Criminal Law Notebook

Drug Trafficking

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General Principles

See also: Drug Trafficking (Offence)

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

Note up: 2(1)

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]

  1. ↑ R v Harrington, 1963 CanLII 675 (BC CA), , [1964] 1 CCC 189 (BCCA),, per Bird JA, at p. 195
  2. ↑ 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]

  1. ↑ 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 (CanLII), per Binnie J at 25
    R v Murdock, 2003 CanLII 4306 (ON CA), , 176 CCC (3d) 232, 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)
  2. ↑ 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    Murdock, supra -- offer was withdrawn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 CanLII 475 (BC CA), (1953), 9 W.W.R. (N.S.) 701 (BCCA), per O'Halloran JA -- drugs not on the seller
  3. ↑ Murdock, supra, at p. 238
  4. ↑ 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]

  1. ↑ R v NO, 2009 ABCA 75 (CanLII), per curiam, at paras 41, 42
  2. ↑ 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]

  1. ↑ R v Poitras, 1973 CanLII 156 (SCC), per Dickson J
  2. ↑ R v Greyeyes, 1996 CanLII 5030 (SKCA), per Cory JA, at para 32
  3. ↑ Greyeyes, ibid.
  4. ↑ 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.

  1. ↑ 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]

  1. ↑ 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
  2. ↑ R v Petavel, 2006 BCSC 1931 (CanLII), per Barrow J
  3. ↑ 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
  4. ↑ R v Brophy (W.) (1971), 3 N.B.R.(2d) 594 (CA)(*no CanLII links)
  5. ↑ R v Wilcox, 2014 BCCA 65 (CanLII), per Kirkpatrick JA
  6. ↑ R v Alberts, 1999 CanLII 2246 (ON C.A.), ,, per curiam
    R v Le, 2001 BCCA 694 (CanLII), per Esson JA
  7. ↑ 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]

  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]

  1. ↑ R v Scharf, 2017 ONCA 794 (CanLII), per curiam

See Also

Related Offences

External Links

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