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Possession of a Controlled Substance for the Purpose of Trafficking

Possession of a controlled substance for the purpose of trafficking (“PPT”) is a serious offence that usually attracts significant jail sentences.

The offence is found in s. 5(1) of the Controlled Drugs and Substances Act (“CDSA”). Most other criminal offences are found in the Criminal Code.

Definition of Offence

s. 5(1) of the CDSA is worded 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.

Aside from identity, date, and jurisdiction, to be found guilty of PPT the Crown must prove beyond reasonable doubt that:

1. The accused possessed a substance;
2. The substance is a controlled substance listed in Schedule I, II, or III of the CDSA;
3. The accused’s purpose in possessing the substance was to traffic the substance.

Types of “Possession”

Any criminal act of “possession” requires the Crown to prove both knowledge and control. There are three types of possession:

1. Actual possession;
2. Joint possession; and
3. Constructive possession.

For actual possession, the substance is in the accused’s custody. They must also have had the necessary mens rea (i.e. “guilty mind”) of being aware they were in possession of the substance and knowledge of its character.

For joint possession, the accused may not be in actual possession of a substance but they will be deemed to be in joint possession of it if another person has possession of it with the accused’s knowledge and consent, and the accused has some control over the substance (R.
v. Fisher, 2005 BCCA 444).

For constructive possession, the accused must have:

1. Knowledge of the character of the substance;
2. Been knowingly keeping it or putting it in a place; and
3. An intention that the substance is kept in the place for their use or benefit, or the use or benefit of another.

See R. v. Morelli, 2010 SCC 8.

The Knowledge Requirement

Note that, as per the usual definition of knowledge at law, “knowledge” includes recklessness and wilful blindness. That is, an accused will be deemed to have knowledge for any offence of possession if they:

1. Knowingly took a risk that they possessed something prohibited (i.e. were reckless); or
2. Knew they should have made inquiries that they possessed something prohibited but didn’t want to know the truth (i.e. were wilfully blind).

Points (1) and (2) directly above are also true with regard to knowledge of the character of a substance for any offence of drug possession.

Proof of knowledge is generally inferred from circumstantial evidence tendered by the Crown. For example, if controlled substances are found in a storage locker, the fact finder may infer that the person in whose name the locker was rented had possession of the substances if there is no evidence anyone else had access to the storage locker.

Similarly, whether a substance is possessed for the purpose of trafficking is inferred from the circumstances. If a small amount of controlled substance is found in separate baggies with no other circumstantial evidence, this indicates personal possession. In such a case, the Crown would not be able to prove PPT.

By contrast, if a bulk amount of substance is found in possession of the accused, along with a scale, score cards, cell phones, cash, and numerous baggies, this strongly suggests PPT.

Possession Offences and the Charter of Rights and Freedoms

Possession offences are generally discovered by police through a search warrant or in the course of a warrantless search incident to arrest.

Aside from challenging whether the “knowledge and control” elements can be proven beyond reasonable doubt, defences to possession offences also often involve an analysis of whether the police made procedural errors in obtaining the evidence.

The Charter of Rights and Freedoms provides several procedural safeguards to all Canadian citizens, including:

1. s. 8 – The right to be secure against unreasonable search and seizure;
2. s. 9 – The right not to be arbitrarily detained or imprisoned;
3. s. 10 – The right on arrest or detention (a) to be informed promptly of the reasons therefor, and (b) to retain and instruct counsel without delay and to be informed of that right…

If an accused’s Charter right or rights was breached in the course of the police investigation that yielded the evidence of the prohibited item, then a judge must conduct an analysis set out in the case of R. v. Grant, 2009 SCC 32 to determine whether any evidence obtained in breach of the accused’s Charter rights should be excluded from the accused’s trial.

Grant basically requires a balancing by the trial judge of the severity of the Charter breach or breaches with society’s interest in the case being adjudicated on its merits. It is the leading case on how to apply s. 24(2) of the Charter, which instructs judges to exclude evidence that was obtained in a manner that would bring the administration of justice into disrepute:

24 (2) Where … a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.

Conclusion

Drug offences are a highly technical area of the law to defend. They usually involve a detailed analysis of the police conduct in obtaining the evidence used by the Crown to prove their case.

You can find some case results from the firm on possession of a controlled substance for the purpose of trafficking HERE.

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