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 12 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.
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) 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).

Before the Crown can rely on provisions increasing the duration of the weapons prohibition order due to a prior weapons prohibition order notice under s. 727 must be given prior to plea.

Release

When charged under s. 5 [Schedule III or IV], the accused can be given an appearance notice without arrest under s. 497 or a summons. If arrested, he can be released by the arresting officer under s. 498 or 499 on an undertaking with or without conditions. 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".

Reverse Onus Bail

If police decide to bring the accused before a Justice pursuant to s. 503, there will be a presumption against bail (i.e. a 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 weapon, being 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)).

And, regardless of Crown election, if the offence alleged was one:

• where the offence was an allegation of violence against an "intimate partner" and the accused had been previously convicted of an offence of violence against an "intimate partner" (s. 515(6)(b.1));
• where the offence alleged is a breach under s. 145(2) to (5) while (s. 515(6)(c));
• where the offence committed (or conspired to commit) was an offence under s. 5 to 7 of the CDSA that is punishable by life imprisonment (s. 515(6)(d));

Publication Bans

For all criminal or regulatory prosecutions, 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 victims under s. 111 of the YCJA.

Offence Designations

Offence(s)	Wiretap Eligible s. 183	Dangerous Offender Designated Offence s. 752	Serious Personal Injury Offence s. 752	AG Consent Required	Serious Criminality Offence s. 36 IRPA
s. 5 CDSA

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, IV or V 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, IV or V.
...
1996, c. 19, s. 5; 2012, c. 1, s. 39; 2017, c. 7, s. 3; 2018, c. 16, s. 196.

– CDSA

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Draft Form of Charges

		Pre-ambles
		"THAT [accused full name] stands charged that, between the <DATE> day of <MONTH>, <YEAR> and <DATE> day of <MONTH>, <YEAR>***, at or near <COMMUNITY/TOWN/CITY>, <PROVINCE>, he [or she]..." OR
		"THAT [accused full name] stands charged that, on or about the <DATE> day of <MONTH>, <YEAR>, at or near <COMMUNITY/TOWN/CITY>, <PROVINCE>, he [or she]..." OR
		"AND FURTHER at the same time and place aforesaid, he [or she]..."
Code Section	Subject of Offence	Draft Wording
		"..., contrary to section XXX of the Controlled Drugs and Substances Act.

Proof of the Offence

Proving Possession for the Purpose of Trafficking under s. 5 CDSA should include: ☐ identity of accused as culprit ☐ date and time of the incident ☐ jurisdiction (incl. region and province) Possession of Substance (Knowledge, consent, control) ☐ must have knowledge of the illegal nature of the substance ☐ Substance is a Control Substance under the CDSA (certificate of analysis, chain of possession, amounts found) ☐ the culprit knew of (or held a belief as to) the nature of the substance ☐ Possession of Substance was not authorized ☐ The culprit intended to traffic the Substance

Proving Trafficking should include: ☐ identity of accused as culprit ☐ date and time of the incident ☐ jurisdiction (incl. region and province) ☐ the culprit was trafficking in a substance ☐ the substance was Schedule I to V Controlled Substance

Interpretation of the Offence

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

Typical Defences

• Entrapment

Sentencing

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

• Drug Trafficking, Schedule I (Sentencing): Maximum penalty of life
• Drug Trafficking, Schedule II (Sentencing): Maximum penalty of life
• Drug Trafficking, Schedule III (Sentencing): Maximum penalty of 10 years
• Drug Trafficking, Schedule IV (Sentencing): Maximum penalty of 3 years

History

• History of Drug Offences

See Also

• Importing and Exporting Drugs (Offence)

References

• Pre-Trial and Trial Motions Checklist