Changes in Canada’s drug laws and mandatory minimums come into force November 6, 2012.

Canada Drug Laws Coming Into Force TodayCanadian Drug Laws Coming into forceUnknown to many Canadians, the Conservative government’s amendments to Canada’s drug laws come into effect today, November 6, 2012. It is surprising how little coverage there is in the media considering how drastic the charges are. Most significantly is the imposition of mandatory minimum sentences for a number of offences including trafficking, possession for the purpose of trafficking (not including marijuana under 3 kg.), importing / exporting, and production.

What’s the significance of the changes in Canada’s drug laws?

How significant are the sentences and changes? The first thing in understanding the changes is to appreciate how the mandatory minimum sentences are imposed. Generally speaking, the minimum applies whenever there is an “aggravating factor” or where the production of the substance constitutes a “potential security, health or safety hazard”.

The aggravating factors involve offences committed:

  • for the benefit of organized crime;
  • involving use or threat of violence;
  • involving use or threat of use of weapons;
  • by someone who has been previously convicted (in the past 10 years) of a serious drug offence;
  • in a prison;
  • by abusing a position of authority or access to restricted areas;
  • in or near a school, in or near an area normally frequented by youth or in the presence of youth;
  • through involving a youth in the commission of the offence; and,
  • in relation to a youth (e.g. selling to a youth).

The security, health and safety factors are:

  • the accused used real property that belongs to a third party to commit the offence;
  • the production constituted a potential security, health or safety hazard to children who were in the location where the offence was committed or in the immediate area;
  • the production constituted a potential public safety hazard in a residential area; and
  • the accused placed or set a trap.

As one can see from the list above, there is a very wide range of latitude in interpretation as to what sort of factual scenarios these factors might include and thereby trigger the new provisions of mandatory incarceration. One obvious point of controversy would be the factor: “in or near a school, in or near an area normally frequented by youth or in the presence of youth”. One might ask, does this include selling drugs in the summer time when school is out at 11:00 p.m.? Seemingly yes. Similarly, it would also include any place “frequented by youths” that includes almost any place one can imagine as a matter of public space such as parks, mall parking lots, abandoned baseball diamonds, etc. Many lawyers, including myself, expect challenges to legislation for being void for vagueness and/or over breadth.

Mandatory Minimum Sentences for Drugs

The Department of Justice has indicated on their website that the Bill would amend the Controlled Drugs and Substances Act to include mandatory prison terms for drugs listed in Schedule I, such as heroin, cocaine and methamphetamine, and in Schedule II, such as marijuana. Generally, the minimum sentence would apply where there is an aggravating factor, including where the production of the drug constituted a potential security, health or safety hazard. Also, the maximum penalty for production of Schedule II drugs, e.g., marijuana, would be increased from 7 to 14 years.

Here are the respective schedules for greater clarification:

ANNEX A: New Mandatory Minimum Penalties for Serious Drug Offences Schedule I drugs (cocaine, heroin, methamphetamine, etc.) 

OFFENCE MANDATORY MINIMUM PENALTY NOTES
  w/Aggravating FactorList  A1 w/ Aggravating Factor List B2 w/ Health and Safety Factors3
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 Exporting 1 YEAR n/a n/a n/a Offence is committed for the purpose of trafficking
2 YEARS(if more than 1 kg of Schedule 1 substances)
Possession For the Purpose of Exporting 1 YEAR n/a n/a n/a Offence is committed for the purpose of trafficking
2 YEARS(if more than 1 kg of Schedule 1 substances)

 

 New Mandatory Minimum Penalties for Serious Drug Offences Schedule II drugs (cannabis and marijuana)

 

OFFENCE MANDATORY MINIMUM PENALTY   NOTES
  w/Aggravating Factors- List A1 w/Aggravating Factor – List B2 w/Health and Safety Factors3
Trafficking 1 YEAR 2 YEARS n/a Offence would have to involve more than 3 kg of cannabis marijuana 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 marijuana or cannabis resin
ImportingExporting 1 YEAR n/a n/a n/a Offence is committed for the purpose of trafficking
Possession for the Purpose of Exporting 1 YEAR n/a n/a n/a Offence is committed for the purpose of trafficking
Production –6 – 200 plants  6 MOS n/a n/a 9 MOS Offence is committed for the purpose of trafficking.Maximum sentence will be increased to 14 years imprisonment
Production –201 – 500 plants 1 YEAR n/a n/a 18 MOS Maximum sentence will be increased to 14 years imprisonment
Production – more than 500 plants 2 YEARS n/a n/a 3 YEARS Maximum penalty will be increased to 14 years imprisonment
Production –oil or resin 1 YEAR n/a n/a 18 MOS Offence is committed for the purpose of trafficking

 

 

 

 

By | 2016-10-24T11:59:19+00:00 November 6th, 2012|
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