Drug trafficking and distribution refer to the illegal sale, transportation, and distribution of controlled substances and are significant concerns for law enforcement agencies and governments worldwide. These activities are strictly regulated under Canadian law, and individuals found guilty of these offences face significant penalties, including imprisonment, fines, and confiscation of property. If you have been charged with a crime such as trafficking, it is important to hire an experienced criminal defence lawyer as soon as possible.

Controlled Drugs and Substances Act (CDSA)

Trafficking and distribution of an illegal substance are serious offences under the Controlled Drugs and Substances Act (CDSA) – the primary legislation that sets out the rules and regulations for the possession, production, sale, importation, and exportation of controlled substances in Canada. The CDSA classifies drugs into various Schedules (categories) based on their potential for abuse and dependence, with stricter penalties for offences involving substances in higher Schedules.

The Act defines “traffic” 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), otherwise than under the authority of the regulations.

Schedules of controlled substances

Specifically, section 5 (1) of the Controlled Drugs and Substances Act (CDSA) deals with Trafficking of substance and refers to the activities involving substances listed in Schedules I to V of the total six Schedules that appear the CDSA:

• Schedule I: Includes opioids, such as heroin and morphine, as well as cocaine and methamphetamine.
• Schedule II: Includes synthetic cannabinoid receptor type 1 agonists, their salts, derivatives, isomers, and salts of derivatives and isomers. Until 2018 this category included drugs falling within the cannabis family but are now dealt with under the Cannabis Act.
• Schedule III: Includes hallucinogens, such as LSD, psilocybin, and mescaline.
• Schedule IV: Contains barbiturates and anabolic steroids.
• Schedule V: Lists analogues and derivatives of N-Phenyl-4-piperidinamine and its salts.
• Schedule VI: Includes substances primarily used as solvents, such as toluene and acetone.

What are the penalties for drug trafficking and distribution?

Penalties for drug trafficking and distribution in Canada vary depending on the schedule of the controlled substance involved and whether the offence is considered a summary (less severe) offence, or an indictable (more severe) offence. The CDSA states the penalties for trafficking as follows:

Schedule I Substances AND Schedule II Substances

(a) if the subject matter of the offence is a substance included in Schedule I or II, is guilty of an indictable offence and liable to imprisonment for life

Schedule III and Schedule V Substances

(b) if the subject matter of the offence is a substance included in Schedule III or V,

• (i) is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years, or
• (ii) is guilty of an offence punishable on summary conviction and liable to imprisonment for a term not exceeding 18 months;

Schedule IV Substances

(c) where the subject-matter of the offence is a substance included in Schedule IV,

• (i) is guilty of an indictable offence and liable to imprisonment for a term not exceeding three years, or
• (ii) is guilty of an offence punishable on summary conviction and liable to imprisonment for a term not exceeding one year.

Possession of an illegal substance for the purpose of trafficking is an offence under section 5 (2) the CDSA.

Factors that suggest trafficking

Although it is not always clear whether someone is in possession for the purpose of trafficking, the police often rely on a number of surrounding circumstances to lay a charge. For example, a person might be charged with possession for the purpose of trafficking if they have a large quantity of drugs in their possession, or if they are caught with several small packages of drugs which suggests their intention to sell or distribute them.

However, to be convicted of drug trafficking, it must be proven that the person was knowingly involved in some form of drug trafficking activity, that they knew the nature of the drug or substance and that they intended to sell or distribute it. In the most obvious situation, if a person is caught actually selling drugs or trying to sell drugs, they will be charged with trafficking, even if the quantity they are trying to sell is small. Importing charges will also be laid if a person is caught entering Canada with illegal drugs in their possession. However, you do not need to actually sell drugs in order to be guilty of drug trafficking.

What aggravating factors are considered during sentencing?

Aggravating factors are circumstances that may lead to a more severe sentence for an individual convicted of drug trafficking and distribution offences. In the Canadian legal system, judges consider a range of aggravating factors when determining the appropriate sentence for a given case. Some of the key aggravating factors related to drug offences include:

Prior convictions: A history of drug-related offences or other criminal activities may result in a harsher sentence. Repeat offenders are often considered to pose a greater threat to public safety and are therefore subject to increased penalties.

