The offence of trafficking in a narcotic involves the transfer of a narcotic from one person to another. While it is usually performed by the sale of narcotics, any transaction would be considered trafficking. In other words, if the narcotic is exchanged for some product other than money, or even if it is given away, the offence of trafficking applies. Under the Controlled Drugs and Substances Act, the offence is also made out if the accused has made an offer to sell or transfer the narcotic, even if the actual sale is not completed.
A person who is in possession of a narcotic can be charged with possession of the narcotic for the purpose of trafficking. This charge is based on an allegation that the accused person is in possession of the narcotic and has the intention to sell or transfer it. Proof of intention can be based on the circumstances surrounding the possession, such as the amount of the narcotic (more than personal use) or the manner in which it is packaged. The possession of other articles which could be used to assist in the sale of a narcotic (i.e. scales, packaging materials or large quantities of cash) may also be considered in determining whether the narcotic is being possessed for the purpose of trafficking.
Penalties for trafficking depend on the nature of the drug being trafficked and the amount of the drug being trafficked. Where the trafficking involves less than 3 kgs of marijuana, the maximum sentence is 5 years custody less 1 day. Cocaine and heroin have maximum sentences of life in prison.
There are also mandatory minimum sentences of 1 and 2 years in certain circumstances. The 1 year mandatory minimum comes into play where there is violence or a weapon used during the transaction or where there is a prior finding of guilt for the same offence. The 2 year mandatory minimum comes into play where the sale involves minors or locations where minors regularly frequent (such as schools).