R. v. Yung Chan, 2003 CanLII 52165 (ON C.A.)
[27] First, in my view, possession of a particular quantity of a controlled substance is not part of the actus reus of the offence of possession for the purpose of trafficking
[30] Section 5(2) of the Controlled Drugs and Substances Act sets out two components of the actus reus of the offence that it creates: i) that the accused possess a substance; and ii) that the substance possessed actually be a substance named in one of the schedules to the act.
[31] The relevant authorities establish that the mens rea of the offence includes knowledge of the nature of the substance in the sense that an accused person must believe that it is a controlled substance. Further, s. 5(2) specifically requires that the accused person possess the controlled substance for the purpose of trafficking.
[32] Notably however, none of s. 5(2), the definition of “traffic”, or the relevant authorities refers to quantity or to knowledge of a particular quantity as an element of the offence or as a component of the actus reus.
[33] That said, the quantity of a controlled substance that an accused person possesses often plays a role in determining whether an inference of possession for the purpose of trafficking should be drawn. However, the fact that quantity can be, and often is, an indicium of purpose, does not make it a part of the actus reus of the offence.
[34] As noted, neither s. 5(2) of the Controlled Drugs and Substances Act nor the definition of traffic, nor the relevant authorities stipulate that quantity is a part of the actus reus of the offence. Moreover, as a matter of logic, the fact that a person in possession of illicit drugs would or would not traffic the particular quantity of drug that he possesses should not govern the factual question of purpose. For example, the fact that a retailer or wholesaler of illicit drugs would not generally traffic less than a particular quantity should not preclude a conviction for possession for the purpose of trafficking where it is established that that individual planned to add to the smaller quantity so that he would have a quantity suitable for trafficking.
[35] Accordingly, although relevant to proof of an accused person’s intent, I conclude that the quantity of a controlled substance that an accused person possesses does not form part of the actus reus of the offence of possession for the purpose of trafficking
[41] Further, because the specific quantity, or knowledge of the true quantity, of a controlled substance that a person possesses is not “one of the attendant circumstances” required for completion of the actus reus of possession for the purpose of trafficking, the accuracy of the appellant’s belief about the quantity of heroin in the controlled delivery package was also irrelevant to the question of whether the offence was complete.
[43] In my view, the offence of possession for the purpose of trafficking was complete in this case at the moment the appellant obtained possession of the controlled delivery package containing heroin. What the appellant would have done, or did, later, with the single gram of heroin that was in the package, is not only speculative, it is irrelevant.
[44] Further, the fact that the appellant may have attempted unsuccessfully to possess a larger quantity of heroin for the purpose of trafficking does not negate the successful aspect of his conduct; the unsuccessful attempt is subsumed within the fully completed offence.
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