CDSA 5(3)

Defences for Drug Trafficking Charges

Defences for Drug Trafficking in Toronto
Table of Contents
    Add a header to begin generating the table of contents
    Scroll to Top

    Offence:  Possession of drugs for the purpose of trafficking contrary to section 5(3) of the Controlled Drugs and Substances Act (CDSA)

    To be found guilty of Drug Trafficking

    The Crown Attorney has to prove ALL of these things BEYOND A REASONABLE DOUBT:

    1. the substance/drug in question is included in Schedule I, II, III, IV or V of the CDSA;
    2. the accused had knowledge of the nature of the substance/drug;
    3. the accused was in possession of the substance/drug; and
    4. the possession of the substance/drug was for the purpose of trafficking.
     
     
     

    Other Forms of Liability

    • Joint possession
     

    How we can defend you 

    Drug offences are very technical to prove and defend.  To maximize your chance of success, it is important that you have an experienced lawyer with strong cross-examination skills and who is up-to-date on the most recent court cases.  Norm and Marcus have successfully defended hundreds of drug cases.  

    Every Defence.  

    Charged with a Criminal Offence? Get Every Defence.

    With over 25 years experience, Norm and Marcus have successfully defended hundreds of drinking and driving cases, including impaired driving/care or control (by alcohol), impaired driving/care or control (by drug), Over 80 (now 80 or over) and refuse or fail to provide a breath sample.  Many of these cases have involved bodily harm or death.  Accomplished trial lawyers, Marcus and Norm will carefully assess your case and argue for every defence available to you, including defences under the Canadian Charter of Rights and Freedoms
     

    Do not plead guilty to drug trafficking charges without discussing your case with a lawyer. 

    Many drug offences have mandatory minimum sentences and a conviction will often result in a lengthy jail sentence.  Being found guilty may result in negative employment, immigration and personal consequences to you and your family for years to come. 

     

    Every Defence. Norm and Marcus will ensure that all of your rights are protected. You are presumed innocent. We will fight for the positive result you need to move on with your life.

    To speak with Norm or Marcus, call (416) 855-7799 or email us at [email protected] We accept calls 24 hours a day, 7 days a week. Confidentiality guaranteed. Free consultations. Meeting by appointment only.

    Toronto Criminal Defence Lawyers

    Defences for drug trafficking charges:

    • Identity of accused not proven
    • Nature of the substance/drug not proven
    • Knowledge of the nature of the substance/drug not proven
    • Mistake as to nature of the substance/drug
    • Possession of the substance/drug not proven
    • Innocent possession/Possession for lawful purposes
    • For the purpose of trafficking in the substance/drug in the future not proven
    • Abandonment of purpose
    • Licence or prescription
    • Duress
    • Breach of right to be free from unreasonable search and seizure (Charter)
    • Breach of right to be free from arbitrary detention (Charter)
    • Breach of rights to counsel (Charter)
    • Breach of right to a trial within a reasonable time (Charter)
    • Excessive use of force by police (Charter)
      Abuse of process (Charter)

    Punishment IF found guilty

    Where the substance/drug in question is included in Schedule I or II:

    • The maximum sentence is life in prison;
    • This offence is NOT eligible for a conditional sentence (house arrest).

    Where the substance/drug in question is included in Schedule I or II,
    AND
    (A) the person committed the offence for the benefit of, at the direction of or in association with a criminal organization, as defined in subsection 467.1(1) of the Criminal Code, or
    (B) the person used or threatened to use violence in committing the offence, or
    (C) the person carried, used or threatened to use a weapon in committing the offence:

    • The maximum sentence is life in prison;
    • The mandatory minimum sentence is one year in prison;
    • This offence is NOT eligible for a conditional sentence (house arrest).

    Where the substance in question is included in Schedule I or II,
    AND
    (A) the person committed the offence in or near a school, on or near school grounds or in or near any other public place usually frequented by persons under the age of eighteen years,
    (B) the person committed the offence in a prison, as defined in section 2 of the Criminal Code, or on its grounds, or
    (C) the person used the services of a person under the age of eighteen years, or involved such a person, in committing the offence:

    • The maximum sentence is life in prison;
    • The mandatory minimum sentence is two years in prison;
    • This offence is NOT eligible for a conditional sentence (house arrest).

     

    Where the substance/drug in question is included in Schedule III or V,

    • IF the Crown Attorney elects to proceed by indictment: The maximum sentence is ten years in prison;
    • IF the Crown Attorney elects to proceed by summary conviction: The maximum sentence is eighteen months in prison.

