CDSA 5(2): Possession for the Purpose of Trafficking

The short answer

Possession for the purpose of trafficking means having drugs that you intended to sell or pass on to other people. The Crown does not need to prove that any sale actually took place. It is one of the most common serious drug charges in Peel Region, and for drugs like cocaine or fentanyl it carries a maximum of life in prison. Many of these cases turn on whether the evidence really shows an intent to traffic, or only personal use.

What "cds 5 2" means on your papers

Your release papers may describe the charge as "cds 5 2" or "PPT." Both refer to s. 5(2) of the Controlled Drugs and Substances Act, which makes it an offence to possess a controlled substance for the purpose of trafficking. Under the CDSA, "trafficking" includes selling, giving, transferring, transporting, sending or delivering a drug to others, so the planned transfer does not have to involve money.

What the Crown must prove

How the Crown tries to prove purpose

Purpose is rarely proven by direct evidence, so the Crown usually relies on the surrounding circumstances. Common examples include the amount compared with what a typical user would have, packaging into small bags or portions, scales, cutting agents or debt lists, large amounts of cash, and text messages about sales. The Crown may also call a police officer to give opinion evidence about typical personal use amounts and street prices.

For example, a small amount in one bag, with no scale and no messages, looks like personal use. The same amount split into many small bags, with a scale and messages arranging sales, looks much more like trafficking.

Challenging police opinion evidence

Police officers who give opinions about trafficking must have proper training and experience, and their opinions must be based on the actual facts of your case. A lawyer can challenge whether the officer is qualified, whether the opinion goes too far, and whether it ignores facts that point toward personal use, such as a long history of heavy use or a recent bulk purchase for oneself.

What happens after you are charged

1. Bail: For Schedule I or II drugs, you face a reverse onus at bail, so a strong release plan is important from the start.
2. Disclosure: The prosecutor provides police notes, the lab certificate, any phone evidence and the warrant materials.
3. Pre-trial: Your lawyer reviews the search and the evidence of purpose, and discusses resolution options with the prosecutor.
4. Resolution or trial: Many cases resolve through a plea to a lesser charge, while others go to trial on knowledge, purpose or the legality of the search.

Drug charges in Ontario are usually prosecuted by the Public Prosecution Service of Canada, the federal prosecutor, rather than the provincial Crown.

Penalties by schedule

• Schedule I or II: This includes cocaine, fentanyl, heroin and methamphetamine. The maximum is life, and the charge can only be prosecuted by indictment.
• Schedule III or V: This includes psilocybin and LSD. The maximum is 10 years by indictment, or 18 months on summary conviction.
• Schedule IV: This includes certain sedatives. The maximum is 3 years by indictment, or 1 year on summary conviction.

There is no mandatory minimum sentence. However, a conviction brings a mandatory weapons prohibition under s. 109 of the Criminal Code.

Bail

For Schedule I or II drugs, the life maximum creates a reverse onus at bail under s. 515(6)(d) of the Criminal Code. This means you must show the court why you should be released, rather than the prosecutor having to show why you should be detained. See our reverse onus guide.

Common defences

• No knowledge or control: The drugs were found in a shared car or home, and the evidence does not show that they were yours.
• Personal use: The evidence does not prove an intent to traffic.
• Unlawful search: Police breached your Charter rights when they found the drugs. See search and seizure in drug cases.
• Lab or continuity issues: The prosecutor cannot prove what the substance was, or that it was handled properly from seizure to testing.

When the evidence of purpose is weak, the charge may be reduced to simple possession, which carries much lower penalties.

Effects beyond the sentence

A conviction for possession for the purpose of trafficking a Schedule I or II drug can make a permanent resident inadmissible for serious criminality, because the maximum is life. It also brings a weapons prohibition and can lead to being refused entry to the United States. Cash, vehicles and other property connected to the offence can also be forfeited.

What to do now

• Do not discuss the case by phone, text or social media.
• Do not try to access or delete messages on a seized phone or a cloud account.
• If you are held in custody, start lining up a surety and a release plan right away.
• Keep any evidence of personal use, such as treatment or medical records.

Phone evidence

In many 5(2) cases, the most important evidence comes from a seized phone. Police often look for messages that use slang for drugs, prices or meeting places. However, messages can be ambiguous, phones are often shared, and police need a warrant to search most of a phone's contents. Each of these points can weaken the prosecutor's case.

Release conditions in drug cases

People released on drug charges often receive conditions such as a curfew, a ban on having more than one phone, no contact with co-accused and a ban on having drugs or drug paraphernalia. These conditions can be strict, so read them carefully and follow them exactly. If a condition makes work or family life very difficult, a lawyer can ask the prosecutor to change it.

How we can help

We can test the evidence of purpose, challenge the search and look for a path to a lesser charge. Call (647) 223-1980 for a free consultation. We accept Legal Aid Ontario certificates.

Frequently asked questions