Drug charges mostly arise from four offences set out in the Controlled Drugs and Substances Act (CDSA): Possession, Trafficking (and/or possession for the purpose of trafficking), Importing & Exporting, and Production of controlled substances (i.e. drugs). The CDSA divides controlled substances into four main categories or “Schedules”. Marihuana (cannabis) is no longer included in the Schedules to the CDSA as those offences are dealt with separately in the Cannabis Act. Often with drug charges, issues surrounding infringements of the Canadian Charter of Rights and Freedoms will arise. The most prevalent of which involves violations of a person’s right to be secure against arbitrary detention (Section 9) and unreasonable search and seizure (Section 8). The validity of search warrants can also be attacked, and if a Judge deems the warrant was wrongfully issued, then any evidence seized pursuant to its execution may be ruled inadmissible at trial. In certain exceptional circumstances, Entrapment issues may also arise if police improperly procure an offence for the purpose of prosecuting it, e.g. where a police officer unduly persuades a person to sell them drugs, only to charge that person when they finally succumb to the pressure. Toronto criminal defence lawyer Daniel Freudman can effectively raise these issues to ensure your constitutional rights are protected and that you receive the best possible defence, no matter what the charge you are faced with.
Possession [C.D.S.A. s 4]
Under subsection 4(1) of the CDSA, except as authorized under the regulations, no person shall possess a substance included in Schedule I, II or III.
(a) Schedule I substances include: Opium, Cocaine, Heroin, Ecstasy, Ketamine, Methamphetamine, etc.
(b) Schedule II substances include: Certain synthetic cannabinoid products and their derivatives.
(c) Schedule III substances include: Amphetamines, LSD, etc.
The offence also occurs when you are in possession of the preparations or derivatives of the above-listed substances. Even if you only have a small amount of the substance, you may still be charged with possession, though the exact quantity will be relevant in determining the penalty if convicted.
To establish possession, the Crown must prove, beyond a reasonable doubt, that you had control over the substance, that you knew the character of the substance, and that the substance was in fact illicit under the CDSA. If the drug is found in a place that suggests you and another person both had knowledge and control of the substance, then you can both be charged jointly with possession (of that same single substance).
Potential penalty upon conviction:
(a) Possession of a Schedule I substance- (i) if Crown proceeds by indictment: maximum of 7 years jail (ii) if Crown proceeds summarily: first offence- maximum of 6 months jail and/or $1000 fine; subsequent offence(s)- maximum of 1 year jail and/or $2000 fine
(b) Possession of a Schedule II substance- (i) if Crown proceeds by indictment: maximum of 5 years less a day jail (ii) if Crown proceeds summarily: first offence- maximum of 6 months jail and/or $1000 fine; subsequent offence(s)- maximum of 1 year jail and/or $2000 fine
(c) Possession of a Schedule III substance- (i) if Crown proceeds by indictment: maximum of 3 years jail (ii) if Crown proceeds summarily: first offence- maximum of 6 months jail and/or $1000 fine; subsequent offence(s)- maximum of 1 year jail and/or $2000 fine
Trafficking, Possession for the Purpose of Trafficking [C.D.S.A. s 5]
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. Moreover, no person shall, for the purpose of trafficking, possess a substance included in Schedule I, II, III or IV. In these cases, the Crown must prove both possession as well as the intention to traffic the drugs.
The definition of “trafficking” is very broad, and can include anything from selling the substance to giving it to a friend for free. Possession for the Purpose of Trafficking occurs when you have possession of the substance with an intention to traffic it. Such intention can be inferred from the quantity of drugs, the manner in which the drugs are packaged (i.e. in individual bags for resale) and if money and paraphernalia (e.g. scales) are also found.
Potential penalty upon conviction:
(a) Trafficking, or Possession for the Purpose of Trafficking a Schedule I or Schedule II substance- (i) Crown proceeds by indictment: maximum of 25 years jail (i.e. life imprisonment)
Note: pursuant to the Safe Streets and Communities Act (2012), Mandatory Minimum Sentences apply depending on the circumstances. See Mandatory Minimum Sentences Chart for further details.
