Drug offences and how to defend them
The Controlled Drugs and Substances Act is Canada’s federal drug control statute. Passed in 1996 under Prime Minister Jean Chrétien’s government, it repeals the Narcotic Control Act and Parts III and IV of the Food and Drug Act and establishes eight Schedules of controlled substances and two Classes of precursors. It provides that “The Governor in Council may, by order, amend any of Schedules I to VIII by adding to them or deleting from them any item or portion of an item, where the Governor in Council deems the amendment to be necessary in the public interest.”
The Act serves as the implementing legislation for the Single Convention on Narcotic Drugs, the Convention on Psycho tropic Substances, and the United Nations Convention Against Illicit Traffic in Narcotic Drugs and Psycho tropic Substances.
Schedules and precursors
1- Scheduled drugs
Canada’s drug laws are complex, the schedules are the list of drugs that the offences of possession and trafficking prohibit either to have or to sell. That is depending on which scheduled drug is used the offences of possession and trafficking treat them differently for sentencing purposes.
2-Precursors
Precursors are the chemicals that are used to make certain drugs such Crystal meth or Ice as it is sometimes called and as such there may be criminal charges that will be attached mostly to the possession of these precursors.
The Schedules for illegal drugs
The list of scheduled drugs is long but to explain the offences here is the list of scheduled drugs that have criminality attached to them;
Schedule I
Opium Poppy (Papaver somniferum), its preparations, derivatives, alkaloids and salts, including:
Opium
Codeine (methyl morphine)
Morphine
Oxycodone
Coca
Coca leaves
Cocaine
This is just a list of the main drugs there are many more listed in the legislation.
Schedule 2
Synthetic preparations of Cannabis.
Schedule 3
Methylphenidate
LSD
TCP
Again this is just to name a few there are many more drugs in this list in the legislation
Schedule IV
Anabolic steroids
Most barbiturates
Again there are many more drugs in this list in the legislation
Schedule V
Propylhexedrine
The schedules for the precursors
Schedule 6
This will be the list of precursors in the legislation. The chemicals used to create drugs.
Schedule 7 (amounts that the legislation uses for conviction of certain offences)
Substance Amount 1. Cannabis resin 3 kg 2. Cannabis (marijuana) 3 kg
Schedule 8 (amounts that the legislation uses for conviction of certain offences)
Substance Amount 1. Cannabis resin 1 g 2. Cannabis (marijuana) 30 g
Cannabis is now legal.
The Cannabis Act creates a strict legal framework for controlling the production, distribution, sale and possession of cannabis across Canada. The Act aims to accomplish 3 goals:
keep cannabis out of the hands of youth
keep profits out of the pockets of criminals
protect public health and safety by allowing adults access to legal cannabis
What is legal as of October 17, 2018
Subject to provincial or territorial restrictions, adults who are 18 years of age or older are legally able to:
possess up to 30 grams of legal cannabis, dried or equivalent in non-dried form in public
share up to 30 grams of legal cannabis with other adults
buy dried or fresh cannabis and cannabis oil from a provincially-licensed retailer
in provinces and territories without a regulated retail framework, individuals are able to purchase cannabis online from federally-licensed producers
grow, from licensed seed or seedlings, up to 4 cannabis plants per residence for personal use
make cannabis products, such as food and drinks, at home as long as organic solvents are not used to create concentrated products
Cannabis edible products and concentrates will be legal for sale approximately one year after the Cannabis Act came into force on October 17th, 2018.
Possession limits for cannabis products
The possession limits in the Cannabis Act are based on dried cannabis. Equivalents were developed for other cannabis products to identify what their possession limit would be.
One (1) gram of dried cannabis is equal to:
5 grams of fresh cannabis
15 grams of edible product
70 grams of liquid product
0.25 grams of concentrates (solid or liquid)
1 cannabis plant seed
This means, for example, that an adult 18 years of age or older, can legally possess 150 grams of fresh cannabis.
Cannabis for medical purposes
The current regime for medical cannabis will continue to allow access to cannabis for people who have the authorization of their healthcare provider.
Protecting youth
The Cannabis Act has several measures that help prevent youth from accessing cannabis. These include both age restrictions and restricting promotion of cannabis.
