Criminal Law
Drug Trafficking
Criminal Law
Drug Trafficking
Many drug-related offences, whether it is production, possession, trafficking, export, or import of the drug, attract strict punishment under Canadian law. However, such offences are not governed by the Criminal Code of Canada. They fall under the Controlled Drugs and Substances Act (CDSA), and the legal penalties are classified into different categories based on the schedule of the drugs involved in the offence. In case of a serious offence, the conviction could even result in a life term in prison. This is why employing the services of an experienced criminal defence lawyer is crucial to getting the charges reduced or dropped.
What constitutes a drug trafficking offence?
The charge of drug trafficking is defined under the Controlled Drugs and Substances Act as an act involving any of the following.
- The act of giving, selling, transporting, administering, delivering, or sending an illegal or controlled substance under CDSA.
- The act of selling the authorization to obtain an illegal or controlled substance.
- The act of selling counterfeit-controlled substances under the CDSA, for example, icing sugar instead of cocaine or chunks of drywall instead of crack cocaine rocks.
It is worth noting here that the drug trafficking offences falling under the Controlled Drugs and Substances Act (CDSA) are pursued by the Federal Crown and not the Provincial Crown.
What are the legal penalties for drug trafficking charges?
Indictable Offence:
The offence of trafficking of Schedule I & II drugs will be automatically treated as an indictable offence as per the provisions of CDSA.
Hybrid Offence:
The trafficking of other scheduled drugs is treated as a hybrid offence. The Crown will decide whether to pursue the case as an indictable offence or a summary conviction, depending on the nature of the offence, aggravating factors, and the criminal record of the accused.
Schedule 1:
Hard drugs such as cocaine, heroin, opium, fentanyl, oxycodone, methamphetamine, morphine, and amphetamines.
- Trafficking: A minimum mandatory sentence of 1 year for the List A Aggravating Factors under the act and a minimum of 2 years for the List B Aggravating Factors.
- Possession for trafficking: A minimum mandatory sentence of 1 year for the List A Aggravating Factors under the act and a minimum of 2 years for the List B Aggravating Factors.
- Import or export: A minimum mandatory sentence of 1 year for the import/export of any of the Schedule 1 drugs below the weight of 1 kg and a minimum of 2 years for the import/export of any of the Schedule 1 drugs above 1 kg in weight.
- Possession for exporting: A minimum mandatory sentence of 1 year for any of the Schedule 1 drugs below the weight of 1 kg and a minimum of 2 years for any of the Schedule 1 drugs above 1 kg in weight.
Schedule 2:
Other less dangerous drugs, such as cannabis, marijuana, cannabis resin, and cannabis oil.
- Trafficking: For any offence involving more than 3 kg of the drug, a minimum mandatory sentence of 1 year for the List A Aggravating Factors under the act and a minimum of 2 years for the List B Aggravating Factors.
- Possession for trafficking: For any offence involving more than 3 kg of the drug, a minimum mandatory sentence of 1 year for the List A Aggravating Factors under the act and a minimum of 2 years for the List B Aggravating Factors.
- Import or export: A minimum mandatory sentence of 1 year for the import/export of the drug.
- Possession for exporting: A minimum mandatory sentence of 1 year.
How do the aggravating factors affect the penalties in a drug offence?
Any of the List A, List B, or the Health and Safety aggravating factors associated with the offence might prompt the Crown to pursue the indictable offence option instead of summary conviction and, even there, seek severe penalties for the indictable offence. An aggravating factor is any accompanying aspect of the offence that increases the severity of the charges as per the provisions of the Act.
List A Aggravating Factors:
- The offence was committed on behalf of a criminal organization.
- There was a threat of violence or the use of weapons involved.
- Record of a previous drug offence conviction within the last ten years.
- Abused a position of authority to gain access to a restricted area in order to facilitate the import/export of the drug.
List B Aggravating Factors:
- The offence was committed in or near a school or any other location frequented by children or minors.
- The offence was committed in a prison.
- The offence was committed by employing a minor, or the drug was sold to a minor.
Health and Safety Factors:
- The accused used the property belonging to a third party to facilitate the offence.
- The production of the drug put the health, safety, or security of the minors in that area at risk.
- The production of the drug put the safety of the public in a residential area at risk.
- The accused set up traps or devices in the location, putting the public at risk of bodily harm or even death.
How will the Crown try to prove the drug trafficking charges in court?
In order to obtain a conviction on the drug trafficking charges against the accused, the Crown must prove the following.
