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Trafficking / Possession for the Purpose of Trafficking

The Charge

A person can be charged under the Cannabis Act for trafficking or possessing cannabis for the purpose of trafficking unless it is in accordance with the regulations set out in that Act. The penalties for trafficking cannabis illegally remain severe: if the Crown proceeds by indictment, the maximum sentence is up to 14 years in jail; should Crown proceed summarily, the maximum sentence is 6 months in jail.

With respect to other controlled drugs, the Controlled Drugs and Substances Act sets out that different potential penalties depend on the type and amount of drug involved. Controlled drugs and substances are grouped into “schedules” by the CDSA. Drugs are divided into groups according to their chemical composition. Some of the typical drugs are:

Schedule 1: cocaine, morphine, heroin, codeine, fentanyl, oxycodone, GHB, opium, amphetamines, MDMA
Schedule 2: cannabis, resin, and seeds
Schedule 3: LSD, psilocybin, mushrooms
Schedule 4: barbiturates, Clonazepam, Diazepam, and anabolic steroids
Schedule 5: precursors involved in the manufacturing of controlled substances

Penalties for both trafficking and possession for the purpose of trafficking in hard drugs is significant. The maximum sentence is up to lifetime imprisonment for Schedule 1 or 2 substances. The range of sentencing typically starts at 9-12 months in jail for a low level trafficking offence.

Courts have defined trafficking to include “giving” or “delivering” a drug to another person. Profit is not an element of the offence, however the Crown will certainly seek greater penalties where then can show that the offence was motivated by financial gain. The more the facts of the case point to the accused profiting from an organized distribution system, the greater the sentence Crown will seek upon conviction.

The Investigation

Police may be targeting a suspected drug trafficker based on information provided through a tip or, alternatively, police may literally stumble across a suspected drug trafficker during, say, a routine traffic stop or another encounter. In either situation, the law is the same. Police may not search someone for drugs unless they have “reasonable and probable grounds” to believe the person is in possession of a controlled substance. A mere hunch, or suspicion, is not enough.

As experienced drug defence lawyers, we can help clients understand their various rights under the Charter. First, everyone who is detained or arrested by police has the right to be promptly advised as to the reason for their detention and that they have the right to speak to a lawyer. This right is guaranteed by s. 10. The right to remain silent – i.e. the right to not provide a statement to police – is guaranteed by s. 7. In the context of a drug investigation, it is important for a suspect to know and understand that they have the right to remain silent upon arrest. Should charges be approved, the Crown will be obligated to provide full disclosure of the details of the case to the accused. There is clearly an advantage to understand the case against you before providing an explanation. This is the right of everyone in Canada.

Recent Successes

R. vs. G.W. - North Vancouver RCMP Investigation

Charge: Assault with a weapon.
Issue: Whether there was sufficient evidence to support a criminal prosecution.
Result: Mr. Johnson was able collect information from a defence witness and represent to police that our client should not  be prosecuted. Police concluded their investigation without recommending any criminal charge against our client. No criminal record.

R. vs. J.S. - Vancouver Provincial Court

Charge: Assault with a Weapon.
Issue: Given the rehabilitative steps we directed our client to complete, whether it was in the public interest to proceed with the criminal prosecution.
Result: Mr. Gauthier was able to persuade Crown counsel to not approve any charge prior to the scheduled first court appearance. No criminal record.

R. vs. S.L. - Port Coquitlam Provincial Court

Charges: Possession of a loaded prohibited firearm; Unlawful storage of firearms.
Issue: Whether the warrant used to search our client's premises was lawful; whether our client posed a risk to re-offend.
Result: Mr. Mines was able to point to potential flaws in the warrant and police search which culminated in Crown's agreement to not pursue their original sentencing position of a 2-3 year jail sentence. Rather, the court accepted a joint submission of a 12 month conditional sentence with a curfew for the first six months. No jail.

R. vs. M.K.A. - Vancouver Provincial Court

Charges: Assault with a Weapon (x2).
Issue: Whether it was in the public interest for the court to grant our client a conditional discharge.
Result: Mr. Mines was able to direct our client through a course of rehabilitative counselling, and after hearing Mr. Mines' submissions, the trial judge granted our client a conditional discharge. No criminal conviction.

R. vs. K.D. - Vancouver Provincial Court

Charges: Assault (domestic).
Issue: Given the rehabilitative steps that we were able to guide our client through, whether there was a public interest in continuing with the prosecution.
Result: Mr. Mines was able to persuade Crown counsel to amend the bail condition to allow "permissive contact" with the complainant, and after providing Crown with a report from our client's psychologist Crown counsel ended the prosecution. Stay of proceedings. No criminal record.

R. vs. J.L. - Vancouver Provincial Court

Charges: Sexual assault; Unlawful Confinement; Assault by Choking.
Issue: Given the impact of the additional evidence that Mr. Johnson provided to Crown counsel, whether there was a substantial likelihood of a conviction.
Result: Crown counsel agreed that the new evidence significantly undermined the strength of the case.  Crown counsel entered a stay of proceedings, bringing the prosecution to an end. No jail. No criminal record.