    Where the substance/drug in question is included in Schedule IV

    • IF the Crown Attorney elects to proceed by indictment: The maximum sentence is three years in prison;
    • IF the Crown Attorney elects to proceed by summary conviction: The maximum sentence is one year in prison.

    Recent Successes

    Air of RealityProvocationSECOND DEGREE MURDER

    R v BARRETT 2022

    Anyone charged with a criminal offence has the right to pursue Every Defence including the defence of Provocation. An Accused may advance the defence that they committed the offence alleged as the result of an act so provocative that it had the effect of depriving the Accused of the ability to control their behaviour. This means that the offence was committed involuntarily rather than intentionally. In this case, the Accused was charged with Second-Degree Murder. The Accused and the deceased had a history of physical fights. At trial, the Accused argued that the jury should be instructed to consider the defence of Provocation. This would require the jury to take into account the Accused’s “state of mind, including alcohol consumption, mental disorder, rage, fear, and [the deceased’s] provoking or threatening words or conduct.” The trial judge found that there was no air of reality to the defence and refused to instruct the jury on Provocation which if accepted, could have resulted in an acquittal or conviction of a lesser charge such as Manslaughter. The Accused testified he observed the deceased threatening and/or stabbing the deceased’s domestic partner. The deceased was armed with two kitchen knives. The Accused confronted the deceased, took control of one of the knives and stabbed the deceased 22 times. The Accused further testified that during the course of the struggle over the knives, the deceased stated he “was going to fucking kill me”. The Court of Appeal for Ontario ordered a new trial.

    Air of RealityAir of RealityDuressTrafficking DrugsTrafficking Drugs

    R v NORMAN, 2021 ONCA 321 – Duress defence against drug trafficking charges

    Every Accused may advance the defence that they committed the offence alleged under Duress. This means that the offence was committed involuntarily rather than intentionally. In this case, the Accused was charged with Trafficking and Breach of Probation for smuggling drugs into the Central East Correctional Centre in Lindsay, Ontario. At trial, the Accused argued that he was forced into committing the offence because of threats made against him and his brother by “Big Newf”. The Accused was a seasoned inmate while it was his brother’s first time in custody. The trial judge found that there was an “air of reality to the defence of duress and that the Crown had failed to prove beyond a reasonable doubt that the defence did not apply”. The Accused was acquitted of all charges.

    Alibi

    R v BUSHIRI

    Every Accused charged with an offence may put forward the defence that they were not present at the time and place the crime is alleged to have occurred. Alibi is Latin for elsewhere. The alibi defence does not need to be disclosed at the time of arrest but the details of the alibi must be provided to the prosecution with enough time for them to investigate prior to trial. If an Accused fails to give sufficient notice of their alibi, the judge or jury “may draw an adverse inference when weighing the alibi evidence”. In this case, the Accused mentioned a possible alibi defence on the first day of trial and provided details of the alibi to the Crown Attorney on the following day. The Accused’s brother testified that the Accused was with him at the time of the offence. The judge gave the alibi evidence no weight because of the late notice and for being incredulous.

    Aggravated AssaultAir of RealityDefence of OthersPossession of Weapon for Dangerous PurposeSelf Defence

    R v PAUL

    Every Accused charged with an offence may present evidence that the offence was committed in self-defence and/or the defence of others. Persons who themselves are the target of violence or the threat of violence may use reasonable force to defend themselves. Likewise, a person may use reasonable force in the defence of another party. In this case, a fight ensued wherein the complainant was armed with a machete and a knife while the Accused wielded a hammer. At some point the Accused struck the complainant’s hand with the machete. A new trial was ordered on appeal after the trial judge failed to instruct the jury to consider self-defence and/or in the defence of a third-party. The test for if a defence should be left with the jury, ie. whether there is an “air of reality” to the proposed defence, is three-fold. Is there evidence on which a jury could reasonably find that each of the three criteria of self-defence and/or defence of others were not disproven beyond a reasonable doubt: (a) could a jury reasonably conclude that the Accused believed on reasonable grounds that force or threat of force was being used against them or someone else; (b) could a jury reasonably conclude that the subjective purpose of the defensive act was for the Accused to protect themselves or others; and (c) the reasonableness of the force used.   https://www.canlii.org/en/on/onca/doc/2020/2020onca259/2020onca259.html

