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Charged with Drug Trafficking in Canada — Now What?

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Drug trafficking arrests frequently make the news in the Greater Toronto Area. Most headline-making arrests involve dozens of suspects, massive amounts of drugs, piles of cash, and tactical squad police raids. Though even a lone alleged trafficker can draw headlines, such as “More than a dozen charges laid in GTA drug trafficking investigation.”

Criminal drug trafficking is prevalent in Toronto, Ontario, and the rest of Canada, as suggested by the latest incident-based crime statistics released by Statistics Canada. These statistics show that almost 14,000 Canadians were charged with drug trafficking offences in 2021. Of the total trafficking charges, just over 6,100 were made by Ontario-based police agencies, with nearly 2,300 in the Greater Toronto Area. Almost 50% of total trafficking charges involved cocaine, with “other controlled drugs and substances” representing about 19% of the offences. This drug category was followed by methamphetamines at about 17%, non-heroin-based opioids at 11%, and heroin at about 3%.

No one wants to become part of statistics like this, but what if you get arrested and charged with a drug trafficking offence? How do the courts address the charges, and what can you do to ensure the best possible outcome?

The criminal defence lawyers of the Greater Toronto Area’s Mass Tsang LLP warn you that a conviction for drug trafficking charges can carry a maximum penalty of life in prison and advise you to secure the services of an experienced criminal defence lawyer ASAP. With over 30 years of experience defending Toronto area clients against drug charges, Mass Tsang lawyers can help you mount an effective defence to fight your trafficking charges.

So, What Exactly is Drug Trafficking Under Canadian Law?

The Canadian Controlled Drugs and Substances Act regulates drug trafficking and specifically lists and categorizes 100s of drugs and substances subject to the legislation. Each illegal substance is classified according to Schedule I through VI, with the lower numbered Schedules generally carrying the most severe penalties. Most “hard” drugs, such as cocaine, methamphetamine, fentanyl, opium, and many other opioids, are classified under Schedule I, many hallucinogens fall under Schedule III, and anabolic steroids and depressants fall under Schedule IV.

Section 2 of the Act specifically defines the act of trafficking, with respect to substances included in Schedules 1 to V, as:

  • “(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).”

This broad interpretation, with the inclusion of terms such as “give,” “transport,” and “deliver,” allows police and prosecutors to easily expand what would be a simple possession charge into trafficking. In essence, sharing drugs with anyone else can be construed as trafficking under the law. Even the act of “offering” to share or move illegal drugs could lead to trafficking charges based solely on evidence supporting the intent.

Potential Penalties for a Trafficking Conviction

Potential penalties for trafficking depend primarily on the Schedule of the drug trafficked, which also influences whether the charges are laid as an indictable or summary conviction offence. Trafficking Schedule I and II drugs is always charged as an indictable offence. In general, when trafficking is charged as an indictable offence, the maximum punishment is life in prison for Schedule I and II drugs, 10 years imprisonment for Schedule III or IV drugs, and three years imprisonment for Schedule IV drugs. As a summary conviction offence, the maximum sentences are 18 months’ imprisonment for Schedule III or V drugs and one year for Schedule IV.

Trafficking in Schedule I or II drugs carry mandatory minimum penalties of one- or two-year imprisonment if the offence is carried out with aggravating factors. The two-year mandatory minimum applies to trafficking committed in prison, near a school, or involving persons under 18 years old. The one-year mandatory minimum applies if:

  • The trafficking was part of an organized criminal undertaking.
  • Violence was used or threatened during the commission of the offence.
  • The trafficker carried, used, or threatened to use a weapon during the commission of the offence.
  • The trafficker had been convicted of one of the Act’s offences within the previous 10 years.

You can also be charged with possession with intent to traffic under Section 7.1 of the Act. The penalties for this offence are harsher than possession charges but lighter than trafficking, and it can be charged as either a summary conviction or indictable offence no matter what Schedule the drug. Summary conviction carries a maximum penalty of one-year imprisonment, while an indictable offence conviction carries 10 years maximum.

How to Address Your Trafficking Charges

Given the harsh penalties that the courts can impose for a trafficking conviction, it is imperative that you seek out competent legal counsel as soon as possible. Whatever you do, don’t speak to police and/or prosecutors until you’ve had a chance to talk with a criminal lawyer.

Given the seriousness of the charges, the Crown often seeks pre-trial custody of those arrested for drug trafficking. This can impede your ability to mount an effective defence, so you should engage the services of a bail hearing lawyer who can help you navigate the judicial interim release (bail) process.

