Identify the Distinction Between Narcotics Possession and Trafficking from Your Drug Lawyer in Edmonton
Narcotics possession and trafficking in Canada are prohibited criminal activities dealt with under the Controlled Drugs and Substances Act (CDSA) since 1996, though some provisions remain in force in theCriminal Code of Canada (e.g., s.462.1 and s.462.2). Charges for drug possession and trafficking are prosecuted by the Public Prosecutions Services of Canada, not the local provincial Crown Prosecutor’s office, which means that drug prosecutors typically have more specialized experience in drug cases. Drug-related charges in Canada are highly punitive even though Canada’s obligations as signatory to international drug conventions do not require the level of penalties imposed and the laws conflict with civil liberty protections in Canada and human rights protections internationally. Drug crimes have increased as a general trend since the 1990s and Statistics Canada has found that about half (52% in 2010) were for possession of cannabis.
Possession of Controlled Substances
Possession charges can result in circumstances where you have the drug on your person or have stored it elsewhere or have knowingly asked another person to hold and safeguard the drug for you. You are still responsible if someone else holds it for you or you disallow another person the permission to hold it for you. Knowledge and control or consent are key, as seen in the three possession types outlined in s.4 of the Criminal Code of Canada and summarized below:
- Personal/actual possession, which requires that the accused have knowledge that the substance is a drug and physical custody of it; or
- Constructive possession, which requires that the accused have knowledge of the drug, control over its location, and intent/consent to possess the item; or
- Joint possession (involving multiple individuals), which requires knowledge of the drug, some control over its location, and consent to possess the item.
One example where you could be deemed to have knowledge, control and intention to possess is a situation where marijuana packets are found by an officer inside the glove compartment of your car or if the drugs were found in your suitcase, purse or bedroom. By contrast, a passenger traveling with you in the car may not be found guilty of possession as there may be a doubt about whether or not he/she had knowledge of or control over the vehicle or the controlled substance. If, unknowing to you, the passenger had removed the marijuana from your glove compartment, innocent (or non-criminal) possession could be said to occur if it was done with the intention of destroying or removing it from your control.
Trafficking of Controlled Substances
Trafficking relates to the intention or purpose of physically making the drug available to others, regardless of ownership. Possession typically occurs at the same time as trafficking but possession is not a prerequisite for a trafficking charge to be laid. Trafficking an illegal drug under the CDSA (simplified here) requires that you have the intention to:
- Administer or
- Offer to do any of these with the intention to sell.
You do not have to receive money in order to be charged with trafficking. An example of a trafficking charge is a situation where an uncover officer witnesses you at a party being approached by someone who hands you LSD that you take and offer to your friend standing next to you. It makes no difference that you never asked for the drug, that you were told by the person who approached you that the host is giving them to everyone, that you weren’t sure what those small square shaped tablets were or that you only took a second tablet to give one to your friend. Knowledge of the nature of the substance is not required nor the intention to sell or deliver it.
The Courts have characterized different levels of trafficking: social trafficking (sharing with friends and not typically associated with making a profit), street level trafficking (often smaller amounts of narcotics) which may include “dial a doper” operations and wholesale commercial trafficking. The level of serious affects the penalty associated with it. Wholesale commercial trafficking relates to more sophisticated, higher level trafficking, often associated with large narcotic seizures or sales, and the offender’s level in the drug trafficking organization.
Investigative Techniques of Police Officers
The police use their powers in the Criminal Code, the CDSA and the common law to detain, search and seize property or narcotics in residences, vehicles, buildings, storage facilities. The standard of proof most often is one of reasonable and probable grounds. However, there are some warrant provisions that only require a reasonable suspicion only to execute certain type of warrants. As a last resort, police officers can apply for a wiretap, but this application must be made in a superior court and the police must establish reasonable and probable grounds and also that all other reasonable investigative techniques have not been successful or cannot be used. The police also utilize informants, undercover agents, police dogs. The police also use tracking devices in vehicles, dial number recorders, production orders for bank and other records, review person subscriber information, conduct covert surveillance, use infared technology in marijuana cultivation cases, aerial surveillance to name some techniques.
Penalties for drug possession or trafficking are subject to the provisions of the controlled Drugs and Substances ActCriminal Code of Canada and the classification and penalties schedules. The drugs are classified in accordance with five schedules. Some offences may be summary conviction only, hybrid (where the Crown can proceed by summary conviction or by indictment) or strictly indictable. For possession of a narcotic, an offender may be diverted. If a person is diverted, they are placed on probation and may be directed to perform community service or take couselling. Once they have completed the program, their charges are withdrawn and they will have no criminal record. They are not found guilty or convicted of any offence.
