DRUG TRAFFICKING MORE SERIOUS THAN SIMPLE POSSESSION

Trafficking in any illegal drug is more serious than simple possession.
Jail terms are the norm, whatever the substance involved. Trafficking is
not, however, limited to selling these drugs for profit. Rather the
Controlled Drugs and Substances Act defines "traffic" to mean "to sell,
administer, give, transfer, transport, send or deliver the substance" or to
even offer to do any of these things. Profit is not a necessary element of
the offence. Some individuals buy drugs in larger quantities to get a
better price and sell to friends that which they don't need. This is
trafficking. In fact, one court ruled that simply giving a narcotic to a
friend for safekeeping amounted to trafficking.

The police, however, are not really looking for those who might technically
be guilty of trafficking. They are after the drug dealers who are selling
illegal substances in order to make a profit. The problem -- from their
perspective -- is how to catch these individuals in the act.

It is quite common for police to find individuals using drugs. The smell of
burnt marijuana or hashish can be a dead giveaway. Illegal substances are
often found on individuals who are searched pursuant to an arrest for
non-drug offences. These people will be charged with possession. In some of
these cases the police may have stumbled onto a sale in progress. They
cannot, however, prove that without the co-operation of the purchaser and
that is seldom provided. Officers working undercover are able to catch some
drug dealers but the bigger traffickers are usually reluctant to sell to
strangers and the officers are also limited in what they can and cannot do
to encourage these deals (we will look at the rules regarding entrapment
for example in a later column). All of these factors limit the number of
trafficking charges that are laid.

More common is the charge of possession for the purpose of trafficking.
Many who are caught possessing drugs do so under circumstances giving rise
to the inference that they were going to sell them. Many factors are taken
into account in determining this. What is the drug? How much is present? Is
the amount consistent with personal use or is it more than one person would
reasonably use? Is it all contained in one package or are there numerous
packages of a size more appropriate for a number of sales? What kind of
paraphernalia is present? Rolling papers or a pipe may suggest personal
use. Scales and extra baggies on the other hand may be more useful for
sales. Was a debt list found? Drug dealers will front drugs or sell them on
credit to regular customers. Was a large amount of cash present? All of
these will be taken into account in determining whether the drugs are for
personal use or for the purpose of trafficking.

The sentences handed out for trafficking and possession for the purpose of
trafficking are pretty much the same. Jail is usually imposed for either
offence.

Beyond that, however, there is a tremendous range. A conditional sentence
with house arrest may be considered for a first offender involved in a
relatively small transaction. At the other end of the spectrum, a
large-scale cocaine dealer might be looking at a long time in the
penitentiary. The sentence imposed in any particular case will depend on
many different factors. These include the type and quantity of the drug
involved. What is the age and background of the offender including prior
record? Why is he using these drugs? Are there underlying problems causing
this? Is he an addict? Is he doing anything about this?

This area of the law is too complicated to be explained fully in the space
available here. Anyone who has been charged with such an offence or who
requires further information for any reason should consult a lawyer.

Next column: Even more drug offences.

David Harris is a Burlington resident with a criminal law practice in
Oakville. He is writing a series of columns on criminal law. To find his
past columns, visit the Web site www.lawyers.ca/dharris.