According to the CDSA, the meaning of "traffic" is to:

1. to sell, administer, give, transfer, transport, send or deliver the substance,
2. to sell, administer, give, transfer, transport, send or deliver the substance,
3. to sell an authorization to obtain the substance, or
4. to offer to do anything mentioned above,

unless under the authority of the CDSA regulations.

"Possession" is defined as knowingly having the unauthorized control of an illegal substance for the purposes of trafficking in by any of the means stated above.

When assessing whether to hire a lawyer when charged, it is important to first be aware of the legal consequences in the event one is found guilty of the offences under the CDSA. The penalties will depend on:

• whether the controlled substance within the charge is included in Schedule I, II, III, IV, or V, and
• whether the charge is prosecuted summarily or by indictment.

The table below summarizes the different penalties:

In addition to these sentences, there can be an order for probation and/or fine. That being said, the ultimate sentence received will depend on a number of factors, including the type of controlled substance found on the accused, the quantity of the substance, and any prior criminal record of the accused.

For an accused to be found guilty of Drug Trafficking or Possession for the Purpose of Drug Trafficking, the Court must be satisfied beyond a reasonable doubt that each of the following requirements has been met:

1. Drug Trafficking - s. 5(1) of the CDSA
   
   1. The accused was "trafficking" in a substance (as per the definition above),
   2. The accused knew they were trafficking the substance, and
   3. The substance is a controlled substance under Schedule I, II, III, IV, or V of the CDSA;
2. Possession for the Purpose of Drug Trafficking – s. 5(2) of the CDSA
   
   1. The accused "possessed" a substance, which has 2 requirements:
      
      1. The accused had control of the substance, i.e., it was either on the accused’s body or on a place that the accused had control of (such as their vehicle or residence), and
      2. The accused knew that the substance was illegal;
   2. The substance is a controlled substance under Schedule I, II, III, IV, or V of the CDSA;
   3. The possession of the substance was not authorized under the CDSA regulations; and
   4. The accused possessed the substance for trafficking purposes.

There are various ways in which charges of Drug Trafficking and Possession for the Purpose of Drug Trafficking can be defended, ideally by raising a reasonable doubt toward one or more of the required elements, such as:

• identity of the accused,
• whether the alleged act(s) met the definition of "trafficking",
• whether or not the accused had control of the substance,
• whether or not the accused knew they were trafficking or if the substance was illegal,
• whether or not the substance was a controlled substance included in the Schedules I to V, and
• whether the accused, despite having possession, had the intent to traffic.

Additionally, the accused can bring Charter challenges before the Court for exclusion of evidence, if the evidence obtained was a result of a violation of their constitutional rights during the investigation or arrest.

For reference, the offence of Drug Trafficking and Possession for Purpose of Drug Trafficking are outlined in the CDSA as follows:

Trafficking in substance

5 (1) No person shall traffic in a substance included in Schedule I, II, III, IV or V or in any substance represented or held out by that person to be such a substance.

Possession for purpose of trafficking

(2) No person shall, for the purpose of trafficking, possess a substance included in Schedule I, II, III, IV or V.

Punishment

(3) Every person who contravenes subsection (1) or (2)

(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;

(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 eighteen months; and

(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.

Interpretation

(5) For the purposes of applying subsection (3) in respect of an offence under subsection (1), a reference to a substance included in Schedule I, II, III, IV or V includes a reference to any substance represented or held out to be a substance included in that Schedule.

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For a complete list of the controlled drugs and substances under each Schedule, please refer to the following links:

• Schedule I
• Schedule II
• Schedule III
• Schedule IV

Are you facing drug trafficking charges? Are you under investigation? Speak to a Vancouver and Surrey criminal lawyer as soon as possible. We know the system. We get results. Call us immediately. The sooner you contact us, the sooner we can get started. We will defend you against these drug possession charges.

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