R. vs. S.D. - Vancouver Provincial Court

Charge: Assault.
Issue: Whether it was appropriate for our client to receive a suspended sentence despite having two prior assault convictions.
Result: After hearing Mr. Mines' submissions, the trial judge granted our client a suspended sentence with 12 months of " non reporting" probation.  No jail.

R. vs. T.L. - Vancouver Provincial Court

Charges: Indecent Act; Mischief (reduced to Peace Bond).
Issue: Whether the Crown could prove that our client intended to commit a criminal offence.
Result: Mr. Mines was able to persuade Crown counsel to enter a stay of proceedings on the the criminal charges upon our client entering into a Peace Bond. No criminal record.

R. vs. B.I. - Vancouver Provincial Court

Charges: Assault.
Issue: Given the Covid-19 pandemic, whether it was appropriate to refer our client into the Alternative Measures Program for this assault by spitting offence.
Result: Mr. Mines was able to provide Crown counsel with compelling information about our client which resulted in Crown allowing our client into Alternative Measures and staying the charge upon our client completing the program. No criminal record.

R. vs. T.F. - Surrey Provincial Court

Charges: Assault with a Weapon; Uttering Threats x2; Unlawful Confinement.
Issues: Whether Crown could prove that a weapon was used or that the complainant was unlawfully confined.
Result: Mr. Mines was able to persuade Crown counsel to accept pleas to the lesser charges of common assault and uttering a threat. After hearing Mr. Mines' submissions on our client's behalf, the trail judge granted our client a conditional discharge. No jail; no permanent criminal record.

R. vs. D.D. - Vancouver Provincial Court

Charge: Driving while prohibited.
Issue: Whether it was in the public interest to proceed with the prohibited driving charge.
Result: Mr. Johnson was able to persuade Crown counsel to proceed on the lesser charge of driving without possessing a valid driver's licence. Rather than the 12 month minimum mandatory driving prohibition, our client received a 4 month prohibition.

R. vs. J.L. - Surrey Provincial Court

Charge: Assault (domestic).
Issue: Given the rehabilitative steps we were able to guide our client through, whether it was in the public interest to continue with the criminal prosecution.
Result: Mr. Johnson was able to persuade Crown counsel to enter a stay of proceedings on the assault charge upon you entering into a s. 810 peace bond. No criminal record.

The Defence

Unreasonable Search

Section 8 of the Charter guarantees the right to be free from an unreasonable search and seizure. The role of defence counsel in a drug case often involves analyzing the actions of investigating police officers to test whether they have, in fact, conducted a lawful search as authorized by the Charter. Drug searches can take place in a variety of contexts and places. In some situations, police must obtain pre-authorization from a judge or justice in order to search a place or thing. The requirement to obtain a search warrant will depend on the privacy interest the accused has in the thing searched. For example, a person has a very high privacy interest in their home or in their personal computer. They tend to have a lower privacy interest in things such as their friend’s car or their employer’s desk. Where police overreach their authority and search someone on a mere hunch, or based on assumptions rather than fact, we will apply to the court under s. 24(2) of the Charter to have the evidence excluded from the trial. The general idea is that when police obtain evidence from an unlawful search that violates our client’s rights, the court ought to see the evidence as “tainted” and tending to bring the administration of justice into disrepute. Without the admission of the drug evidence into the trial, the court will find insufficient evidence to convict.

The Drugs were not for the Purpose of Trafficking

In order to prove possession for the purpose of trafficking, the Crown will usually bring a police expert witness to court. They will testify that the circumstances of the drug seizure tend to prove that the drugs were intended to be sold or distributed. Typical evidence relates to the way the drugs are packaged – many small packs suggest trafficking. The presence of scales, “score sheets,” cash and cell phones also tend to suggest trafficking. Our experience in defending drug charges allows us to develop arguments aimed at challenging expert Crown witnesses on their opinions that the circumstances of the drug seizure necessarily suggest trafficking rather than simple possession. In many cases we have been able to negotiate possession for the purpose of trafficking charges down to simple possession charges to avoid jail sentences for our clients.

Lack of Possession

In many situations, accused persons are arrested without drugs directly in their possession. For example, they may be driving someone else’s car and drugs are found in an unmarked box in the trunk. A roommate may be charged with possession for the purpose of trafficking, but none of the drugs are found in their personal space of the residence. In these situations, the Crown will seek to prove possession through indirect, or circumstantial evidence. As experienced defence lawyers, we understand the Crown’s burden in proving that an accused had the requisite knowledge and control of the substance in order to be convicted. We are dedicated to holding the Crown to the high standard that the law requires when prosecuting drug offences. We are committed to defending our client’s rights as guaranteed by the Charter.

Start with a free consultation.

If you are being investigated by police or if you’ve been charged with a criminal or driving offence, don’t face the problem alone. Being accused of an offence is stressful. The prospects of a criminal record or jail sentence can be daunting. Even if you think there is no defence, we may be able to help. To schedule a free initial consultation with one of our Vancouver lawyers, contact us now.