DRUG OFFENCES

While the administration of the general criminal law, codified in the Criminal Code of Canada, falls under provincial jurisdiction, the prosecution of drug offences falls under federal jurisdiction.

Provincially appointed Crown attorneys prosecute general criminal law crimes while federally appointed lawyers prosecute drug offences.  In certain prosecutions, usually when a person is charged with drug and non-drug offences (e.g. the classic “guns and drugs” case), the federal prosecutor may delegate the prosecution of drug offences to a provincial crown attorney, or vice versa. In some situations, a person charged with both types of crimes may face prosecution by both provincially and federally appointed lawyers in the same proceedings.

The Controlled Drugs and Substances Act (CDSA)  is the primary federal Act which regulates the use of known plant and chemically based substances. The CDSA categorizes substances in  Schedules 1 to 4 and 6 to the Act, with different punishments applicable depending on the schedule categorization.

The offences defined by the CDSA with respect to controlled substances are (simple) possession, trafficking, possession for the purpose of trafficking, and importing/exporting. Punishment for CDSA violations can be severe—up to life in prison for trafficking substances in Schedules 1 and 2, and importing or exporting substances listed in Schedules 1 to 4 and 6.

A major legislative change  occurred in 2018 with the legalization of cannabis products. On October 17, 2018, the Parliament of Canada enacted the Cannabis Act, SC 2018 c. 16, which legalized but strictly regulated the production, distribution, sale, import, export and possession of cannabis. Provisions of Schedule 2 of the CDSA, dealing with cannabis,  were repealed.

Sentences for violation of the Cannabis Act can be significant, for example, up to 14 years jail for unauthorized distribution (Section 9(5)(a)(i)).

On August 1, 2019, Bill C-93, An Act to provide no-cost, expedited record suspensions for simple possession of cannabis, came into force. This legislation waives record suspension application wait periods and application fees for those convicted only of simple possession of cannabis under the old CDSA provisions.

In response to the federal legalization of cannabis products, provinces and territories passed supplementary legislation for the purpose of protecting public health and safety, restricting the availability of cannabis products to young persons and establishing a retail sales structure for the cultivation and distribution of cannabis products.

In Ontario, this legislation is the Cannabis Control Act (CCA). The enforcement of the CCA has been controversial. Subsection 12 of the Act grants expansive powers to police officers to search vehicles and its occupants when they have reasonable grounds to suspect unsealed cannabis products are “readily available” to the driver.  These search powers are open to abuse.

One academic has commented:

  • The Cannabis Control Act (CCA) gives the police a cover for pretextual searches: searches unrelated to preventing impaired driving based on hunches about more serious criminal activity. Racialized people are disproportionately subjected to such searches. The legislation may appear to be purely regulatory on its face; but in the social context in which we live, its regulatory nature belies the ability it gives police to over-reach. We need to prevent impaired driving; but not at the expense of racialized groups. Proper limits on police search powers can ensure safe streets while at the same time respecting equality rights.
    • The Constitutionality of Police Search Powers in Provincial Cannabis Control Legislation, Mayeda, 2021 69 C.L.Q. 351

David Bayliss and Luka Rados are experienced in the defence of drug prosecutions and charges premised on the violation of rights against unlawful search and seizure, including such abuses arising out of the CCA.   See the article on CCA search violations.