CDSA 5(1): Drug Trafficking Charges

The short answer

Trafficking is much broader than selling drugs. Under the Controlled Drugs and Substances Act, giving, transferring, transporting, sending or delivering drugs, or even offering to do any of these things, can all count as trafficking. No money has to change hands. For drugs like cocaine or fentanyl, the maximum sentence is life, so these charges need careful attention from the very beginning. See our drug offences page for an overview.

What counts as trafficking

Under s. 2 of the CDSA, "traffic" includes several kinds of conduct:

• Selling, giving, administering or transferring a drug to another person.
• Transporting, sending or delivering a drug.
• Offering to do any of these things, even if no drugs ever change hands.
• Selling or offering a substance that you claim is a drug, even if it is not.

For example, agreeing by text message to sell drugs can be trafficking even if the deal never happens. Passing drugs to a friend at a party can also be trafficking, even if no money is involved.

Common situations

• Undercover purchases: An undercover officer buys drugs directly from the person charged.
• Phone evidence: Messages arranging sales are found on a seized phone.
• Social sharing: Drugs are shared or passed around at a party or gathering.
• "Dial-a-dope" operations: Drugs are delivered to customers after they place orders by phone or text.

What the Crown must prove

Undercover and "dial-a-dope" investigations

Many trafficking cases come from undercover operations. Officers may call a phone number they received in a tip, ask to buy drugs and then arrest the person who delivers them. These cases raise important legal questions about whether police had a proper basis for targeting that phone number or person, and whether they offered the opportunity in an acceptable way.

Penalties

Penalties depend on the drug's schedule under s. 5(3) of the CDSA:

• Schedule I or II: The maximum is life, and the charge can only be prosecuted by indictment.
• Schedule III or V: The maximum is 10 years by indictment, or 18 months on summary conviction.
• Schedule IV: The maximum is 3 years by indictment, or 1 year on summary conviction.

There is no mandatory minimum. However, aggravating factors include trafficking near a school, trafficking to a person under 18, or using a person under 18 to commit the offence (CDSA s. 10). Fentanyl and other opioid cases often lead to significant sentences because of the risk of overdose deaths.

What happens after you are charged

1. Bail: For Schedule I or II drugs, there is a reverse onus, so you must show why you should be released.
2. Disclosure: The prosecutor provides undercover notes, recordings, phone records and any lab certificates.
3. Pre-trial: Your lawyer reviews the investigation for entrapment, Charter issues and gaps in the evidence.
4. Resolution or trial: Some cases resolve through a plea to a lesser charge, while others go to trial.

Common defences

• Entrapment: Police offered you the chance to traffic without reasonable suspicion, or pushed you into it. The judge decides this issue after the evidence of guilt has been considered.
• Identity: The phone or account was not yours, or you were not the person involved in the deal.
• No real offer: Read in context, the messages were not a genuine offer to supply drugs.
• Unlawful search: Police breached your rights when searching your phone, car or home. See search and seizure in drug cases.

Effects beyond the sentence

Trafficking in a Schedule I or II drug carries a life maximum, so a conviction can make a permanent resident inadmissible for serious criminality. A conviction also brings a mandatory weapons prohibition (Criminal Code s. 109), and it can lead to being refused entry to the United States. Cash, vehicles and phones connected to the offence may be forfeited.

What to do now

• Do not discuss the case on a phone, by text or on social media.
• Do not contact co-accused or anyone involved in the alleged sales.
• Write down what you remember about any contact with the person who turned out to be an officer.
• If you are held in custody, start preparing a release plan with a surety.

Phone and message evidence

Trafficking cases often depend on text messages, call logs and social media chats. The prosecutor must prove who sent the messages, what they meant and whether they were real offers. Drug slang can be read in more than one way, and phones are often shared between friends or family members. A careful review of the full message history, not just selected parts, can change how the evidence looks.

Bail

For Schedule I or II drugs, trafficking carries a life maximum, which creates a reverse onus at bail under s. 515(6)(d) of the Criminal Code. You must show the court why you should be released. See our reverse onus guide.

Possible outcomes

How we can help

We can review the undercover evidence, the phone records and the search, and test whether the prosecutor can prove a real offer or transfer. Call (647) 223-1980 for a free consultation.

Frequently asked questions