Drug Trafficking: Difference between revisions
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In creating the offence relating to drug trafficking, Parliament did not mean to include buyers of drugs.<ref> | In creating the offence relating to drug trafficking, Parliament did not mean to include buyers of drugs.<ref> | ||
{{CanLIIR|Bienvenue|gvnlq|2016 ONCA 865 (CanLII)}}{{TheCourtONCA}} {{atL|gvnlq|5}} | |||
</ref> | </ref> | ||
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''R v Campbell'', [http://canlii.ca/t/1fqp4 1999 CanLII 676] (SCC), [1999] 1 SCR 565{{perSCC|Binnie J}} 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.){{perONCA|Doherty JA}} 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> | ||
{{CanLIIR|Crain|fpw5n|2012 SKCA 8 (CanLII)}}{{perSKCA|Richards JA}}<br> | |||
''R v Ralph'', [http://canlii.ca/t/fm6v8 2011 ONSC 3558] (CanLII), [2011] OJ No 3156 (S.C.J.){{perONSC|Belobaba J}}, aff’d on other grounds [2014] OJ No 13 (C.A.), [http://canlii.ca/t/g2grp 2014 ONCA 3] (CanLII){{perONCA|Rosenberg JA}} (3:0)<br> | ''R v Ralph'', [http://canlii.ca/t/fm6v8 2011 ONSC 3558] (CanLII), [2011] OJ No 3156 (S.C.J.){{perONSC|Belobaba J}}, aff’d on other grounds [2014] OJ No 13 (C.A.), [http://canlii.ca/t/g2grp 2014 ONCA 3] (CanLII){{perONCA|Rosenberg JA}} (3:0)<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. {{supra1|Ralph}}{{atL|fm6v8|38}}<br> | e.g. {{supra1|Ralph}}{{atL|fm6v8|38}}<br> | ||
{{CanLIIR|Burke|g71j5|2014 ONSC 3199 (CanLII)}}{{perONSC|Trotter J}}{{atL|g71j5|28}}<br> | |||
</ref> | </ref> | ||
| Line 59: | Line 59: | ||
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> | ||
{{CanLIIR|NO|22ms4|2009 ABCA 75 (CanLII)}}{{TheCourtABCA}}{{atsL|22ms4|41|, 42}}<br> | |||
</ref> | </ref> | ||
| Line 87: | Line 87: | ||
==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 give an opinion that the circumstances allow for the inference that the possessor intended to traffic.<ref> | 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 | E.g. See {{CanLIIR|Balla|g6tvk|2014 ABQB 127 (CanLII)}}{{perABQB|Yamauchi J}}{{atsL|g6tvk|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. | ||
| Line 97: | Line 97: | ||
; Amount of drugs | ; Amount of drugs | ||
Trafficking can be inferred where the quantity/purity/value of drugs.<ref> | Trafficking can be inferred where the quantity/purity/value of drugs.<ref> | ||
{{CanLIIR|Le|4z5z|2001 BCCA 658 (CanLII)}}{{perBCCA|Rowles JA}}<br> | |||
{{CanLIIR|Adelberg|4z5d|2001 BCCA 637 (CanLII)}}{{perBCCA|Hall JA}}<br> | |||
''R v L'Huillier'', [http://canlii.ca/t/1m2mt 1997 CanLII 9606] (NB Q.B.){{perNBQB|Riordon J}}<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.){{TheCourt}}<br> | ''R v Falahatchian'', [http://canlii.ca/t/6jkf 1995 CanLII 941] (ON C.A.){{TheCourt}}<br> | ||
| Line 105: | Line 105: | ||
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> | 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> | ||
{{CanLIIR|Petavel|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{{perSKQB|Krueger J}} 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> | ||
{{CanLIIR|Mehari|25039|2009 ABPC 217 (CanLII)}}{{perABPC|Lamoureux J}}{{atL|25039|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. | ||
| Line 116: | Line 116: | ||
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> | ||
{{CanLIIR|Wilcox|g34rf|2014 BCCA 65 (CanLII)}}{{perBCCA|Kirkpatrick JA}} | |||
</ref> | </ref> | ||
| Line 122: | Line 122: | ||
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.){{TheCourt}}<br> | ''R v Alberts'', [http://canlii.ca/t/1f9d9 1999 CanLII 2246] (ON C.A.){{TheCourt}}<br> | ||
{{CanLIIR|Le|4z4b|2001 BCCA 694 (CanLII)}}{{perBCCA|Esson JA}} | |||
</ref> | </ref> | ||
| Line 128: | Line 128: | ||
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.){{perONSC|Watt J}}<br> | ''R v Scott'', [http://canlii.ca/t/6pkm 2003 CanLII 27446] (ON S.C.){{perONSC|Watt J}}<br> | ||
{{CanLIIR|Kwok|58gl|2002 BCCA 177 (CanLII)}}{{perBCCA|Braidwood JA}} <br> | |||
{{CanLIIR|Petavel|1q86k|2006 BCSC 1931 (CanLII)}}{{perBCSC| Barrow J}} | |||
</ref> | </ref> | ||
{{reflist|2}} | {{reflist|2}} | ||
| Line 139: | Line 139: | ||
Several cases have considered the methods of a dial-a-dope operation.<ref> | Several cases have considered the methods of a dial-a-dope operation.<ref> | ||
{{CanLIIR|Franklyn|4xd9|2001 BCSC 706 (CanLII)}}{{perBCSC|Henderson J}}<br> | |||
{{CanLIIR|Tran|1vjxx|2007 BCCA 613 (CanLII)}}{{perBCCA|Saunders JA}}<br> | |||
{{CanLIIR|Tetreault|1wkzl|2008 BCSC 412 (CanLII)}}{{perBCSC|D Smith J}} -- Acquitted<br> | |||
</ref> | </ref> | ||
{{reflist|2}} | {{reflist|2}} | ||
| Line 147: | Line 147: | ||
==Other Conduct== | ==Other Conduct== | ||
The act of flushing cocaine down the toilet does not amount to trafficking.<ref> | The act of flushing cocaine down the toilet does not amount to trafficking.<ref> | ||
{{CanLIIR|Scharf|h6mkl|2017 ONCA 794 (CanLII)}}{{TheCourtONCA}}<br> | |||
</ref> | </ref> | ||
Revision as of 18:20, 27 January 2021
- < 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.
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] OJ No 3156 (S.C.J.), per Belobaba J, aff’d on other grounds [2014] OJ No 13 (C.A.), 2014 ONCA 3 (CanLII), per Rosenberg JA (3:0)
- ↑
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), per McFarlane 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]
- Transfer for Safekeeping
The transfer of drugs from one person to another for safekeeping will constitute trafficking.[2]
- ↑
R v NO, 2009 ABCA 75 (CanLII), per curiam, at paras 41, 42
- ↑ R v Lauze (1980), 60 CCC (2d) 469 (QCCA)
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)