What Is a Drug Courier?
- March 31, 2023
- Clayton Rice, K.C.
The use of human carriers for drug trafficking is hidden in obscurity. The evidence about drug couriers is largely drawn from official sources such as law enforcement, customs authorities and court records that collectively reveal a narrow perspective of the global drug market. Definitions of the drug courier tend to be ambiguous with no doctrinal distinction between couriers who are paid a fee to transport drugs and those who derive a benefit from the sale of the drugs upon arrival at their destination. Although the distinction makes a difference in the world of drug commerce it has no legal consequences.
Information about the international drug market is reported annually by the United Nations Office on Drugs and Crime (UNODC) which has shown that markets for the four main drug types follow the basic commercial pattern of production, transit and arrival in primary markets. (here) The four main drug types are generally categorized as cannabis, amphetamine stimulants such as methamphetamine, opiates such as heroin and coca products which are almost exclusively cocaine. This model of the international drug market is based largely on data about the cocaine market gathered by law enforcement agencies. The data includes information disclosed by police agencies about interdiction strategies, drug seizures and techniques employed by drug traffickers. In the World Drug Report 2022, seizures were reported by Member States of the United Nations both in terms of the number of seizures and the quantities seized. Seizures are considered to be “the most comprehensive indicator of the drug situation and its evolution at the global level.” (here)
In a report titled A definition of ‘drug mules’ for use in a European context published by the European Monitoring Centre for Drugs and Drug Addiction in 2012, the methods used by couriers to transport drugs across international borders were broadly categorized as: (a) the subversion of licit means of transit such as hiding drugs among regular cargo on scheduled commercial passenger flights and sending drugs through the postal service; or, (b) covert or illicit transit such as the use of private and unscheduled vehicles to transport shipments. (here) Over the last few years, UNODC has also analyzed the patterns of drug trafficking on the dark net. As of June 2022, according to the data contained in the World Drug Report, more than 1.4 million listings of drugs and other substances and services were advertised on dark net markets between 2011-2022. Over 87,000 vendors were identified with total sales over $1.29 billion of which more than ninety percent were drug related.
The annual World Drug Report also compiles data on new psychoactive substances (NPS). The latest report described this category as “fluid” because new substances are placed under international control every year which causes difficulties for monitoring purposes. The number of new psychoactive substances identified by national authorities and forensic laboratories over the last fifteen years totaled 1,127 by December 2021. This is more than triple the 302 psychoactive substances under international control at the end of 2021. Fentanyl analogues were listed as a new psychoactive substance reported to UNODC by 2021. Described as potentially the “most harmful group” of new psychoactive substances, synthetic opioids on worldwide markets grew from one substance in 2009 to 14 in 2015, 56 in 2019 and 87 in 2020. Synthetic opioids are now the third most numerous group of new psychoactive substances in terms of the number of different substances reported by U.N. Member States in 2020.
3. The Drug Courier Paradigm
The distinctions of “street-level, mid-level and high-level trafficking” are frequently used in Canadian jurisprudence to describe the chain of distribution beginning with the sourcing of a drug by either importation or domestic production through a series of transactions to its ultimate destination. Although it is recognized that this paradigm is imperfect, I will rely upon it in the following discussion of leading cases from the appellate courts of Canada’s four western provinces because it is consistently used throughout the case law.
In R. v. Nishikawa, the defendant sold a gram of cocaine to an undercover police officer. He was then under police surveillance as he visited a cocaine supplier in Calgary, Alberta, and returned to Lethbridge, Alberta, in possession of ten ounces of cocaine. In allowing a Crown appeal and imposing a sentence of thirty months imprisonment, the Alberta Court of Appeal rejected the argument that Mr. Nishikawa’s role was “not vital to the scheme” and “only peripheral to the main and intended activity of trafficking in the sense of selling”. (here) The court stated that “the supply chain depends on a wide variety of individuals, all of whom are indeed vital to the criminal enterprise as a whole” which includes couriers who are not on the periphery of drug trafficking but are integral to it. The definition of traffic in s. 2 of the Controlled Drugs and Substances Act includes “transport” and “deliver” which reflects the “high level of culpability” that Parliament has attached to those carrying out this role. (here) The opinion in Nishikawa has been affirmed in numerous cases including R. v. Felix where the Alberta Court of Appeal emphasized the “integrated” nature of trafficking operations. (here)
The ruling in Nishikawa was followed in R. v. Le where the Saskatchewan Court of Appeal allowed a Crown appeal and imposed a sentence of fourteen months imprisonment for possession of cannabis for the purpose of trafficking. Mr. Le was operating a motor vehicle on the Trans Canada Highway near Swift Current, Saskatchewan, when the RCMP initiated a traffic stop. A hockey bag was found in the vehicle containing thirty-four pounds of marihuana. The court held that the sentencing judge’s description of Mr. Le as a “simple courier” did not diminish his culpability. He was “a necessary and integral part of a larger drug operation”. (here) The court also emphasized its previous ruling in R. v. Bolla that “the interprovincial transportation of marihuana is and continues to be a significant problem.” Consistent with Bolla, and authorities from the courts of other provinces, the Le court held that “in view of the amount and value” of the marihuana involved, a term of imprisonment was dictated by the precedents. (here)
In R. v. Von Holtum, the British Columbia Court of Appeal allowed a Crown appeal and substituted a global sentence of twelve years imprisonment for importing cocaine. Mr. Von Holtum was a baggage handler at the Vancouver International Airport for nineteen years and had access to controlled areas of the facility. He took four suitcases from a baggage conveyor, loaded them onto a cart and was stopped by a baggage agent when he was moving it through the customs hall. The bags contained 50 kilograms of cocaine. (here) The court observed that cocaine is not indigenous to Canada and is “typically traded through a hierarchy of distributors that stretches from the importers, who occupy the highest rung, to the street dealers who sell the drug to individual users.” Importation is often accomplished by the use of “insiders” employed in border-related industries. Insiders are paid “commensurate with the risk” and often receive $500 to $2,000 for each kilogram of cocaine imported.
