKQB 287] (CanLII), (2006), 281 Sask.R. 272{{perSKQB|Krueger J}} at 28<br> | ||
R v Mehari, [http://canlii.ca/t/25039 2009 ABPC 217] (CanLII) at para 7</ref> | R v Mehari, [http://canlii.ca/t/25039 2009 ABPC 217] (CanLII){{perABPC| Lamoureux J}} at para 7</ref> | ||
Marijuana amounts in the range of 3 pounds have been found to be unreasonable to be considered consumable for personal use. | Marijuana amounts in the range of 3 pounds have been found to be unreasonable to be considered consumable for personal use. | ||
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Cocaine amounts of 1kg have been found to be unreasonable to be for personal use.<Ref> | Cocaine amounts of 1kg have been found to be unreasonable to be for personal use.<Ref> | ||
R v Wilcox, [http://canlii.ca/t/g34rf 2014 BCCA 65] (CanLII) | R v Wilcox, [http://canlii.ca/t/g34rf 2014 BCCA 65] (CanLII){{perBCCA|Kirkpatrick JA}} | ||
</ref> | </ref> | ||
'''Money'''<br> | '''Money'''<br> | ||
Large quantities of unexplained wealth can allow a judge to lead to the conclusion of trafficking. This is particularly true where cash is in small denominations and is found near drugs.<ref> | Large quantities of unexplained wealth can allow a judge to lead to the conclusion of trafficking. This is particularly true where cash is in small denominations and is found near drugs.<ref> | ||
R v Alberts, [http://canlii.ca/t/1f9d9 1999 CanLII 2246] (ON C.A.)<br> | R v Alberts, [http://canlii.ca/t/1f9d9 1999 CanLII 2246] (ON C.A.){{TheCourt}}<br> | ||
R v Le, [http://canlii.ca/t/4z4b 2001 BCCA 694] (CanLII) | R v Le, [http://canlii.ca/t/4z4b 2001 BCCA 694] (CanLII){{perBCCA|Esson JA}} | ||
</ref> | </ref> | ||
'''Packaging'''<br> | '''Packaging'''<br> | ||
Where packaging is found this may allow a judge to infer an intent to traffic. Packaging in numerous quantities, such as numerous small baggies, can create such an inference. <ref> | Where packaging is found this may allow a judge to infer an intent to traffic. Packaging in numerous quantities, such as numerous small baggies, can create such an inference. <ref> | ||
R v Scott, [http://canlii.ca/t/6pkm 2003 CanLII 27446] (ON S.C.)<br> | R v Scott, [http://canlii.ca/t/6pkm 2003 CanLII 27446] (ON S.C.){{perONSC|Watt J}}<br> | ||
R v Kwok, [http://canlii.ca/t/58gl 2002 BCCA 177] (CanLII) <br> | R v Kwok, [http://canlii.ca/t/58gl 2002 BCCA 177] (CanLII){{perBCCA|Braidwood JA}} <br> | ||
R v Petavel, [http://canlii.ca/t/1q86k 2006 BCSC 1931] (CanLII) | R v Petavel, [http://canlii.ca/t/1q86k 2006 BCSC 1931] (CanLII){{perBCSC| Barrow J}} | ||
</ref> | </ref> | ||
{{reflist|2}} | {{reflist|2}} | ||
==Dial-a-Dope operations== | ==Dial-a-Dope operations== | ||
A Dial-a-Dope operation is | A Dial-a-Dope operation is a manner in which drugs are often distributed to their customers. The seller and buyer will contact each other by phone and arrange to make an exchange at a pre-determined location. | ||
The Crown will often adduce evidence to argue that the evidence suggests that such an operation was undertaken. This is determined by the expert opinion of the evidence suggestive of such an operation. | The Crown will often adduce evidence to argue that the evidence suggests that such an operation was undertaken. This is determined by the expert opinion of the evidence suggestive of such an operation. | ||
Revision as of 19:01, 14 November 2018
- < Criminal Law
- < Proof of Elements
- < Criminal Law
- < Offences
- < Drugs
General Principles
Section 2 of the Controlled Drugs and Substances Act states:
Definitions
2. (1) In this Act,
...
