CDSA 5(3)

Defences for Drug Trafficking Charges

Overview

This page contains detailed information about charges of Possession of Drugs for Trafficking. Included are defences, punishments, what's needed to be found guilty, how we can defend you, and actions you can take. It was written and prepared by experienced criminal defence lawyers in Toronto but does not consist of legal advice.

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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:

the substance/drug in question is included in Schedule I, II, III, IV or V of the CDSA;
the accused had knowledge of the nature of the substance/drug;
the accused was in possession of the substance/drug; and
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.

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.

Links and resources

Controlled Drugs and Substances Act — Posession for the Purpose of Trafficking

Recent Successes

Charges Dismissed Fail to Remain at the Scene of an Accident Identification Impaired Driving Our Case Refuse Breath Sample

R. v. C.C – Identification of offender not proven

Our client was charged with Fail to Remain at the Scene of an Accident, Impaired Driving and Refuse Breath Sample. The police received several calls regarding a car that had driven onto the sidewalk and crashed into a utility pole and fire hydrant. The driver ran away from the vehicle and fled through an alleyway. Police searched the area and observed our client, who fit the description of the man witnesses had seen running from where the accident had happened. After speaking to our client for a few minutes, our client became belligerent leading the police officers to handcuff him and detained him in their police car. Our client appeared to be impaired by alcohol. Because our client had refused to identify himself, the police went through his wallet to try to locate his identification. When going through his wallet, the police found a vehicle permit for the vehicle that had been in the accident. At trial, we demonstrated that none of the witnesses actually saw our client get out of the vehicle that had been in the accident. We also successfully argued that our client’s Charter right to be free from arbitrary detention was breached when the police handcuffed and detained him in the police car. They also breached his right to be free from unreasonable search and seizure when they went through his wallet and found the vehicle permit. As a result of these breaches, the circumstantial evidence of the vehicle permit was excluded from evidence and the charges against our client were dismissed.

Assault Assault Bodily Harm Charges Withdrawn Identification Our Case

R. v. C.M – Identification of offender not proven

Our client was charged with Assault Cause Bodily Harm and Assault in relation to a bar fight in which one of the victims was seriously injured as a result of being hit in the head with a beer bottle. We were able to convince the Crown Attorney that considering the commotion inside the bar at the time, the number of people involved in the fight, the poor lighting inside the bar and the fact that all the witnesses appeared to be intoxicated, it was extremely unlikely that it could be proven that our client was the individual who had committed the assaults in question. The charges against our client were withdrawn prior to trial.

Charges Dismissed Dangerous Driving Flight from Police Identification Our Case

R. v. M.N. – Identification of offender not proven

Our client was charged with Flight from Police and Dangerous Driving. He was accused of going close to 200 km/hr on a motorcycle and, when the police tried to pull him over, fleeing at an even higher rate of speed and evading the police officer who was in pursuit. The police officer noted the licence plate number but was unable to identify the rider. At trial, the Crown Attorney had to rely entirely on circumstantial evidence to try to prove the case; specifically the owner of the motorcycle testified that he had loaned the bike to our client on the night of the incident and that our client had even confided in him that he had been able to outrun the police. At trial, the credibility of the owner of the motorcycle was attacked through effective cross-examination. The charges against our client were dismissed on the basis that the identification of the rider of the motorcycle had not been proven.

Charges Dismissed Identification Our Case Robbery

R. v. M.R – Identification of offender not proven, Charges Dismissed

Our client was charged with robbing a man of his wallet in an alleyway. It was alleged that our client had befriended the victim in a bar and that when they went outside for a cigarette together, our client threatened and assaulted the victim and stole his wallet. Our client’s health card was found by the victim in the ground in the alleyway where the robbery had taken place shortly after the assailant was said to have fled. At trial, through effective cross-examination, we successfully demonstrated that victim’s ability to describe the assailant was unreliable and that he may have been mistaken in his belief that the individual who’s photograph was on the health card (our client) was the same person who had robbed him. After our cross-examination of the victim, the Crown Attorney invited the judge to dismiss the charge.

Assault Domestic Assault Not Guilty Our Case Self Defence

R. v G.B. – Reasonable doubt re: self-defence

Our client was charged with several domestic related assaults that his girlfriend alleged had occurred over the course of a couple of months. At trial, our client testified that any physical altercations with his girlfriend were the result of his girlfriend having been the aggressor and that any force he used was done for the purpose of defending himself. We also called witnesses who testified about they dynamic of the relationship and that, on several occasions, they had observed the complainant behave in an aggressive manner towards our client. As a result of our effective cross-examination of the complainant, the judge has significant concerns about the complainant’s credibility. The trial judge concluded that based on all of the evidence, he was uncertain of who to believe and that he had a reasonable doubt that our client may have acted in self-defence. Our client was found not guilty of all the charges.

Assault Bodily Harm Our Case Self Defence

R. v. D.T. – Reasonable doubt re: self-defence

Our client was charged with assault bodily harm after it was alleged that while at a party, our client hit a man in the face with a glass that resulted in serious injuries. At trial, our client testified that his friend had invited him to a party and that while he was socializing, one of the partygoers accused our client of flirting with his girlfriend. This man, along with his friends, surrounded our client in a threatening manner. Our client, who was holding a glass of beer at the time, believed one of the men was about to punch him and that he reacted by striking the man in the face with the glass he was holding. The Court did not reject our client’s evidence and found that it had at least a reasonable doubt that our client had acted in self-defence.

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.