Your criminal defence lawyer will strategize your defence based on the circumstances of the case and the Crown’s evidence. If the Crown’s evidence seems weak or flawed, your lawyer will likely first try to negotiate a reasonable settlement, which could include withdrawn or reduced charges. If the Crown’s case seems strong, but it’s a first-time offence, your lawyer may try to work out a plea deal that exchanges a guilty plea for an absolute or conditional discharge with reduced penalties.

If your lawyer is unable to negotiate a reasonable settlement, they will need to raise a strong defence effort at trial. To gain a conviction, the Crown must prove beyond a reasonable doubt that you intended to traffic the drugs, that the drugs were one of the Scheduled controlled substances, and that you clearly trafficked them. The threshold for a conviction based on trafficking by “offer” is not as high, as the Crown does not need to prove that you possessed the drugs or could provide them.

In mounting a defence, your lawyer will strive to raise “reasonable doubts” about all of the Crown’s evidence. To the extent possible, your lawyer might try to prove that the drugs were for your personal use, that the drugs were not a Scheduled substance, or that you otherwise lacked the intent to traffic them. Your lawyer might also raise the “entrapment defence”, if there is any evidence suggesting that the police played some role in instigating the offence. Your lawyer will also examine police and prosecutor conduct during their investigation and your arrest to determine whether they may have committed any Charter Rights violations. Such violations can lead the judge to exclude relevant evidence, such as drugs seized without a warrant or absent probable cause.

Can Drug Charges Be Dropped?

Drug pardons for marijuana possession first became possible after the legalization of marijuana in Canada through the Cannabis Act. Before this change, millions had criminal records due to pre-legalization drug offences. In April 2019, Bill C-93 was passed, offering a rare opportunity to apply for a record suspension without the usual five-year waiting period typically required.

A successful pardon seals the charge, making it invisible to potential employers and background checks. While the process demands careful document filing and adherence to Canadian laws, a lawyer can assist in ensuring the paperwork is in order. Bill C-93 specifically allows those convicted of cannabis-related offences to bypass the waiting period.

The key factor in determining whether drug charges can be dropped hinges on the distinction between possession and intent to traffic. Typically, the quantity of drugs in your possession plays a significant role in this determination.

Possessing a substantial quantity or evidence of intent to sell often results in a drug possession trafficking charge, which is usually categorized as a criminal offence. Nonetheless, an adept drug possession defence attorney might help reduce the charges, especially if mitigating circumstances exist, such as your lack of awareness concerning the illicit substances in your possession.

When contemplating whether or not drug charges can be dropped, it's vital to consider various factors. Generally, the Crown counsel holds the authority to decide the nature and severity of the charges against you. While many drug possession charges in Canada lead to criminal offences, a skilled attorney may strive to have the charge downgraded to a summary offence, which comes with specific limits on fines and jail time. Importantly, summary offences do not appear on employer criminal background checks, mitigating the long-term impact.

The prospect of having your drug charges dropped depends on multiple factors, including the actions of the arresting police officer and the circumstances surrounding your drug possession charge. Although the final decision rests with the Crown counsel, an experienced defence lawyer can work towards this favourable outcome.

Charges are more likely to be dropped if there were procedural errors during the arrest, doubts regarding the circumstances, or other elements making prosecution challenging. To enhance the likelihood of having drug charges dropped, effective communication with your defence attorney is crucial. Sharing unique details about your arrest, potential biases during police interactions, and relevant case information can prove invaluable.

Your attorney will meticulously examine police procedures to ensure your rights were not violated during the arrest and verify the legality of the drugs in your possession.

In some instances, if getting charges completely dropped proves challenging, an alternative approach involves having the Crown stay your charges - this means prosecution temporarily halts, with the possibility of resolution contingent on meeting court-imposed conditions, such as rehabilitation and avoiding further criminal charges. However, violating these conditions may lead to the resumption of your case in court, typically within a year of the charges being stayed.

Consult with the Criminal Defence Experts at Mass Tsang

The Canadian Criminal Justice System treats drug trafficking as a serious offence that deserves harsh penalties for those convicted. Even a summary conviction can result in jail time, fines, and a criminal record. With severe penalties and disruption to your life, you cannot afford to defend trafficking charges without the expertise of experienced criminal defence trial lawyers, such as those at Mass Tsang. With decades of experience developing effective criminal defence strategies that help secure positive outcomes for our Greater Toronto Area clients, Contact us for a free consultation.

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