The court was specifically concerned about whether the ten year sentence imposed by the trial judge gave adequate weight to Mr. Von Holtum’s “role in the importation scheme” viewed contextually. In finding that “[t]here is no category of cocaine offender known as couriers”, the court described the following three sub-categories: (a) runners who assist traffickers by delivering small quantities to users; (b) those who transport cocaine domestically in larger quantities for payment per transaction or on some other basis; and, (c) those who bring cocaine into the country often called “mules”. The court held that Mr. Von Holtum was not simply moving cocaine from one point to another like truckers who courier drugs across the border. The trial judge had erred by failing to consider the “unique context” of Mr. Von Holtum’s position and security clearance that set his circumstances apart from “ordinary couriers”.
In R. v. McLean, the Manitoba Court of Appeal varied a sentence from twelve years to nine years imprisonment for possession of fentanyl for the purpose of trafficking. Mr. McLean conveyed 220 grams of fentanyl and a 981-gram brick of cocaine in his suitcase on a flight from Vancouver, British Columbia, to Winnipeg, Manitoba. He was also sentenced to six years concurrent for the cocaine offence. (here) The court described the backdrop as “the milieu of mid-level drug trafficking and couriers” and endorsed the paradigm of “street-level, mid-level and high-level trafficking”. The court also affirmed the definition of “drug courier” in R. v. Oddleifson as simply “the person who transports the drugs from one point to another”. (here) The court stated that although Manitoba is a “range jurisdiction” for quantifying sentencing guidance where commercial trafficking is categorized by the level of trafficking, the paradigm is a sentencing tool and not a “rigid tariff” to impede sentencing judges from imposing an individualized sentence.
The McLean court also clarified the parameters of the role of a “mere courier”. A courier who simply delivers drugs or money in order to shield another, for minimal compensation, and plays no other role, has less moral culpability than traffickers who are more involved in a drug operation. The expression “mere courier” describes someone who “performs the important function of delivering drugs to protect their ‘boss’ from being detected but does nothing more.” However, where a courier is more trusted and more involved in the operation by such actions as discussing “sales, direct[ing] others, or exercis[ing] some measure of independent control over the transaction,” they are not treated as a “mere courier” for the purposes of sentencing. The term of art that has been applied in the case law from the courts of Manitoba, when the role of a courier is disputed, is whether he or she “had some ‘decision-making’ authority or responsibility.” (here)
It is uncontroversial that the term “drug courier” is consistently used by Canadian courts to describe a human carrier who transports drugs by licit or illicit means. Very little is known about how couriers are paid because drug trafficking is conducted with a high level of obscurity and payment structures are not a relevant consideration in analyzing the legal content of the term. It is problematic to describe a low-level courier as a “mere courier” or an “ordinary courier” for doctrinal purposes. According to the Cambridge Dictionary, the word mere is used to emphasize that something is unimportant which is not the case with a person who is integral to a drug trafficking enterprise and not on the periphery. The answer to the question – “What is a drug courier? – is guided on a case-by-case basis by characterizing the role an individual played in the trafficking network and the degree of their decision-making authority or responsibility. It is a contextual analysis. Other factors such as the nature and quantity of the drug, whether the individual was a domestic courier or a cross-border mule and the amount of compensation are relevant contextual considerations in assessing the moral blameworthiness of an offender for sentencing purposes.