(b) Trafficking, or Possession for the Purpose of Trafficking a Schedule III substance- (i) if Crown proceeds by indictment: maximum of 10 years jail (ii) if Crown proceeds summarily: maximum of 18 months jail
(c) Trafficking, or Possession for the Purpose of Trafficking a Schedule IV substance- (i) if Crown proceeds by indictment: maximum of 3 years jail (ii) if Crown proceeds summarily: maximum of 1 year jail
Importing & Exporting, Possession for the Purpose of Exporting [C.D.S.A. s 6]
Except as authorized under the regulations, no person shall import into Canada or export from Canada a substance included in Schedule I, II, III, IV, V or VI. Moreover, except as authorized under the regulations, no person shall possess a substance included in Schedule I, II, III, IV, V or VI for the purpose of exporting it from Canada.
Potential penalty upon conviction:
(a) Importing & Exporting, or Possession for the Purpose of Exporting a Schedule I or Schedule II substance- (i) Crown proceeds by indictment: maximum of 25 years jail (i.e. life imprisonment)
Note: pursuant to the Safe Streets and Communities Act (2012), Mandatory Minimum Sentences apply depending on the circumstances. See Mandatory Minimum Sentences Chart for further details.
(b) Importing & Exporting, or Possession for the Purpose of Exporting a Schedule III or Schedule VI substance- (i) if Crown proceeds by indictment: maximum of 10 years jail (ii) if Crown proceeds summarily: maximum of 18 months jail
(c) Importing & Exporting, or Possession for the Purpose of Exporting a Schedule IV or Schedule V substance- (i) if Crown proceeds by indictment: maximum of 3 years jail (ii) if Crown proceeds summarily: maximum of 1 year jail
Production [C.D.S.A. s 7]
Except as authorized under the regulations, no person shall produce a substance included in Schedule I, II, III or IV.
The most common examples of this offence used to be marihuana “grow ops”. In many Production cases, the police investigation and drug seizure may occur in a manner which violates the Canadian Charter of Rights and Freedoms, namely Section 8 which guarantees your security against unreasonable search and seizure.
Toronto drug offences lawyer Daniel Freudman will raise these Charter issues with the intention to have the drugs excluded from evidence (i.e. the drugs would be inadmissible as evidence at trial, which may result in an acquittal or withdrawal of charges).
Potential penalty upon conviction:
(a) Production of a Schedule I or Schedule II substance OTHER THAN cannabis (marihuana)-
(i) Crown proceeds by indictment: maximum of 25 years jail (i.e. life imprisonment)
Note: pursuant to the Safe Streets and Communities Act (2012), Mandatory Minimum Sentences apply depending on the circumstances. See Mandatory Minimum Sentences Chart for further details.
(b) Production of cannabis (marihuana)-
(i) Crown proceeds by indictment: maximum of 14 years jail
Note: pursuant to the Safe Streets and Communities Act (2012), Mandatory Minimum Sentences apply depending on the circumstances. See Mandatory Minimum Sentences Chart for further details.
(c) Production of a Schedule III substance-
(i) if Crown proceeds by indictment: maximum of 10 years jail
(ii) if Crown proceeds summarily: maximum of 18 months jail
(d) Production of a Schedule IV substance-
(i) if Crown proceeds by indictment: maximum of 3 years jail
(ii) if Crown proceeds summarily: maximum of 1 year jail
The Cannabis Act
The Cannabis Act came into force on October 17, 2018. It sets out offences for possession, distribution, selling, importing, exporting, production and cultivation of the drug. There is separate provincial regulation under the Cannabis Control Act, 2017.