    Air of RealityAlternate Suspect - Third Party SuspectCircumstantial EvidenceDirect EvidenceDisposition or Propensity to Commit Offence

    R v HUDSON – Alternate Suspect – Third Party Suspect

    Every Accused charged with an offence may present evidence in their defence that another person committed that offence instead of them. An alternative suspect would be a co-accused or someone who is already involved in the case. Third-party suspects are people who have not come to the attention of the police, Crown Attorney or court. The evidence offered may be direct, circumstantial or a combination of both. Direct evidence might be that the Accused observed the alternate suspect or third party suspect commit the offence. An example of circumstantial evidence is that the alternate suspect or third party suspect has an extensive criminal record for committing the same kind of offence and/or had recently threaten to commit the offence. In order for the judge or jury to consider an alternative suspect or third party suspect defence the evidence must have an “air of reality” – this means it must be possible that the evidence is true. CanLII Link Defence – Alternate Suspect – Third Party Suspect – Disposition or Propensity to Commit Offence

    Impaired DrivingNecessityNew TrialRight to Remain Silent

    R. v G. – Defence of Necessity

    The Accused was charged with drinking and driving as well as aggravated assault and property damage. At trial, the Accused testified that she drove the vehicle while intoxicated out of necessity. That is, in order to escape circumstances in which she feared for her safety. The Crown Attorney’s questioning of the Accused at trial about why she did not tell the arresting officers about the necessity conflicted with the Accused’s right to silence. A new trial was ordered. CanLII Record  

    R v NORMAN, 2021 ONCA 321 – Duress defence against drug trafficking charges

    Every Accused may advance the defence that they committed the offence alleged under Duress. This means that the offence was committed involuntarily rather than intentionally. In this case, the Accused was charged with Trafficking and Breach of Probation for smuggling drugs into the Central East Correctional Centre in Lindsay, Ontario. At trial, the Accused argued that he was forced into committing the offence because of threats made against him and his brother by “Big Newf”. The Accused was a seasoned inmate while it was his brother’s first time in custody. The trial judge found that there was an “air of reality to the defence of duress and that the Crown had failed to prove beyond a reasonable doubt that the defence did not apply”. The Accused was acquitted of all charges.

    R. v. A.F — Drug Trafficking Charges Withdrawn

    Our client was charged with possession of cocaine for the purpose of trafficking. Police executed a search warrant at our client’s residence and seized a large amount of cocaine as well as cutting agents, scales, baggies and cash. We filed a Charter application alleging breaches of our client’s rights to counsel, his right to be free from unreasonable search and seizure and his right to be free from arbitrary detention. After reviewing our Charter application, the Crown Attorney agreed to withdraw this charge. Note: This is a case where the police obtained a search warrant

    R. v. T.B

    Note: This is a case where the police did not obtain a search warrant

    Our client was charged with possession of cocaine for the purpose of trafficking and possession of explosives and a restricted firearm with ammunition.

    Police received a complaint from a man who alleged that he had just been in a fight with our client in front of our client’s house and that our client said he was going inside to get a gun.  Because the complaint involved a firearm, more than a dozen police officers immediately attended at our client’s house.  The police claimed that when they arrived, they saw the lights of a vehicle in the driveway flash on and off and saw a man run into a wooded area.  A short time later, officers found our client in the wooded area and arrested him.  They then immediately searched our client’s home and the car in the driveway.  In the house, they found a large quantity of cocaine and other items consistent with drug trafficking. In the car, they found a firearm that was stored with ammunition and other explosives.

    Upon a review of the disclosure, we discovered that several of the police officers noted inconsistent explanations for why they decided to search the house and the car immediately rather than applying for a search warrant. Furthermore, we could prove that the explanations given by several of the officers were untrue. We believed that the police knew they did not have a lawful justification for searching the home and that a search warrant would not have been granted had they applied for one.

    After a number of pretrials with the Crown and a judge, the Crown agreed to withdraw these charges.

     

    R. v. A.F

    Note: This is a case where the police obtained a search warrant

    Our client was charged with possession of cocaine for the purpose of trafficking.

    Police executed a search warrant at our client’s residence and seized a large amount of cocaine as well as cutting agents, scales, baggies and cash.

    We filed a Charter application alleging breaches of our client’s rights to counsel, his right to be free from unreasonable search and seizure and his right to be free from arbitrary detention.  After reviewing our Charter application, the Crown Attorney agreed to withdraw this charge.