Note[1]
(April 2017)
(Read relevant part of indictment or count)
1. The substance was a controlled substance, namely (specify as set out in the indictment)[4];
2. (NOA) trafficked in (specify);
3. (NOA) knew the nature of the substance; and
4. (NOA) intentionally trafficked.
Unless you are satisfied beyond a reasonable doubt that the Crown has proved all these essential elements, you must find (NOA) not guilty of trafficking.
If you are satisfied beyond a reasonable doubt of each of these essential elements [and you have no reasonable doubt after considering the defence(s) (specify) about which I will instruct you][5], you must find (NOA) guilty of trafficking.
To determine whether the Crown has proved these essential elements, consider the following questions:
I tell you as a matter of law that (specify) is a controlled substance. A Certificate of Analyst has been filed as Exhibit (specify number). This is proof that the substance analyzed was (specify).
This instruction assumes that the analysis set out in the certificate is not contested. If the analysis is challenged or if no Certificate of Analyst has been filed, review the relevant evidence (often an admission of fact) and relate to issue.
Unless you are satisfied beyond a reasonable doubt that the substance was (specify), you must find (NOA) not guilty. Your deliberations would be over.
If you are satisfied beyond a reasonable doubt that that the substance was (specify), you must go on to the next question.
“Traffic” means to sell, administer[6], give, transfer[7], transport[8], send, or deliver something to someone, or to offer to do any of these things[9].
In this case the Crown alleges that (NOA) trafficked in (specify) by (specify the means alleged by the Crown).
Where the Crown relies on more than one means of trafficking, instruct the jury as follows:
Proof of any one of these means is sufficient to establish that (NOA) trafficked in a controlled substance. You do not all have to agree on the same one. If each of you is satisfied beyond a reasonable doubt about one of them, the Crown will have proved this essential element.
Where the Crown alleges trafficking by way of a sale, instruct the jury as follows:
“Sell” has its ordinary meaning and also includes offering for sale, exposing for sale, and possessing for sale and distribution, whether or not the distribution is made for consideration or payment.[10]
(Review relevant evidence and relate to issue)
Unless you are satisfied beyond a reasonable doubt that (NOA) trafficked in (specify), you must find (NOA) not guilty. Your deliberations would be over.
If you are satisfied beyond a reasonable doubt that (NOA) trafficked in (specify), you must go on to the next question.
Knowledge is established if the Crown proves beyond a reasonable doubt that (NOA) knew the substance was (specify as set out in the indictment), or that s/he thought it was some other substance in which trafficking is in fact prohibited.
The Crown need not prove that (NOA) knew the technical name of the substance.
If there is evidence that the accused believed the substance to be another prohibited substance, an instruction along the following lines should be given:[11]
You have heard evidence that (NOA) believed the substance to be (specify) not (specify as set out in the indictment). I tell you as a matter of law that the fact that (NOA) believed the substance to be (specify) is irrelevant because it is an offence to traffic in either substance.
If there is evidence of wilful blindness, an instruction along the following lines should be given:
Knowledge is also established if the Crown proves beyond a reasonable doubt that (NOA) was aware of indications about the illegal nature of the substance but deliberately chose to ignore those indications because s/he did not want to know the truth.
If there is evidence of recklessness, an instruction along the following lines should be given:[12]
Knowledge is also established if the Crown proves beyond a reasonable doubt that (NOA) saw a risk that the substance was illegal, but decided to take the risk.[13]
Where the Crown alleges more than one form of knowledge, instruct the jury as follows:
Any one of these is sufficient to establish (NOA)’s knowledge of the nature of the substance. You do not all have to agree on the same one. If each of you is satisfied beyond a reasonable doubt about one of them, the Crown will have proved the essential element of knowledge.
(Review evidence of (NOA)’s knowledge of the nature of the substance, including any evidence, expert or otherwise, about common street names for the prohibited substance.)
If there is evidence that the accused believed the substance to be a substance that is not prohibited, an instruction along the following lines should be given:
(NOA)’s position is that s/he did not know that the substance was (specify as set out in the indictment) but, rather, honestly believed that the substance was (specify), a substance in which trafficking is not prohibited. (NOA)’s belief must be honest, but it does not have to be reasonable. However, you must consider whether there were reasonable grounds for (NOA)’s belief; the presence or absence of reasonable grounds may help you decide whether (NOA)’s belief was honest.
(NOA) does not have to prove that s/he honestly believed that the substance was (specify). Rather, the Crown must prove beyond a reasonable doubt that (NOA) had no such belief.
It is for you to decide, after considering all of the evidence, whether you are satisfied that the Crown has proved beyond a reasonable doubt that (NOA) knew the nature of the substance.
(Review relevant evidence and relate to issue)
Unless you are satisfied beyond a reasonable doubt that (NOA) knew the nature of the substance, you must find (NOA) not guilty. Your deliberations would be over.
If you are satisfied beyond a reasonable doubt that (NOA) knew the nature of the substance, you must go on to the next question.
The Crown must prove beyond a reasonable doubt that (NOA) intended to do the act or acts that constitute trafficking (or specify). To decide whether (NOA) intentionally trafficked, you will have to consider all the evidence, including anything said or done in the circumstances.
(In a case where intention can be inferred from knowledge (eg where the Crown and defence agree that intention is not a live issue)):
On the evidence in this case, you should have no difficulty concluding that the Crown has proved intention beyond a reasonable doubt.
