23 Oct Defending Against Drug Trafficking Charges
Drug trafficking is among the most severe criminal offences in Canada, carrying penalties that can profoundly affect one’s future. Understanding the legal definition, the criteria for trafficking, and the defences available is essential for anyone facing these charges.
This article delves into the complexities of drug trafficking charges. It outlines the typical defences to trafficking charges and the defence strategies to reduce the potential penalties.
Given the gravity of these charges, securing the expertise of a skilled Calgary drug trafficking defence lawyer is crucial to protecting your rights and achieving the best possible outcome.
The Legal Definition and Criteria for Drug Trafficking
The offence of drug trafficking is set out under section 5(1) of the Controlled Drugs and Substances Act (CDSA), while section 5(2) outlines the offence of possession for the purpose of trafficking. They read as follows:
5(1) No person shall traffic in a substance included in Schedule I, II, III, IV or in any substance represented or held out by that person to be such a substance.
(2) No person shall, for the purpose of trafficking, possess a substance included in Schedule I, II, III, IV.
The scope of what constitutes drug trafficking is extensive. Under s. 2(1) of the CDSA, “traffic” means the following:
- (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)
Therefore, drug trafficking is defined broadly to include not only the illegal sale of drugs but also their manufacture, transport, and distribution, among other things. In this way, the law captures a complex spectrum of behaviours that constitute trafficking.
While “sell” means typically to exchange something for consideration, often money, the prosecution is not required to prove the accused received payment to establish that he sold a drug under Canadian drug trafficking law.
Moreover, trafficking can be established by the prosecution if an accused administers a Schedule I, II, III, or IV drug. For example, if an accused inserts a needle which contains heroin into a friend, they will be found to have administered drugs contrary to the CDSA.
Trafficking may occur even if the accused merely gives the drug to another person. What’s more, similar to trafficking, by administering a drug, an accused can be charged with unlawful act manslaughter if they give another person a drug and that person dies.
Notably, a simple offer to sell, administer, give, transfer, transport, deliver or send, or to sell an authorization to obtain can constitute trafficking under the CDSA. One can be convicted of drug trafficking even if they did not intend to follow through with making an offer to do any of the above. The prosecution need only prove that the accused intended to make the offer.
The vast array of actions that can constitute drug trafficking highlights the critical importance of seeking guidance from an experienced Calgary drug trafficking defence lawyer.
In determining whether trafficking has occurred, courts will consider various factors, such as the quantity of the substance in question, its packaging, and the presence of paraphernalia commonly associated with drug sales.
For example, suppose the police find a person in possession of large amounts of cocaine, meth, or fentanyl, alongside the presence of items like baggies and scales. In that case, this can result in charges of drug trafficking because each of these items indicates an intention to traffic.
Defending Against Trafficking Charges
When facing drug trafficking charges, several potential defences may be available, each depending on the unique facts of the case. critical defence element involves the Canadian Charter of Rights and Freedoms, which protects against unreasonable search and seizure. If law enforcement conducted an unlawful search that led to the discovery of drugs, any evidence obtained might be excluded from the trial, potentially reducing or dismissing the charges altogether.
Another essential aspect of defending against trafficking charges is challenging the prosecution’s ability to prove intent. A prosecutor is required to prove beyond a reasonable doubt that an accused intended to distribute a controlled substance.
If the defence can establish that the drugs were for personal use or that the accused had no knowledge of the drugs’ presence, the charges may be significantly reduced or dismissed. Other common defences include entrapment, the agent for the purchaser defence, the blind courier defence, and mistake of fact. We now turn our attention to these defences.
Entrapment
Entrapment commonly arises in the context of dial-a-dope operations, which involve undercover officers acting on tips from a confidential informant, calling telephone numbers and enquiring about buying drugs.
The defence of entrapment is available when police present a person with the opportunity to commit a crime, and there is no reasonable suspicion that the person was already engaged in criminal activity.
Similarly, defence counsel can argue entrapment in cases where the police, acting on reasonable suspicion, go beyond simply providing an opportunity to persuade the person to commit the offence.
