Serious drug offences in Ontario always have severe consequences. Meanwhile, the adoption of the Safe Streets and Communities Act in 2012 has made these consequences even worse by introducing mandatory minimum sentences. For the moment, judges have to impose mandatory minimum sentences for crimes foreseen by the Act automatically without the right to reduce such sentences, no matter the unique circumstances of each individual case.
The mandatory minimum penalties for drug offences are triggered by the presence of aggravating factors listed in the Act. The list comprises three groups of such factors, including involvement in organized crime, using violence, targeting youth, and infringing security, health or safety.
The new legislation focuses on drugs listed in Schedule I and Schedule II of the Controlled Drugs and Substances Act (CDSA). The amended Schedule I includes cocaine, heroin, methamphetamine, and other most dangerous heavy drugs.
It also includes several other substances that were moved from Schedule III before the amendment, including ecstasy, GHB, and rohypnol, also known as date-rape drug. Schedule II includes cannabis in quantities above the legal limit as well as cannabis derivatives.
Below is the list of drug offences where the mandatory minimum penalties apply, the list of aggravating factors for each type of drug offence and a detailed chart with the mandatory minimum penalties for each of these offences.
Drug Offences Where Mandatory Minimum Penalties Apply
The mandatory minimum penalties apply to the following types of drug-related offences:
- production of drugs,
- drug trafficking,
- drug possession for the purpose of trafficking,
- Importing and exporting and possession for exporting.
Drug Production
The mandatory minimum sentence for the production of Schedule I substances includes two or three years in prison depending on the presence of health and safety hazards (see the chart below). Meanwhile, the production of more than five marijuana plants is punishable by a mandatory minimum sentence between six months and three years, depending on the quantity of plants.
Trafficking
Drug trafficking includes much more than just selling drugs for profit. This offence encompasses many other activities aimed to share the drug. In the CDSA Act, trafficking is defined as:
(a) selling, administering, giving, transferring, transporting, sending or delivering the substance,
(b) selling authorization to obtain the substance,
(c) offering to do anything mentioned in paragraphs (a) and (b) above.
Those found guilty of trafficking drugs can face imprisonment for life. There is also a mandatory minimum sentence for trafficking drugs that includes 1 or 2 years in prison, depending on the aggravating factor.
Possession for the Purpose of Trafficking
This offence happens when someone has physical control over the drug for the purpose of trafficking. According to the CDSA Act, the penalty for drug possession for the purpose of trafficking is the same as for trafficking, including the mandatory minimum sentences.
Importing and Exporting and Possession for Exporting
According to Section 6(V) of the CDSA Act, it is a criminal offence to import or export Schedule I-VI substances into and out of Canada. The possession of drugs for the purpose of exporting is punishable similarly to the offence of importing/exporting.
The mandatory minimum sentence for importing and exporting drugs or possession for the same purpose is 1 year for both Schedule I and Schedule II drugs. The sentence is increased up to 2 years if the quantity of the Schedule I substance is more than 1 kg.
Aggravating Factors
The aggravating factors triggering mandatory minimum sentences for drug offences in Canada include the (i) quantity of controlled substances and (ii) other circumstances, divided into 3 groups.
The first two groups are referred to as Lists A and List B. List A of aggravating factors include drug-related offences committed:
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for the benefit of a criminal organization or at the direction or in association with such an organization,
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involving the use of violence or threat of violence,
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involving weapons or threat or their use,
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by individuals who have been convicted of a serious drug offence anytime in the past ten years,
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by abusing authority or position or by abusing access to a restricted area.
List B focuses on youth and correctional institutions and includes crimes committed:
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in or near schools or in an area frequented by youth,
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using the services of persons under 18 years of age,
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in relation to youth,
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in prison.
The last group of triggers for applying mandatory minimum sentences in relation to drug offences include situations where the production of drugs created security, health and safety hazards. These include the production of Schedule I and Schedule II drugs where:
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the offence is committed using third party real estate,
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the production of controlled substances constitutes a potential security, health or safety hazard to children, who were in the vicinity of the production area,
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the production created a potential public safety hazard,
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the accused placed or set a trap.
Mandatory Minimum Drug Sentences Chart
The system for applying mandatory minimum drug sentences in Canada is quite extensive. It is summarized in the Deskbook of the Public Prosecution Service of Canada in the form of the following charts:
Chart 1 – Drugs listed in Schedule I (“heavy drugs” including cocaine, heroin, methamphetamine, etc.), as well as drugs, moved from Schedule III, including ecstasy, GHB and rohypnol.
| Offence | Mandatory Minimum Sentence | Notes | |||
|
| w/ | w/ | w/ | ||
| Production | 2 Years | n/a | n/a | 3 Years | |
| Trafficking |
| 1 Year | 2 Years | n/a | |
| Possession for the Purpose of Trafficking |
| 1 Year | 2 Years | n/a | |
| Importing | 1 Year 2 YEARS | n/a | n/a | n/a | 1 year for Schedule I under 1 kg if
|
| Possession For the Purpose of Exporting | 1 Year 2 YEARS | n/a | n/a | n/a | 1 year for Schedule I under 1 kg if
|
Chart 2 – Schedule II drugs (cannabis marihuana) and derivative products
| Offence | Mandatory Minimum Sentence | Notes | |||
|
| w/ | w/ | w/ | ||
| Trafficking |
| 1 Year | 2 Years | n/a | Offence would have to involve more than 3 kg of cannabis marihuana or cannabis resin |
| Possession for the Purpose of Trafficking |
| 1 Year | 2 Years | n/a | Offence would have to involve more than 3 kg of cannabis marihuana or cannabis resin |
| Importing Exporting | 1 Year | n/a | n/a | n/a | One year for Schedule II if
|
| Possession for the Purpose of Exporting | 1 Year | n/a | n/a | n/a | One year for Schedule II if
|
| Production of 6 – 200 plants | 6 Mos | n/a | n/a | 9 Mos | Offence is committed for the purpose of trafficking. Maximum penalty will be increased to 14 years imprisonment |
| Production of 201 – 500 plants | 1 Year | n/a | n/a | 18 Mos | Maximum penalty will be increased to 14 years imprisonment |
| Production of over 500 plants | 2 Years | n/a | n/a | 3 Years | Maximum penalty will be increased to 14 years imprisonment |
| Production of substances in schedule II other than marihuana (i.e. resin/oil) | 1 Year | n/a | n/a | 18 Mos | If offence is committed for the purpose of trafficking. |
When You Should Speak to a Lawyer
Drug-related offences, including production, trafficking and possession for the purpose of trafficking and drug import and export, are considered serious crimes and trigger mandatory minimum sentences. If you find yourself accused of any of these crimes, it is absolutely necessary to speak to a lawyer as early as possible to build a strong defence.
Experienced drug lawyers at Vilkhov Law will help you navigate the criminal justice system, represent you at every stage of the process, access all evidence against you, and build a strong defence strategy. Contact our team today for more information about how we can help.