Age restrictions
No person may sell or provide cannabis to any person under the age of 18. There are 2 criminal offences related to providing cannabis to youth, with maximum penalties of 14 years in jail:
giving or selling cannabis to youth
using a youth to commit a cannabis-related offence
Restricting promotion and enticement
The Cannabis Act helps discourage youth cannabis use by prohibiting:
products that are appealing to youth
packaging or labelling cannabis in a way that makes it appealing to youth
selling cannabis through self-service displays or vending machines
promoting cannabis, except in narrow circumstances where young people could not see the promotion
Penalties for violating these prohibitions include a fine of up to $5 million or 3 years in jail.
Protecting public health
The Act protects public health through creating strict safety and quality regulations. In addition, public education efforts are currently underway to raise awareness about safety measures and any potential health risks.
Strict regulation
Federal, provincial and territorial governments share responsibility for overseeing the cannabis regulation system.
The Federal government’s responsibilities are to set:
strict requirements for producers who grow and manufacture cannabis
industry-wide rules and standards, including:
types of cannabis products available for sale
packaging and labelling requirements for products
standardized serving sizes and potency
prohibitions on the use of certain ingredients
good production practices
tracking requirements of cannabis from seed to sale to keep it out of the illegal market
restrictions on promotional activities
Provinces and territories are responsible for developing, implementing, maintaining and enforcing systems to oversee the distribution and sale of cannabis. They are also able to add their own safety measures, such as:
increasing the minimum age in their province or territory (but not lowering it)
lowering the personal possession limit in their jurisdiction
creating additional rules for growing cannabis at home, such as lowering the number of plants per residence
restricting where adults can consume cannabis, such as in public or in vehicles
Be sure to check local laws in your province.
Public education
The Government of Canada has committed close to $46 million over the next five years for cannabis public education and awareness activities. These are to inform Canadians, especially youth, of the health and safety risks of cannabis consumption.
Reducing criminal activity
Statistics Canada reports that in 2017, almost 48,000 cannabis-related drug offences were reported to police. The majority of these (80%) were possession offences. A criminal record resulting from a cannabis offence, even a minor possession charge, can have serious and lifelong implications for the person charged. In allowing the production and possession of legal cannabis for adults, the Act helps keep Canadians who consume cannabis out of the criminal justice system, reducing the burden on the courts.
Criminal penalties
Cannabis offences target those acting outside of the legal framework, such as organized crime. Penalties are set in proportion to the seriousness of the offence. Sanctions range from warnings and tickets for minor offences to criminal prosecution and imprisonment for more serious offences. Some offences specifically target people who make cannabis available to youth.
Offence Penalties
Possession over the limit
tickets for small amounts
up to 5 years in jail
Illegal distribution or sale
tickets for small amounts
up to 14 years in jail
Producing cannabis beyond personal cultivation limits or with combustible solvents
tickets for small amounts
up to 14 years in jail
Taking cannabis across Canada’s borders
up to 14 years in jail
Giving or selling cannabis to a person under 18
up to 14 years in jail
Using a youth to commit a cannabis-related offence
up to 14 years in jail
Further penalties related to cannabis-impaired driving are also included in Canada’s impaired driving legislation, along with impairment rules for other drugs such as:
LSD
heroin
cocaine
psilocybin (magic mushrooms)
THE CRIMINAL OFFENCES
The offence of Possession
These offences can be treated as either indictable or summary which means a dual procedure offence. The legislation contemplate the two types of sentencing.
f treated as an indictable offence, the penalty is:
1- Schedule I: Maximum 7 years imprisonment
2- Schedule II: Maximum 5 years imprisonment
3- Schedule III: (Requires a prescription or license to legally possess.) Maximum 3 years imprisonment
4- Schedule IV: It is not an offence to possess a Schedule IV substance for personal use; however, Subsection (2) of Section (4) of the CDSA states that “no person shall seek or obtain a substance or authorization from a practitioner to obtain a substance in schedules I through IV.” unless the person discloses to the practitioner particulars relating to the acquisition by the person of every substance in those Schedules, and of every authorization to obtain such substances, from any other practitioner within the preceding thirty days. Subsection (7) then states that it is an indictable offence to contravene subsection (2). Therefore, it is an indictable offence to attempt to acquire a Schedule IV substance but not an offence for possession. Section 5 provides that possession for the purpose of trafficking of a Schedule IV substance is an offence.
