Possession of Narcotics and Trafficking
Possession charges result in circumstances where the accused has the drug on their person, they have it stored elsewhere, or have knowingly asked another person to safeguard the drug. Knowledge and control of consent are key, as seen in the three possession types outlined in the Criminal Code of Canada and summarized below:
• a) Personal/actual possession, which requires the accused have knowledge that the substance is a drug and physical custody of it;
• b) Constructive possession, which requires the accused have knowledge of the drug, control over its location, and intent/consent to possess the item; and
• c) Joint possession (involving multiple individuals), which requires knowledge of the drug, some control over its location, and consent to possess the item.
An example where the accused passenger of a vehicle could be deemed not to have knowledge, control and intention to possess is a situation where drug packets are found by an officer inside the glove compartment of the car. The accused passenger traveling within the car may be found not guilty of possession as there may be a doubt about whether he/she had knowledge of, or control over, the vehicle and the controlled substance.
Trafficking of Controlled Substances
Trafficking relates to the intention or purpose of physically making the drug available to others, regardless of ownership. Possession typically occurs at the same time as trafficking, but possession is not a prerequisite for a trafficking charge to be laid. Trafficking an illegal drug requires that you have the intention or offer to transfer, deliver, give, administer, or sell the narcotic.
You do not have to receive money in order to be charged with trafficking. For example, an undercover officer witnesses a person at a party handing out LSD, which the accused takes and offers half to his friend. It makes no difference that the accused never asked for the drug, that others were taking LSD, that the accused wasn’t sure what the drug was, or that half was passed to a friend. Knowledge of the nature of the substance is not required. Nor the intention to sell, in order to be charged.
The Courts have characterized different levels of trafficking: social trafficking (sharing with friends and not typically associated with making a profit), street level trafficking (often smaller amounts of narcotics), and wholesale commercial trafficking. Wholesale commercial trafficking relates to more sophisticated, higher level operations, often associated with large narcotic seizures or sales.
Investigative Techniques of Police Officers
The standard of proof to secure a warrant to search most often is one of reasonable and probable grounds. However, there are some warrant provisions that only require a reasonable suspicion to execute certain warrants. As a last resort, police officers can apply for a wiretap, but this application must be made in a superior court and the police must establish reasonable and probable grounds and that all other reasonable investigative techniques have not been successful. The police also use tracking devices in vehicles, dial number recorders, production orders for bank and other records, review person subscriber information, conduct covert surveillance, use infrared technology in marijuana cultivation cases, and aerial surveillance to investigate narcotics possessions and trafficking.
Penalties for drug possession or trafficking are subject to the provisions of the Controlled Drugs and Substances Act, the Criminal Code of Canada and the classification and penalties schedules. The drugs are classified in accordance with five schedules. Some offences may be summary conviction only, hybrid (where the Crown can proceed by summary conviction or by indictment). or strictly indictable. For possession of a narcotic, an offender may be diverted wherein they are placed on probation and may be directed to perform community service or take counselling. Once they have completed the program, their charges are withdrawn, and they face no criminal record.
If an accused person is found guilty or pleads guilty, they may receive an absolute discharge, and receive no probation or be placed on probation (conditional discharge). Both charges include a finding of guilt, but the Court does not impose a criminal record.
The Court may also place a person on probation only but impose a criminal record (suspended sentence) or impose a fine or incarceration.
More serious narcotics possession and trafficking offences include mandatory prison sentences and depending on the type of drug could have a 6-month, 12-month or a 24-month minimum. Some offences carry a maximum sentence of up to life imprisonment.
If you are convicted of narcotic possession or trafficking in narcotics, you will likely receive a criminal record unless you have received Alternative Measures or a discharge. Otherwise, you will receive a criminal record for narcotics offences. Acquiring a record suspension (previously known as a pardon) is difficult to obtain and, if granted, requires a five-year waiting period after completion of a summary conviction sentence or ten years for an indictable offence.
The existence of a criminal record may result in denial of employment with government, corporations, and certain professions regulated under provincial statutes. Your application for citizenship could be denied, and you could be deported under immigration rules and statutes if you are not a Canadian citizen. Entry into a foreign country, such as the USA, is highly unlikely. The only way to gain entry to the United States is to apply for a US Travel Waiver through the US authorities, which is difficult to obtain and not routinely granted.
Drug prosecutions are serious. The state has significant resources to investigate and prosecute drug cases. You need a qualified and experienced drug lawyer who can represent, protect and defend you if you are accused of possession or trafficking in narcotics.
Davidson Gregory Tralenberg is an experienced and knowledgeable criminal law firm based in Edmonton who will vigorously defend your drug case. They have represented many clients in the Edmonton area and other parts of Western Canada.