(In a case where intention is a live issue):
You may infer, as a matter of common sense, that a person usually intends to do what they do. However, you are not required to draw that inference about (NOA). Indeed, you must not do so if, on the whole of the evidence, including (specify evidence of intoxication, mental disorder, or other, which may negate the common sense inference), you have a reasonable doubt whether (NOA) intended to traffic.
(In all cases):
(Review relevant evidence and relate to issue)
Unless you are satisfied beyond a reasonable doubt that (NOA) intentionally trafficked, you must find (NOA) not guilty.
If you are satisfied beyond a reasonable doubt that (NOA) intentionally trafficked, you must find (NOA) guilty of the offence of trafficking in a controlled substance.
[1] Controlled Drugs and Substances Act, S.C. 1996, c. 19. For a helpful discussion see MacFarlane, Frater, and Michaelson, Drug Offences in Canada, 4th edition (Toronto: Canada Law Book).
[2] See s 2(2) of the Controlled Drugs and Substances Act for an expanded definition of “substance.” Note that the definition of controlled substance in the Act includes substances identified in Schedules I, II,III, IV and V, but simple possession is prohibited only with respect to substances set out in Schedules I, II and III, whereas trafficking, and possession for the purpose of trafficking, are prohibited with respect to substances set out in Schedules I, II, III and IV. See s 4(1), and ss 5(1) and (2).
[3] Where the identity of the accused is an issue, remember to include any further instructions that may be relevant (e.g., eyewitness identification, alibi, similar fact, etc.). Where date is an issue, the jury must be told that the Crown must prove that the offence occurred within the time frame indicated in the indictment. Where place is an issue, the jury must be told that the Crown must prove that some part of the offence occurred in the place indicated in the indictment.
Generally, the Crown must prove the date and place specified in the indictment. However, where there is a variation between the evidence and the indictment, refer to s. 601(4.1) of the Criminal Code and the jurisprudence following R. v. B. (G.), [1990] 2 S.C.R. 3.
[4] Section 5(1) of the Controlled Drugs and Substances Act prohibits trafficking in a substance “represented or held out” to be a controlled substance. In a case in which the accused held out a substance to be a controlled substance, but it was not, these instructions will have to be modified.
[5] Insert the bracketed words if appropriate. This instruction will have to be modified where the accused raises a general defence with respect to which he or she has a legal burden of proof, such as mental disorder, extreme intoxication, or automatism.
[6] See R. v. Eccleston and Gianiori, [1975] B.C.J. No. 1062; R. v. Tan, [1984] S.J. No. 689, and R. v. Rousseau (1992), 70 C.C.C. (3d) 445, [1991] J.Q. No 1911.
[7] See R. v. Grant, 2009 S.C.C. 32, at paras. 141-147.
[8] See R. v. Grant, 2009 S.C.C. 32, at paras. 141-147.
[9] With respect to offering, see R. v. Murdock, [2003] O.J. No. 2470.
[10] There are several meanings given to “trafficking,” but this instruction only defines “sell,” because it is specifically defined in the Controlled Drugs and Substances Act, S.C. 1996, c. 19, s 2(1). If other forms of trafficking are alleged, the instruction will have to be modified.
[11] Where the substance is one of those prohibited under the Controlled Drugs and Substances Act (e.g., heroin), it makes no difference if the accused believed it was another substance, provided that the latter is in fact a substance the trafficking in which is illegal (e.g., cocaine) under the Act. See R. v. Kundeus, [1976] 2 SCR 272; R. v. Williams, 2009 ONCA 342, [2009] O.J. 1692 at para. 19.
[12] Prior to 1989, it seemed to be clear that the knowledge element in drug cases could also be established through either recklessness or wilful blindness. The Supreme Court of Canada affirmed a decision of the Ontario Court of Appeal in relation to a charge of possession for the purpose of trafficking, where Martin J.A. had stated that:
In our view, the trial Judge should have directed the jury that if they were satisfied beyond a reasonable doubt that the respondent assumed control of the package, knowing that it contained a drug, the trafficking in which was prohibited, or was wilfully blind to it being such a drug or was reckless as to whether it was such a prohibited drug, then the knowledge necessary to constitute the offence was established.
R. v. Aiello, [1978] O.J. No. 373 (C.A.), at p. 488, affirmed in [1979] 2 S.C.R. 15.
But in 1989, the Ontario Court of Appeal, in R. v. Sandhu, [1989] O.J. No. 1647, held that knowledge for the offence of importing can extend from actual knowledge to wilful blindness, but not to recklessness.
Since then two Courts of Appeal have held that knowledge can be established either by proving wilful blindness or recklessness. See R. v. Oluwa, [1996] B.C.J. No. 1065 (C.A.), R. v. Vu, 2004 BCCA 381, [2004] B.C.J. No. 1387, and R. c. Rathod, 1993 CanLII 4119 (C.A.Q.).
The Supreme Court of Canada reaffirmed in R. v Briscoe, [2010] 1 SCR 411 that, in general, recklessness is a sufficient state of mind for criminal offences.
[13] R. v. Sansregret, [1985] S.C.J. No. 23, (1985), 18 C.C.C. (3d) 223, at p. 235, the Supreme Court of Canada described the difference between recklessness and wilful blindness:
Wilful blindness is distinct from recklessness because, while recklessness involves knowledge of a danger or risk and persistence in a course of conduct which creates a risk that the prohibited result will occur, wilful blindness arises where a person who has become aware of the need for some inquiry declines to make the inquiry because he does not wish to know the truth. He would prefer to remain ignorant. The culpability in recklessness is justified by consciousness of the risk and by proceeding in the face of it, while in wilful blindness it is justified by reason of the accused’s fault in deliberately failing to inquire when he knows there is reason for inquiry.