If treated as a summary conviction offence, the penalty is:
Maximum $1000 fine for first offence and/or maximum 6 months imprisonment.
Maximum $2000 fine for subsequent offence and/or maximum 1 year imprisonment.
Note: For amounts not exceeding those set in Schedule VIII, maximum fine of $1000 and/or maximum 6 months imprisonment is the only punishment.
The offence of trafficking
Trafficking/Possession for the Purpose of
If tried as an indictable offence, the defendant is liable to:
Schedule I or Schedule II (exceeding amounts set in Schedule VII): Maximum life imprisonment
Mandatory minimum 1 year jail sentence for trafficking a Schedule I drug under 1 kg, 2 years if amount exceeds 2 kg
Schedule II (not exceeding amounts set in Schedule VII): Maximum 5 years imprisonment
Schedule III: Maximum 10 years imprisonment
Schedule IV: Maximum 3 years imprisonment
Or, if tried as a summary conviction, the defendant is liable to:
Schedule III: Maximum 18 months imprisonment
Schedule IV: Maximum 1 year imprisonment
Exportation/Possession for the Purpose of
If tried as an indictable offence, the defendant is liable to:
Schedule I or Schedule II: Maximum life imprisonment
Schedule III or Schedule IV: Maximum 10 years imprisonment
Schedule V or Schedule VI: Maximum 3 years imprisonment
Or, if tried as a summary conviction, the defendant is liable to:
Schedule III or Schedule IV: Maximum 18 months imprisonment
Schedule V or Schedule VI: Maximum 1 year imprisonment
Production Offences
If tried as an indictable offence, the defendant is liable to:
Schedule I or Schedule II (excluding cannabis): Maximum life imprisonment
Cannabis: Maximum 7 years imprisonment
Schedule III: Maximum 10 years imprisonment
Schedule IV: Maximum 3 years imprisonment
Or, if tried as a summary conviction, the defendant is liable to:
Schedule III: Maximum 18 months imprisonment
Schedule IV: Maximum 1 year imprisonment
The final legislation sees changes made to four areas of the CDSA, outlining mandatory minimum sentences for offences relating to the trafficking and production of various controlled substances. Mandatory minimum sentencing does not apply to simple possession and trafficking in smaller amounts.
How to defend the offence of possession
Possession offences what the crown must prove:
Possession of substance
- (1) Except as authorized under the regulations, no person shall possess a substance included in Schedule I, II or III.
Obtaining substance
(2) No person shall seek or obtain
(a) a substance included in Schedule I, II, III or IV, or
(b) an authorization to obtain a substance included in Schedule I, II, III or IV from a practitioner, unless the person discloses to the practitioner particulars relating to the acquisition by the person of every substance in those Schedules, and of every authorization to obtain such substances, from any other practitioner within the preceding thirty days.
Elements of Offence (what the crown must prove)
1- identity of accused
2- date and time of incident
3- jurisdiction (incl. region and province)
4- Possession of Substance (Knowledge, consent, control)
Substance is a Control Substance under the CDSA (certificate of analysis, chain of possession, amounts found)
5- Possession of Substance was not authorized
Trafficking a substance
Trafficking in substance
- (1) No person shall traffic 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.
Possession for purpose of trafficking
(2) No person shall, for the purpose of trafficking, possess a substance included in Schedule I, II, III or IV.
Elements of the Offence (what the crown must prove)
Along with the essential elements of time and date, identity and jurisdiction, the Crown must prove the elements of:
1- Possession of Substance (Knowledge, consent, control)
must have knowledge of the illegal nature of the substance
Substance is a Control Substance under the CDSA (certificate of analysis, chain of possession, amounts found)
2- the accused knew of (or held a belief as to) the nature of the substance
3- Possession of Substance was not authorized
4- The accused intended to traffic the Substance