- There is conclusive evidence to prove that a scheduled drug was found in the possession of the accused.
- The accused was well aware of the illegal nature of the substance.
- There is enough evidence to show that the accused intended to sell, distribute, or transport the illegal substance.
- The guilt of the accused is established beyond a reasonable doubt.
How can our criminal defence lawyers help you?
The aggravating factors, nature of the offence, and previous criminal record could lead to severe penalties, and in some cases, even a life sentence upon conviction. This is where engaging an experienced criminal defence lawyer becomes crucial in your case. An experienced criminal defence lawyer will look for the following in your case.
Charter rights violations:
While conducting the investigation and performing the arrest of the accused or the search of their premises, the police are expected to respect the rights of the accused accorded to them by law. These rights include the following.
- The right to remain silent.
- The right to be informed of the charges.
- The right to retain and instruct counsel without delay.
- The right to be free from arbitrary detention.
Your lawyer will ensure that your rights are safeguarded throughout the process and seek the disqualification of any evidence obtained through the violation of any Charter rights.
Weak or insufficient evidence:
Your lawyer will scrutinize the evidence gathered by the Crown, looking for any weaknesses and inconsistencies, and they will also conduct investigations on their own to determine the facts of the case. This will help them prepare a strong defence in their client’s favour.
The threshold of reasonable doubt:
The burden of proof in a criminal law case is much higher than that in a civil case. The Crown must establish the guilt of the accused in court beyond a reasonable doubt. Failing this, the defendant’s lawyer will seek for the charges to be dropped.
We can Help
If you are facing drug trafficking or any other drug-related charges, do not hesitate to reach out to our criminal defence team for support and guidance. At Nanda and Associate Lawyers, our criminal defence team has a stellar track record of successfully helping numerous clients in their criminal cases.
Frequently Asked Questions
What is the minimum sentence for drug trafficking in Canada?
Under the Controlled Drugs and Substances Act (CDSA), the minimum sentence for drug trafficking will be as follows.
- In case of Schedule I drugs
A minimum mandatory sentence of 1 year for the List A Aggravating Factors under the act and a minimum of 2 years for the List B Aggravating Factors.
- In case of Schedule II drugs
For any offence involving more than 3 kg of the drug, a minimum mandatory sentence of 1 year for the List A Aggravating Factors under the act and a minimum of 2 years for the List B Aggravating Factors.
What is the maximum sentence for drug trafficking in Canada?
Under CDSA, the maximum possible sentence for drug trafficking in Canada is a life term in prison. The aggravating factors involved in the offence, such as the use of or the threat to use violence, the criminal history of the accused, and his association with any criminal organization, might force the Crown to seek the maximum legal sentence in the case. Reach out to our civil defence lawyer as soon as the charges are laid against you to build a strong legal defence to help you avoid such severe legal penalties.
Does a first-time offender go to jail for drug trafficking?
A first-time offender might be able to avoid jail time in a minor case of drug trafficking without any aggravating factors. However, all drug offences are considered serious offences under Canadian law. They fall under the Controlled Drugs and Substances Act (CDSA) and are pursued by the Federal Crown, not the Provincial Crown. While the Crown might look favourably at the accused’s clean record so far, the final sentence in the case will depend on the nature of the offence, the schedule of the trafficked drug under CDSA, and the aggravating factors associated with the offence. Connect with our criminal defence lawyer with the details of your case for legal guidance and assistance.
What is the statute of limitations for a drug trafficking charge in Canada?
Under Canadian law, the statute of limitations does not apply to indictable offences. Already, the trafficking of Schedule I or Schedule II drugs is an indictable offence. While the trafficking of other scheduled drugs is a hybrid offence, the Crown reserves the right to treat them as an indictable offence depending on the circumstances of the case. In other words, the Crown can simply overcome the limitations of the twelve-month statute of limitations applicable to summary conviction cases by opting to pursue the charge as an indictable offence.
Is drug trafficking an indictable offence in Canada?
Under the Controlled Drugs and Substances Act (CDSA), the trafficking of Schedule I & II drugs is automatically an indictable offence. The trafficking of other scheduled drugs remains a hybrid offence, leaving the matter to the Crown to decide whether to pursue the case as an indictable offence or a summary conviction. Depending on the nature of the offence, aggravating factors, and the criminal record of the accused, the Crown might choose to pursue the indictable offence route in the case.
In short: The Mandatory Reporting Act of 2011 has already made it...
In short: Regardless of the nature of the alleged crime, the Canadian...
In short: The Canadian Law expects law enforcement officials to respect the...