Connection to organized crime: If the offender is found to be a member of, or associated with, an organized crime group, this may lead to a more severe sentence. Organized crime involvement suggests a higher level of criminality and a greater potential for harm to society.

Use of violence or weapons: The use of violence or weapons in the commission of a drug trafficking or distribution offence can significantly increase the severity of the sentence. This may include physical violence, threats of violence, or the possession of firearms or other weapons during the offence.

Vulnerable populations: Targeting or involving vulnerable populations, such as minors, in drug trafficking or distribution activities can result in a more severe sentence. This includes selling drugs to minors, using minors to transport or distribute drugs, or conducting drug-related activities near schools or other places frequented by children.

Large-scale operations: The size and scope of the drug trafficking or distribution operation can influence the severity of the sentence. Individuals involved in large-scale drug operations may face longer prison terms and higher fines, reflecting the increased harm associated with the distribution of larger quantities of drugs.

Endangering public safety: Actions that endanger public safety during the commission of a drug trafficking or distribution offence can lead to a more severe sentence. This may include the use of dangerous substances in drug production, improper storage or disposal of hazardous materials, or driving under the influence while transporting drugs.

Exploitation: Exploiting others to facilitate drug trafficking or distribution can result in a harsher sentence. This includes human trafficking, forced labor, or the use of coercion or threats to compel others to participate in drug-related activities.

Judges have discretion in considering these and other aggravating factors when determining an appropriate sentence for drug trafficking and distribution offences. The presence of multiple aggravating factors may lead to significantly increased penalties, emphasizing the seriousness of the crime and the need to protect public safety.

What mitigating factors are considered during sentencing?

Mitigating factors are circumstances that may lead to a more lenient sentence. These factors can help to provide a more balanced perspective on the offender’s actions and demonstrate that they may not pose a significant threat to society. Judges consider a range of mitigating factors when determining the appropriate sentence for a given case, including:

Absence of prior convictions: If an offender has no prior criminal record, this can be considered a mitigating factor. A clean criminal history suggests that the individual may have been influenced by external factors or poor judgment in committing the offence and might be less likely to reoffend in the future.

Genuine remorse: Demonstrating genuine remorse for the offence and taking responsibility for one’s actions can be seen as a mitigating factor. This may include pleading guilty, apologizing to the victims or community, or participating in rehabilitative programs.

Cooperation with law enforcement: If the offender cooperates with law enforcement during the investigation and provides valuable information that helps to apprehend other offenders or disrupt criminal activities, this can be considered a mitigating factor. Cooperation may indicate a willingness to change and contribute to the prevention of future offences.

Personal circumstances: Judges may consider an offender’s personal circumstances when determining the appropriate sentence. This can include factors such as age, mental or physical health, family responsibilities, employment status, and any history of substance abuse or addiction. These factors may help to provide context for the individual’s actions and suggest potential options for rehabilitation.

Limited involvement in the offence: If an individual’s role in the drug trafficking or distribution offence was minor, this can be considered a mitigating factor. For example, if the offender was solely responsible for transporting a small quantity of drugs, they may receive a more lenient sentence than someone who was actively involved in selling or producing drugs.

Drug addiction: If an offender is found to be suffering from a drug addiction that contributed to their involvement in drug trafficking or distribution, this may be considered a mitigating factor. In such cases, the court may prioritize rehabilitation and treatment for the addiction over punishment.

Positive contributions to society: Demonstrating positive contributions to society, such as engaging in volunteer work, maintaining steady employment, or pursuing educational opportunities, can be seen as a mitigating factor. This may indicate that the offender has the potential to reintegrate into society and contribute positively following their sentence.

Get help

For more information on the CDSA and other drug offences, view other Answers in Criminal Law.

If you have been charged with a crime, it is important to hire an experienced criminal defence lawyer as soon as possible. Contact our preferred criminal defence expert, Calvin Barry Criminal Lawyers for a free consultation at 416-938-5858 .

If you have a criminal record and want to erase it, call toll-free 1-888-808-3628 or learn more at Pardon Partners. It’s easier than you think.

								
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