Drug trafficking Lawyers in Canada

The Crown is the prosecutor. A person charged with an offence is presumed innocent until proven guilty, so the Crown is the side that has to prove the charge. Section 11(d) of the Canadian Charter of Rights and Freedoms protects that presumption.

Section 5 creates two offences. Section 5(1) is trafficking itself, and section 5(2) is possession for the purpose of trafficking. Simple possession is a different offence, in section 4(1), with different maximum penalties.

Section 2 of the CDSA defines to traffic, for a substance included in any of Schedules I to V, as to sell, administer, give, transfer, transport, send or deliver the substance, to sell an authorization to obtain it, or to offer to do any of those things, otherwise than under the authority of the regulations.

For possession for the purpose of trafficking, possession has the meaning given in subsection 4(3) of the Criminal Code. Whether the evidence shows an act of trafficking, or possession for a purpose, is for the court to decide.

Section 5(3) sets the penalty by schedule. If the substance is included in Schedule I or II, the offence is indictable and the maximum is imprisonment for life. If it is included in Schedule III or V, the maximum is 10 years on indictment or eighteen months on summary conviction. If it is included in Schedule IV, the maximum is three years on indictment or one year on summary conviction.

Section 5(3) sets maximums and no minimum term. Life imprisonment is the ceiling the law allows for a Schedule I or II substance. It is not a statement of the sentence in any case.

Section 10(2) of the CDSA tells a court that is sentencing a person convicted of a designated substance offence, which includes the offence in section 5, to consider any relevant aggravating factors. The factors it names include carrying, using or threatening to use a weapon, trafficking in or near a school or to a person under the age of 18 years, and a previous conviction for a designated substance offence. If the court finds one of those factors but decides not to sentence the person to imprisonment, section 10(3) says it shall give reasons.

Section 730 of the Criminal Code, which lets a court direct a discharge instead of a conviction, leaves out an offence punishable by imprisonment for fourteen years or for life. Section 5(3)(a) makes trafficking in a Schedule I or II substance punishable by life.

A conviction, or a discharge, for an offence relating to a contravention of section 5(1) or (2) also leads to a firearms order. Under section 109(1)(c) of the Criminal Code, the court shall, in addition to any other punishment, make an order prohibiting the person from possessing firearms, weapons, ammunition and explosive substances.

The CDSA also deals with property. Under section 14(1), the Attorney General may apply to a judge for a restraint order in respect of non-chemical offence-related property. If the judge is satisfied that there are reasonable grounds to believe the property is non-chemical offence-related property, the judge may make an order prohibiting any person from disposing of, or otherwise dealing with, any interest in it.

Forfeiture is a separate step. Under section 16(1), if a person is convicted, or discharged under section 730 of the Criminal Code, of a designated substance offence and, on the Attorney General's application, the court is satisfied on a balance of probabilities that non-chemical offence-related property is related to the offence, the court shall order the property forfeited. Section 19(1) says that before making that order the court shall require notice to be given to, and may hear, any person who appears to have a valid interest in the property.

Because the Crown must prove the substance and either an act of trafficking or possession for the purpose of trafficking, the facts about each can be questioned at trial.

Section 8 gives everyone the right to be secure against unreasonable search or seizure, and section 9 gives everyone the right not to be arbitrarily detained or imprisoned. Section 10 gives everyone on arrest or detention the right to be informed promptly of the reasons, to retain and instruct counsel without delay and to be informed of that right.

Section 24(1) lets anyone whose Charter rights were infringed or denied apply to a court for a remedy. Under section 24(2), evidence obtained in a manner that infringed a Charter right shall be excluded if admitting it would bring the administration of justice into disrepute. Whether a right was infringed is for the court to decide. Section 11(b) also gives a person charged with an offence the right to be tried within a reasonable time.

In Ontario, every charge under the CDSA starts in the Ontario Court of Justice, and about 95% of charges are completed there. The Superior Court of Justice can try any indictable offence but generally tries only the most serious ones, and the court's own description names drug trafficking among them.

Section 515(1) is the general rule on release: the justice shall make a release order without conditions unless the prosecutor shows cause why detention in custody is justified or why another order under that section should be made. Section 515(6) sets a different rule for some charges. Unless the accused shows cause why detention in custody is not justified, the justice shall order detention if the accused is charged with an offence the subsection lists. The list includes an offence punishable by imprisonment for life under any of sections 5 to 7 of the CDSA, which cover trafficking, importing and exporting, and production. A lawyer can explain whether section 515(6) applies to a particular charge.

A summary conviction appeal in Ontario goes to the Superior Court of Justice sitting in the region, district or county or group of counties where the case was decided. An appeal from a conviction on indictment goes to the court of appeal. Under section 675(1), a person may appeal as of right on a question of law alone. An appeal on a question of fact, or of mixed law and fact, needs leave, as does an appeal against sentence.

Legal Aid Ontario may pay for a lawyer if the person qualifies and is charged with a crime that could mean jail on conviction, or is 12 to 17 and charged under the Youth Criminal Justice Act. Duty counsel is a lawyer at the courthouse for that day. Duty counsel can advise on rights and act at a bail hearing, for people who qualify and have no lawyer.

A legal aid certificate pays a roster lawyer, one approved to take legal aid clients, for the length of the criminal case. Applications are online or by phone at 1-800-668-8258.

The Law Society of Ontario keeps a public Lawyer and Paralegal Directory. The Ontario lawyers on this site are listed by city. Nothing on this page ranks or recommends any of them.