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What Amount of Drugs Can Get You Arrested for Trafficking in Canada?

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In collaboration with several municipal police departments, Ontario Provincial Police recently took down three criminal organizations that were trafficking a massive amount of illegal drugs in the Greater Toronto Area and beyond. The investigation resulted in the seizure of 12 kilograms of fentanyl—equivalent to 120,000 doses—25 kilograms of cocaine, five kilograms of crystal meth, 260,000 methamphetamine tablets, and 29 handguns. Along with multiple drug trafficking and related charges, the arrested suspects also face gun-related charges.

Given the amount of drugs and other charges, the suspects likely face decades in prison if convicted. But this begs the question of what drug amounts trigger the threshold for trafficking charges. It’s fairly obvious that anyone—or any group—handling thousands of fentanyl doses or dozens of pounds of cocaine is probably trafficking in them. However, does Canadian law lay out specific drug threshold amounts that trigger trafficking charges?

You might be surprised to learn that the answer is “no.” However, the criminal defence drug lawyers of the Greater Toronto Area’s Mass Tsang LLP will advise you that the amount of drugs involved in a trafficking case usually plays a significant role in the sentencing of those convicted. The other crucial factor in sentencing is the type of drug trafficked. Given that the maximum sentence for the offence is life in prison, Mass Tsang’s lawyers would suggest that you secure the services of a skilled criminal defence drug lawyer if you are arrested for drug trafficking .

Drug Trafficking Defined Under Canadian Law

To untangle Canada’s complicated drug laws, we must turn to the Controlled Drugs and Substances Act (CDSA) rather than Canada’s Criminal Code. The Act covers hundreds of substances, chemical compositions, and precursor substances used to manufacture illegal drugs. Each illegal substance is categorized according to its apparent potential harm to the public. Schedule I substances cover the most dangerous drugs, including heroin, fentanyl, cocaine, opium, morphine, and a wide range of opioid derivatives. Schedule II substances include synthetic cannabinoid receptor type 1 agonists, derivatives, isomers, and/or their salts. Schedule III substances cover drugs in the amphetamine family, including methamphetamine, and many hallucinogens, like LSD and psilocybin. Schedule IV substances include barbiturate class drugs, other pharmaceuticals that are abused recreationally, and anabolic steroids.

The CDSA defines trafficking in context with the scheduled substances 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).”

As written, courts can interpret trafficking as any form of sharing a controlled substance with anyone else. The quantity of the controlled substance is not mentioned, which means police can lay trafficking charges on any amount if engaged in the listed activities in parts (a) and (b). And, as indicated by part (c) of the definition, just “offering” to share or move illegal drugs could lead to a trafficking arrest based on evidence supporting intent.

Drug Trafficking Penalties According to Substance Schedule

The 23 alleged Ontario drug traffickers referenced at the beginning of this article face the maximum life imprisonment sentence if convicted because fentanyl and cocaine are Schedule 1 drugs. Under the CDSA, Schedule I and II drugs can only be prosecuted as an indictable offence, and both carry the maximum life imprisonment sentence.

Trafficking in Schedule III and IV substances can be charged as either an indictable or summary conviction offence. When charged as an indictable offence, the maximum penalty is 10 years imprisonment for trafficking in Schedule III substances and a maximum of three years imprisonment for Schedule IV ones. When charged as a summary conviction offence, the maximum respective sentences are 18 months and one year in jail.

Judges Have Broad Discretion in Sentencing

In response to Supreme Court of Canada rulings that struck down the constitutionality of some drug-related mandatory minimum sentences, the Canadian Government repealed the one-year mandatory minimum penalty that used to be imposed for trafficking in Schedule I or II substances. Thus, Canadian judges have broad discretion in sentencing decisions and do not have to imprison those convicted.

Interestingly, the CDSA does not guide the courts on how they should address drug amounts in trafficking cases. While drug amounts are not named as an aggravating factor for sentencing purposes, judges generally impose harsher sentences on those convicted of trafficking in large quantities of drugs.

According to Section 10 (1) of the CDSA, the purpose of sentencing under the Act 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.” That last part—acknowledging the harm done—likely plays a role in sentencing considerations based on drug quantities. The 120,000 doses of fentanyl and other massive amounts of illegal drugs held by the 23 recently arrested alleged traffickers represent significant potential for harm. If convicted, a judge will likely consider that potential harm far more significant than, say, a defendant convicted for trafficking 100 doses of fentanyl or a half-ounce of cocaine. And this would undoubtedly be reflected in the respective sentencing.

Section 10 of the CDSA also lists aggravating factors that judges should consider when imposing a sentence for drug trafficking. These factors apply if the defendant did any of the following during the commission of the offence:

  • Carried, used or threatened to use a weapon.
  • Used or threatened to use violence.
  • Trafficked any schedule of drug near a school or any other place frequented by youth under age 18.
  • Trafficked any schedule of drug to a person under the age of 18.
  • Used the services of a person under age 18 to help commit the offence or otherwise involve them in the commission of the offence.
  • Was previously convicted of a CDSA-designated offence.

The CDSA does not provide further guidance on how judges should address the aggravating factors but notes that if a judge decides not to sentence a defendant to imprisonment despite any aggravating factors, they must describe why in the decision.

Given the significant amount of drugs and the aggravating factor posed by possession of numerous firearms, if convicted, the 23 referenced alleged traffickers will likely have a difficult time convincing a judge to refrain from imposing a prison sentence.

Mount a Strong Defence Against Trafficking Charges with Mass Tsang

Drug trafficking is a serious crime that can result in severe penalties if you are convicted. The expertise of skilled criminal defence lawyers, such as the team at Mass Tsang, can prove instrumental in securing a favourable outcome. We have decades of experience strategizing winning criminal defence strategies that help our clients avoid prison. Contact us for a free consultation if you or a loved one has been arrested on drug trafficking charges in the Greater Toronto Area.

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