There are a four main types of drug charges in Canada: drug possession, production, trafficking, and importing/exporting. These offences are governed by the Controlled Drugs and Substances Act (CDSA). The CDSA outlines drug offences and their punishment, as well as which substances are illegal.
Possession is found in section 4 of the CDSA. Possession is a very particular charge, as it must be demonstrated that you had knowledge and control over the drug.
Production is found in section 7 of the CDSA. It involves manufacturing, synthetizing, cultivating, or harvesting the illegal substance.
Trafficking is found in section 5 of the CDSA. You can be charged with trafficking itself or possession for the purpose of trafficking. Trafficking involves selling, giving, transporting, and even delivering the illegal substance.
Importing and exporting is found in section 6 of the CDSA. Importing and exporting means that you are transporting the illegal substance into and out of the country. You do not need to smuggle the drugs yourself to be charged with this offence; it is sufficient that you ask someone to do it.
Types of situations that can result in drug charges
The most straightforward situation in which you can be charged with a drug trafficking offence is if you are using the drug and an officer sees you. Or, if you are a ‘drug mule’ (i.e., smuggling drugs) crossing the border, and you are caught.
It is not as straightforward if you, for example, take your brother’s backpack to use for the day, and you are later stopped by police and a bag of cocaine is found hidden in the bag. It needs to be demonstrated that you had knowledge of the substance. Or, what if an illegal substance is found in your house, and you share that house with several people? In this situation, it would need to be shown that you had knowledge and control as well as consented to the substance being in the house.
Additionally, if you are selling a more innocent substance, like oregano or sugar, but you are pretending it is something more illicit, you can still be charged with trafficking, because you held that substance out as being an illegal drug.
What are different sentences for drug charges?
Drug charges are treated seriously in Canada. Under the Controlled Drugs and Substances Act, sentences range depending on the type of drug, the actual offence, and whether the matter is proceeding summarily or by indictment. The court, however, has the discretion to impose a sentence between the minimum and maximum penalties outlined in the CDSA.
For Schedule I, II, and III drugs, the penalty upon summary conviction is the same: You may face a fine not exceeding $1000 or a maximum imprisonment of six months, or both. The fine and maximum term increases for second and subsequent offences.
If proceeding by indictment, you could face a maximum sentence of three to seven years, depending on the drug.
For Schedule I and II drugs, you could be liable for life in prison and a minimum of at least two years for Schedule I and one year for Schedule II.
For Schedule III, IV, and V drugs, the sentences vary according to whether the Crown proceeds summarily or by indictment. There is no mandatory minimum punishment.
For Schedule I and II drugs, you could face life in prison. There are also mandatory minimum terms, the length of which depends on the presence of specific circumstances. For example, if you used violence while trafficking the drug, then there is a mandatory minimum of one year.
For Schedule III and V drugs, you could face a sentence of up to 18 months if the Crown proceeds summarily or up to 10 years if by indictment.
For Schedule IV drugs, there is a potential sentence of up to one year in prison if the Crown proceeds summarily or a maximum sentence of three years if by indictment.
Importing and exporting
For Schedule I and II drugs, there is a maximum sentence of life in prison, and the minimum sentence is determined by factors outlined in the CDSA.
For drugs in the other Schedules, the maximum terms depend on whether the Crown is proceeding summarily or by indictment. There is no mandatory minimum.
Cannabis Act – What is supposed to be legal?
The government of Canada legalized marijuana in 2018. The Cannabis Act amended the Controlled Drugs and Substances Act to regulate the sale and possession of cannabis in Canada. It allows cannabis to be sold (only) by authorized provincial retailers. Adults can possess up to 30 grams of dried cannabis in public. According to section 8(1)(a) of the Act, it is an offence to possess more than that. In addition, you can possess up to four cannabis plants in your home. Importantly, section 8(1)(b) of the Act also states that it is an offence to possess cannabis known to be illicit. That means that you can only possess cannabis that is bought through a cannabis store approved by the province. If you are growing cannabis, the seeds or cuttings cannot be from an illicit source either.
It is also important to remember that operating a motor vehicle while under the influence of marijuana is treated the same by the law and the judicial system as impairment by alcohol. While both substances are legal, being impaired by any substance while driving is treated very harshly by the criminal justice process. In fact, Statistics Canada reported an increase in drug-impaired driving incidents in 2018.
As one can see, although the possession of marijuana is technically legal, there are still a number of restrictions you must abide by. According to Statistics Canada, there were 181 incidents of possession of illicit cannabis or over 30 grams of dried cannabis that were caught in Ontario in 2019. There were 1,868 incidents of the importation and exportation of cannabis.
Statistics of drug charges in Canada
Even prior to legalization, marijuana possession charges were decreasing according to Statistics Canada, and importation and exportation charges were increasing. That being said, in 2018, possession of cannabis was still the most prevalent drug offence; but it is important to note that the Cannabis Act was only implemented halfway through the year.
That year, possession of methamphetamine was the second most popular drug offence. In fact, possession, production, and importation and exportation of methamphetamine increased. Possession was up 10% and trafficking, production, and importing and exporting were up 23%.
One must recognize that what these statistics really represent is where law enforcement chooses to put its resources when it comes to drug crimes. With the legalization of marijuana and this upward trajectory of methamphetamine-related offences, it is safe to say that this trend in enforcement will continue.
What should you do first?
In August 2020, the Public Prosecution Service of Canada (PPSC), which deals with the prosecution of drug charges across the country, released a directive which discourages the prosecution of simple possession charges. This directive states that prosecutors should focus on the most serious cases that raise public safety concerns and look for alternatives to divert simple possession cases out of the justice system. To be clear, this directive does not mean that you cannot or will not be charged for simple drug possession; the police have just as much discretion as they did before to charge you. This directive simply means that federal prosecutors now have more latitude to decide how your case proceeds.
Drug charges and convictions can have a significant impact on your employment and your ability to travel. Your first step should always be to consult a criminal lawyer. They can ensure that the prosecution respects this new directive, and they can help you successfully beat the charges. From beginning to end, having a lawyer by your side puts your rights at the forefront throughout the judicial process.
For more information on drug charges, please contact our team.