In Canada, trafficking in a scheduled substance is a very serious criminal offence carrying severe penalties including mandatory minimum jail sentences in some cases. Defences usually involve claims that police violated the accused constitutional rights.
For the trafficking offence to be made out, it is required that the accused have sold or offered to sell the particular substance in question. Contrary to popular belief, it does not matter whether the substance was real or not. Merely holding out fake drugs for sale is sufficient.
Making understanding of this offence even more difficult is the fact that Canadian law makes it an offence to agree to make available the substance. Therefore, a verbal contract to deliver drugs would be sufficient. As a result, the exchange of money is not a prerequisite for a finding of guilt to trafficking.
There are a variety of Schedules to the CDSA. Schedule I contains the most harmful drugs (cocaine and heroin-based substances). Schedule II is primarily marijuana but also includes hashish and derivatives. Schedules III-IV contain other controlled substances including magic mushrooms, ecstasy, and steroids. By far the most common, Schedules I and II are the types seen most often in Canadian courts.
This offence is normally investigated with undercover police officers posing as legitimate drug users and dealers. The police officer is often part of an elaborate sweep of traffickers, with a whole team of officers secretly taking photographs and making notes about the transaction. It is common to delay the arrest of the trafficker (even for several months) to preserve the anonymity of the undercover agent.
In law, there is a tremendous difference in penalty depending on the Schedule in which the substance is registered. For instance, trafficking in cocaine is punished much more severely than trafficking in marijuana. Even within a Schedule, penalties differ. Trafficking in crack cocaine will attract higher sentences than trafficking in powdered cocaine.
The reason for the different penalties is due to the particular scheduled substance’s harm to society and also the typically more lucrative compensation associated with its distribution.
Obviously, the quantities in issue will determine a great extent any sentence imposed. A couple of grams of cocaine might yield a 90-180 day jail sentence, whereas trafficking a couple of ounces might be worth a year or more. A pound or more will almost invariably lead to a lengthy jail sentence expressed in years, not months or days.
In 2012, a series of amendments to the CDSA resulted in many mandatory minimum sentences associated with certain types of trafficking (usually where the accused has a prior similar offence or the trafficking transpired in an area where children often frequent such as schools, parks, even movie theatres).
The most common type of defence in drug-related prosecutions is for an accused to argue that their Charter rights have been violated. The Canadian Charter of Rights and Freedoms is part of our Constitution and police officers must respect an individual’s rights while they are investigating crime. Unfortunately, the law in Canada has shifted in recent years to a certain level of tolerance of violations of a person’s rights in favour of a pragmatic approach.
A violation of a person’s Charter rights enables that person to argue that the violation of their rights is more egregious than the drug offence for which they are charged and ask the judge to correct the injustice by excluding the evidence (typically leading to an acquittal of the accused).
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Other types of defence for possession cases involves the accused introducing a doubt about whether they had knowledge and or control over the drugs found.