Trafficking and Possession for the Purpose of Trafficking

• Author: Nathan Gorham/Jeremy Streeter/Breana Vandebeek
• Pages: 165-183



Tracking and

Possession for

the Purpose of

Tracking

7

I. Introduction ............................................. 

II. Tracking in a Substance: Section () ....................... 

A. The Actus Reus of Tracking .......................... 

B. The Mens Rea of Tracking ........................... 

C. Common Defences .................................. 

III. Possession for the Purpose of Tracking: Section() ........... 

A. The Actus Reus and Mens Rea ......................... 

This chapter was authored by Janani Shanmuganathan, a partner at Goddard & Shan-

muganathan LLP.

© 2024 Emond Montgomery Publications. All Rights Reserved.

1 Prosecuting and Defending Drug Cases

I. Introduction

This chapter provides an overview of the oences of “tracking” and “possession

for the purpose of tracking,” two of the most commonly prosecuted drug oences

in Canada. Some of the cases discussed in this chapter relate to oences under the

Narcotic Control Act,1 the predecessor to the Controlled Drugs and Substances Act.2

These cases remain applicable to the tracking and possession for the purpose of

tracking oences under the CDSA, as the oences between the two acts are almost

identical.3

Section 5(1) of the CDSA creates the oence of tracking and section 5(2) the

oence of possession for the purpose of tracking. The sections state as follows:

5(1) No person shall trac in a substance included in Schedule I, II, III or IV or in

any substance represented or held out by that person to be such a substance.

(2) No person shall, for the purpose of tracking, possess a substance included in

Schedule I, II, III or IV.

For the purposes of these oences, the definition of “trac” is statutorily defined

in section 2(1) of the CDSA. The definition encompasses a wide range of behaviour.

As the Ontario Court of Appeal noted in R v Sansalone,4 this broad definition is

meant to facilitate the prosecution of individuals who participate in or contribute to

the tracking of narcotics.5 To “trac” means to sell, administer, give, transfer,

transport, send, or deliver the substance or to sell an authorization to obtain the sub-

stance. An oer to do any of these activities also constitutes tracking under the

CDSA.

II. Tracking in a Substance: Section ()

A. The Actus Reus of Tracking

As with all drug oences, the Crown must prove the essential elements of tracking

beyond a reasonable doubt. The actus reus of the oence typically consists of two

1 RSC 1970, c N-1.

2 SC1996, c 19 [CDSA].

3 For instance, s 4(1) of the Narcotic Control Act criminalizes tracking and s4(2) possession for

the purpose of tracking:

4(1) No person shall trac in a narcotic or any substance represented or held out by the

person to be a narcotic.

(2) No person shall have in his possession any narcotic for the purpose of tracking.

Section 2 of that Act defines “trac” to mean (a) to manufacture, sell, give, administer, trans-

port, send, deliver or distribute, or (b) to oer to do anything referred to in paragraph(a).

4 2010 ONCA 281 [Sansalone CA], leave to appeal to SCC refused, 2010 Can LII 51313.

5 Ibid at para 26.

© 2024 Emond Montgomery Publications. All Rights Reserved.