What is possession for the purposes of trafficking?

Drug trafficking is when an individual is in possession of drugs for the purpose of selling, giving, transporting, sending, or delivering them, or offering to do any of the above. It is important to note that trafficking a substance that is not a drug, but that is held out to be a drug, is also an offence that is punishable in the same way as drug trafficking.

In order for an accused to be found guilty of possession for the purposes of trafficking, the Crown Prosecutor must prove beyond a reasonable doubt the following:

1. The accused was in possession of a controlled substance under the CDSA;
2. The accused knew that they were in possession of a controlled substance;
3. The accused knew that the substance was a drug listed under the CDSA, or held it out to be a substance listed under the CDSA; and,
4. The accused had possession of that drug for the purpose of trafficking the drug.

The Crown Prosecutor can prove that you are guilty of possession for the purposes of trafficking even if the drugs are not in your immediate physical possession. For the Crown to prove possession it is sufficient that they establish that you had knowledge of the drugs and some measure of control over the drug. For example, if you placed the drugs in the custody of another person, but were able to direct that person to bring you the drugs or distribute the drugs, you could still be still found in possession for the purposes of trafficking.

The Crown Prosecutor can prove the knowledge component of possession for the purpose of trafficking by showing that you either had actual knowledge of the offence or that you were willfully blind to the presence and nature of the drugs. So, for example, if you had very strong reason to believe that your friend placed a sizeable amount of cocaine in your attic for the purposes of later distributing those drugs, but you failed to check your attic so you wouldn’t ‘know’ the drugs were in your house, you could still be deemed to be willfully blind for the purposes of this offence.

Proving Intent to Traffick

The Crown Prosecutor can prove that you had intent to traffic in a number of ways. They can rely on the evidence of informants, or telephone calls and text messages that indicate that you were trafficking or trying to traffic drugs. They can also rely on circumstantial evidence such as the value or quantity of the drugs they found, or the presence of paraphernalia like scales, and baggies.

The Penalty For Possession with Intent to Traffick in Canada

If you are convicted of a drug trafficking offence, the penalty may vary depending on the type of drug that was found in your possession.

For trafficking or possessing a substance listed in Schedule I or Schedule II, if convicted you will be guilty of an indictable offence and can be liable to imprisonment for life. If you traffick Schedule III drugs, you may be found guilty of an indictable offence and liable for a term of imprisonment not exceeding 10 years. Alternatively, if the Crown Prosecutor proceeds by summary conviction, if you are found guilty of trafficking or possession for the purposes of trafficking, you can be liable for a prison term of up to 18 months. If you are found guilty of trafficking Schedule IV substances, you will be guilty of an indictable offence and is liable for a prison term of up to 3 years.

When sentencing an accused who was found guilty of a trafficking offence, there are a number of aggravating factors that will be taken into consideration when determining the appropriate penalty for the offender. Some of the factors that the court will consider to be aggravating include things like whether you used a weapon or threatened to use violence when committing the offence, or if you trafficked or possessed a drug for the purposes of trafficking by a school, a public place usually frequented by persons under the age of 18, or around persons under the age of 18 years. It will also be considered aggravating if you have previously been convicted of an offence under the CDSA, and if you used a person under the age of 18 years to commit an offence under the CDSA.