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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. (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. (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

Please note: The information provided on this website is Not Legal Advice. The information may or may not be accurate. The information is for discussion purposes only. Reliance upon any information provided would not be grounds to advance a claim against Merchant Law for providing any advice. In order to get a formal legal opinion upon which you may rely about any specific fact scenario, you would have to first retain the services of a lawyer and request a formal legal opinion.