“traffic” means, in respect of a substance included in any of Schedules I to IV,
- (a) to sell, administer, give, transfer, transport, send or deliver the substance,
- (b) to sell an authorization to obtain the substance, or
- (c) to offer to do anything mentioned in paragraph (a) or (b), otherwise than under the authority of the regulations.
– CDSA
The word "transport" is "not meant in the sense of mere conveying or carrying or moving from one place to another, but in the sense of doing so to promote the distribution of the narcotic to another.". [1]
In creating the offence relating to drug trafficking, Parliament did not mean to include buyers of drugs.[2]
- ↑ R v Harrington, [1964] 1 CCC 189 (BCCA), 1963 CanLII 675 (BC CA), per Bird JA at p 195
- ↑ R v Bienvenue, 2016 ONCA 865 (CanLII), per curiam at para 5
Offer to Sell
Trafficking by offer under s. 2(2)(c) only requires that the crown prove an intent to make the offer. It is not necessary to prove that the accused had an intent to follow through with the offer.[1] As such, there is no need to prove that the accused had drugs on themselves at the time or was capable of fulfilling the request.[2]
Trafficking by offer requires a) an offer to traffic in a narcotic and b) an intent to make an offer that will be taken as a genuine offer by the recipient.[3]
The intent will depend on the presence of elements such as discussion of product, pricing and method of transaction.[4]
- ↑
R v Mamchur, 1978 CanLII 1813 (SK CA), [1978] 3 WWR 481 (SKCA), per Culliton CJ at p. 483
R v Jones, 1988 CanLII 4871 (SK CA), (1988) 74 Sask R. 4 (SKCA), per Vancise JA at 10
R v Campbell, 1999 CanLII 676 (SCC), [1999] 1 SCR 565, per Binnie J at 25
R v Murdock, 2003 CanLII 4306 (ON CA), (2003), 176 CCC (3d) 232 (Ont. C.A.), per Doherty JA at 14
R v Crain, 2012 SKCA 8 (CanLII), per Richards JA
R v Ralph, 2011 ONSC 3558 (CanLII), [2011] O.J. No. 3156 (S.C.J.), per Belobaba J, aff’d on other grounds [2014] O.J. No. 13 (C.A.), 2014 ONCA 3 (CanLII)
- ↑
e.g. R v Petrie, [1947] O.W.N. 601 (C.A.)(*no CanLII links)
-- drugs offered weren’t available;
Murdock, supra -- offer was withdrawn
R v Sherman, 1977 CanLII 1908 (BC CA), [1977] 5 W.W.R. 283 (BCCA)Template:PerMcFarlane JA -- offer was made for purpose of ripping buyer off
R v Reid 1996 CanLII 5213, (1996), 155 N.S.R. (2d) 368 (NSCA), per Flinn JA -- no evidence that drugs were even available to seller
R v Brown (1953), 9 W.W.R. (N.S.) 701 (BCCA), 1953 CanLII 475 (BC CA), per O'Halloran JA -- drugs not on the seller
- ↑
Murdock, supra, at p. 238
- ↑
e.g. Ralph, supra at para 38
R v Burke, 2014 ONSC 3199 (CanLII), per Trotter J at para 28
Hand-to-Hand Transactions
An observed hand-to-hand transaction may be evidence of drug trafficking. Such circumstantial evidence will only be probative if innocent explanations can be excluded.[1]
- ↑
R v NO, 2009 ABCA 75 (CanLII), per curiam at para 41, 42
Aiding or Abetting Drug Buyers
Where the accused is not proven to have trafficked in drugs, the only other way that they can be liable for trafficking is if they are guilty as a party under s. 21(1)(b) or (c) for trafficking.[1]
An "agent" for a purchaser or someone who "assists a purchaser to buy narcotics" will come into the definition of aiding or abetting under s. 21.[2] This includes "bringing together the source of supply and the prospective purchaser".[3] It will unlikely to be sufficient if the assistance is "rendered solely to the purchaser".[4]
- ↑
R v Poitras, 1973 CanLII 156 (SCC), per Dickson J
- ↑
R v Greyeyes, 1996 CanLII 5030 (SKCA), per Cory JA at para 32
- ↑ Greyeyes, ibid.