The law on entrapment is complex, and there is no bright line between what constitutes a legitimate investigation and inducing a person to traffic drugs. For example, courts have held that the police can say things which can come close to making an offer to purchase drugs. However, courts have also ruled that the police cross the line from investigation to creating the opportunity to traffic when they make specific requests for drugs.
The ambiguity of entrapment underscores the need to consult with an experienced Calgary drug trafficking defence lawyer.
Agent for the Purchaser
This defence arises in cases where the accused was merely acting on behalf of the buyer without any intent to sell or traffic the drugs personally. An accused could put forward this defence if they had intended to facilitate the purchase of drugs rather than their sale.
The Court looks at the specific actions the accused took and examines whether the accused made those actions to assist someone in purchasing drugs or whether they actively provided for the sale of a drug.
This argument succeeded in the case of R v Ahamad, where an undercover cop made an inquiry to the accused about purchasing crack cocaine. The accused gave the undercover cop the drug after receiving $20. The accused testified that his intention for doing so was not to facilitate the sale of crack cocaine but rather to assist and protect the person, as the undercover cop was in a wheelchair outside a restaurant where drugs were sold. The accused was essentially trying to protect a disabled person from being victimized, and not to facilitate the sale of crack cocaine.
Blind Courier
The blind courier defence argues that the accused transported items but was deliberately made unaware of the content of the items.
The defence often arises when an accused person, unbeknownst to them, takes part in the transportation of drugs. For example, a truck driver’s boss informs him that he is transporting dairy products, but the items are, in fact, controlled substances. Such a person is effectively “blind” to the true nature of what is happening.
For this defence to succeed, expert evidence is often necessary at trial to establish the likelihood or unlikelihood that drug traffickers, including drug importers, would risk employing the services of a blind courier to carry out their operation.
Expert witnesses will examine various factors to determine the tenability of the accused’s claim, notably the financial value of the drugs in question. A high-value operation may militate against the likelihood that those in charge of the trafficking operation would instil an individual who was completely unaware of the nature of what they were transporting. In such circumstances, it may be more likely that a careful and trusted individual in the know would be used.
Mistake of Fact
This defence arises when a person incorrectly believes they are handling lawful substances. Essentially, they were “mistaken” about what they were transferring or giving to another person.
However, the accused must honestly and reasonably hold this incorrect belief. For example, in Beaver v. The Queen, the Supreme Court of Canada found that the accused’s argument that he believed he was selling sugar of milk and not an illegal narcotic was honestly and reasonably held in the circumstances. Therefore, the Court ruled that the jury should have been allowed to hear that defence.
It is essential to beware, however, that one can be convicted of trafficking a controlled substance even though the substance transferred to another person was not a controlled drug.
For example, if the accused represented to the buyer or receiver that the substance was a controlled drug as section 5(1) of the CDSA states that “no person shall traffic in a substance included in Schedule I, II, III, IV or in any substance represented or held out by that person to be such a substance”.
In this respect, a criminal conviction can follow even where legal substances are involved.
Mitigating Penalties in Trafficking Cases
Even in situations where a conviction for drug trafficking is likely, defence counsel can employ various strategies to mitigate the penalties. One practical approach is negotiating a plea bargain, which can lead to a reduction in charges or penalties. For instance, a plea bargain may involve pleading guilty to a lesser charge in exchange for a lighter sentence.
Demonstrating efforts toward rehabilitation, such as participation in drug treatment programs or other positive activities, can also influence sentencing. Courts often consider these efforts as evidence of a reduced risk of reoffending, which can result in a more lenient sentence.
Moreover, challenging the reliability and accuracy of the evidence presented by the prosecution can undermine their case, potentially leading to a reduction in charges or penalties. Defence counsel can highlight issues relating to how evidence was collected, tested, or stored to weaken the prosecution’s position.
Conclusion
Drug trafficking charges are complex and the penalties, if convicted, are severe. It is, therefore, crucial that anyone facing such charges consult with an experienced Calgary drug defence lawyer in order to strategize a strong and effective defence.
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