If an accused person is found guilty or pleads guilty, they may receive an absolute discharge, and receive no probation or be placed on probation (conditional discharge). Both charges include a finding of guilt but the Court does not impose a criminal record.
The Court may also place a person on probation only but impose a criminal record (suspended sentence) or impose a fine or incarceration.
Trafficking and Possession of a Narcotic for the Purpose of Trafficking often include mandatory prison sentences although some minor trafficking or possession for the purpose of trafficking may include a non-custodial sentence. More serious offences often include mandatory prison sentences and depending on the type of drug could have a 6 month, 12 month or a 24-month minimum sentence. Some offences carry a maximum sentence of up to life imprisonment.
When the Court imposes sentence, there are sentencing options subject to mandatory minimum sentence provisions including the following: an absolute discharge, In other words, sympathy may be given to decriminalize situations where an offence was committed to support an addiction. a conditional discharge, a suspended sentence (probation), a fine, or imprisonment.
A court has the discretion not impose a prison sentence to individuals who successfully complete drug treatment court, plead guilty, and agree to be subject to extensive monitoring and residential treatment. Section 10 of the CDSA reads as follows:“Sentencing Purpose of sentencing
- 10. (1) Without restricting the generality of the Criminal Code, the fundamental purpose of any sentence for an offence under this Part is to contribute to the respect for the law and the maintenance of a just, peaceful and safe society while encouraging rehabilitation, and treatment in appropriate circumstances, of offenders and acknowledging the harm done to victims and to the community. Factors to take into consideration
- (2) If a person is convicted of a designated substance offence for which the court is not required to impose a minimum punishment, the court imposing sentence on the person shall consider any relevant aggravating factors including that the person
- (a) in relation to the commission of the offence,
- (i) carried, used or threatened to use a weapon,
- (ii) used or threatened to use violence,
- (iii) trafficked in a substance included in Schedule I, II, III or IV or possessed such a substance for the purpose of trafficking, in or near a school, on or near school grounds or in or near any other public place usually frequented by persons under the age of eighteen years, or
- (iv) trafficked in a substance included in Schedule I, II, III or IV, or possessed such a substance for the purpose of trafficking, to a person under the age of eighteen years;
- (b) was previously convicted of a designated substance offence; or
- (c) used the services of a person under the age of eighteen years to commit, or involved such a person in the commission of, a designated substance offence.
- (3) If, under subsection (1), the court is satisfied of the existence of one or more of the aggravating factors enumerated in paragraphs (2)(a) to (c), but decides not to sentence the person to imprisonment, the court shall give reasons for that decision.
- (4) A court sentencing a person who is convicted of an offence under this Part may delay sentencing to enable the offender
- (a) to participate in a drug treatment court program approved by the Attorney General; or
- (b) to attend a treatment program under subsection 720(2) of the Criminal Code.
- (5) If the offender successfully completes a program under subsection (4), the court is not required to impose the minimum punishment for the offence for which the person was convicted.”
However, mandatory drug sentences have greatly reduced the sentencing options for defence lawyers, prosecutors, and the Courts even in cases where a person being sentenced may have significant mitigating circumstances that do not cry out for a term of imprisonment.
Post Conviction Consequences
If you are convicted or possession of a narcotic, possession of a narcotic for the purpose of trafficking or trafficking in narcotics, you will likely receive a criminal record unless you have received Alternative Measures or received a discharge. Otherwise, you will receive a criminal record for narcotics offences. You have no legal right to review police data or demand that the files be destroyed. The court records become public documents and their contents can be reported in the media. Getting a record suspension (previously known as a pardon) is more difficult to obtain and, if granted, it requires a five year waiting period after completion of a summary conviction sentence or ten years for an indictable offence.
The existence of a criminal record can also result in you being denied of employment with government, corporations and certain professions regulated under provincial statutes. You could be denied entry into another country (such as the USA). Your application for citizenship could be denied, and you could be deported under immigration rules and statutes if you are not a Canadian citizen. Unless your charges have been withdrawn through Alternative Measures, or you receive an absolute discharge, it is highly unlikely you would be granted entry into the United States. The only way to gain entry to the United States is to apply for a US Travel Waiver through the US authorities. They are very difficult to obtain and are not granted routinely.
Choose Rod Gregory as the Criminal Lawyer to Defend Your Narcotics Case in Edmonton and Western Canada
Drug prosecutions are serious. The state has significant resources to investigate and prosecute drug cases. You need a qualified and experienced drug lawyer who can represent, protect and defend you if you are accused of possession or trafficking in narcotics. Rod Gregory is an experienced and knowledgeable criminal lawyer based in Edmonton who will vigorously defend your drug case. He has represented many clients in the Edmonton area and the rest of Western Canada. Contact Rod to represent your case.