- ↑
Greyeyes, ibid. at para 6
Opinion Evidence on Trafficking
To prove that someone was in possession of a controlled substance for the purpose of trafficking, the Crown must call expert evidence to give an opinion that the circumstances allow for the inference that the possessor intended to traffic.[1]
See also: Expert Evidence for details on the law of expert evidence.
- ↑ E.g. See R v Balla, 2014 ABQB 127 (CanLII), per Yamauchi J at paras 50 to 62
Evidence of Intent
Amount of drugs
Trafficking can be inferred where the quantity/purity/value of drugs.[1]
Where an accused is a user of drugs, there may be evidence suggestive that the drugs found in their possession may be consistent with personal use as opposed to trafficking. The amounts required to maintain the addiction and the habits of typical users are relevant. Either party is permitted to lead evidence concerning typical use, however, this usually takes the form of expert evidence.[2]
The amount of drugs alone cannot be used to establish trafficking.[3]
Marijuana amounts in the range of 3 pounds have been found to be unreasonable to be considered consumable for personal use. [4]
Cocaine amounts of 1kg have been found to be unreasonable to be for personal use.[5]
Money
Large quantities of unexplained wealth can allow a judge to lead to the conclusion of trafficking. This is particularly true where cash is in small denominations and is found near drugs.[6]
Packaging
Where packaging is found this may allow a judge to infer an intent to traffic. Packaging in numerous quantities, such as numerous small baggies, can create such an inference. [7]
- ↑
R v Le, 2001 BCCA 658 (CanLII), per Rowles JA
R v Adelberg, 2001 BCCA 637 (CanLII), per Hall JA
R v L'Huillier, 1997 CanLII 9606 (NB Q.B.), per Riordon J
R v Falahatchian, 1995 CanLII 941 (ON C.A.), per curiam
R v Naugler, 1994 ABCA 110 (CanLII), per McFadyen JA
- ↑ R v Petavel, 2006 BCSC 1931 (CanLII), per Barrow J
- ↑
R v McCallum 2006 SKQB 287 (CanLII), (2006), 281 Sask.R. 272, per Krueger J at 28
R v Mehari, 2009 ABPC 217 (CanLII), per Lamoureux J at para 7 - ↑ R v Brophy (W.) (1971), 3 N.B.R.(2d) 594 (CA)(*no CanLII links)
- ↑ R v Wilcox, 2014 BCCA 65 (CanLII), per Kirkpatrick JA
- ↑
R v Alberts, 1999 CanLII 2246 (ON C.A.), per curiam
R v Le, 2001 BCCA 694 (CanLII), per Esson JA - ↑
R v Scott, 2003 CanLII 27446 (ON S.C.), per Watt J
R v Kwok, 2002 BCCA 177 (CanLII), per Braidwood JA
R v Petavel, 2006 BCSC 1931 (CanLII), per Barrow J
Dial-a-Dope operations
A Dial-a-Dope operation is a manner in which drugs are often distributed to their customers. The seller and buyer will contact each other by phone and arrange to make an exchange at a pre-determined location.
The Crown will often adduce evidence to argue that the evidence suggests that such an operation was undertaken. This is determined by the expert opinion of the evidence suggestive of such an operation.
Several cases have considered the methods of a dial-a-dope operation.[1]
- ↑
R v Franklyn, 2001 BCSC 706 (CanLII), per Henderson J
R v Tran, 2007 BCCA 613 (CanLII), per Saunders JA
R v Tetreault, 2008 BCSC 412 (CanLII), per D Smith J -- Acquitted
Other Conduct
The act of flushing cocaine down the toilet does not amount to trafficking.[1]
- ↑
R v Scharf, 2017 ONCA 794 (CanLII), per curiam
See Also
Related Offences
- Drug Trafficking (Offence) and Drug Trafficking (Sentencing Cases)
- Trafficking in Persons (Offence)
- Weapons Trafficking (Offence)