Possession:
The Cannabis Act prohibits the possession of:
● By an adult, in public, more than 30g of dried cannabis or the equivalent as set out in Schedule 3;
● By an adult, any amount of illicit cannabis;
● By a young person, more than 5g of dried cannabis or the equivalent as set out in Schedule 3;
● By an individual, in public, a budding or flowering cannabis plant;
● By an individual, more than four cannabis plants that are not budding or flowering; and
● By an organization, cannabis.
“Illicit cannabis” is cannabis that is sold, produced, or distributed by a person prohibited from doing so under the Cannabis Act or any provincial Act.
Schedule 3 of the Cannabis Act sets out permitted amounts for cannabis in various forms:
|
Class of Cannabis |
Quantity Equivalent to 1 Gram of Dried Cannabis |
|
Dried cannabis |
1g |
|
Fresh cannabis |
5g |
|
Solids containing cannabis |
15g |
|
Non-solids containing cannabis |
70g |
|
Cannabis solid concentrates |
0.25g |
|
Cannabis non-solid concentrate |
0.25g |
|
Cannabis plant seeds |
1 seed |
Distribution and Trafficking:
The Cannabis Act addresses the offence of distribution, which includes administering, giving, transferring, transporting, sending, delivering, providing, or otherwise making available in any manner, whether directly or indirectly, and offering to distribute.
Distribution is only prohibited in certain circumstances. An adult is prohibited from distributing:
● More than 30g of dried cannabis or the equivalent under Schedule 3;
● Cannabis to anyone under 18 years of age;
● Cannabis to an organization; or
● Illicit cannabis.
It is also prohibited for an individual to distribute one or more flowering or budding plants or more than four plants that are not flowering or budding. It is prohibited for an organization to distribute cannabis. It is prohibited for a person over 18 to cultivate, propagate, or harvest illicit cannabis or more than four cannabis plants in the person’s dwelling regardless of the number of people living there.
Furthermore, it is prohibited to sell cannabis, or a substance held out to be cannabis (i.e. a substance that is not actually cannabis but the person represents it as such), or to possess it for the purpose of sale unless otherwise authorized by the Cannabis Act or under the regulations.
Importing and Exporting:
The Cannabis Act prohibits the importation and exportation of cannabis, along with possession for the purpose of exporting, subject to limited exceptions. In other words, while marijuana / cannabis is legal in Canada, you cannot cross into or out of the country with it in your possession, except with e.g. a valid license, generally issued for medical or scientific purposes.
Offences & Penalties:
The Chart below sets out the various offences under the Cannabis Act, along with their respective penalties, depending on whether the Crown decides to proceed by way of summary conviction or indictment:
|
Offence |
Penalty |
|
Possession |
Summary - maximum 6 months and/or $5,000 - maximum $100,000 if an organization Indictable - maximum 5 years less a day - a fine at the discretion of the court if an organization |
|
Distribution (and Possession for the Purpose of Distribution) |
Summary - maximum 6 months and/or $5,000 - maximum $100,000 if an organization Indictable - maximum 14 years - a fine at the discretion of the court if an organization |
|
Distribution (and Possession for the Purpose of Distribution) to a Person Under 18 |
Summary - maximum 18 months and/or $15,000 - maximum $100,000 if an organization Indictable - maximum 14 years - a fine at the discretion of the court if an organization |
|
Selling (and Possession for the Purpose of Selling) |
Summary - maximum 6 months and/or $5,000 - maximum $100,000 if an organization Indictable - maximum 14 years |
|
Selling (and Possession for the Purpose of Selling) to a Person Under 18 |
Summary - maximum 18 months and/or $15,000 - maximum $100,000 if an organization Indictable - maximum 14 years |
|
Importing (and Possession for the Purpose of Importing) |
Summary - maximum 6 months and/or $5,000 - maximum $300,000 if an organization Indictable - maximum 14 years |
|
Production, Cultivation, etc. |
Summary - maximum 6 months and/or $5,000 - maximum $100,000 if an organization Indictable - maximum 14 years |
|
Possession for Use |
Summary - maximum 6 months and/or $15,000 - maximum $100,000 if an organization Indictable - maximum 7 years |