What are the sentences for drug charges?
There are two significant variables the court considers when passing sentences if you are convicted of drug offences: the nature of the narcotic and the amount you were found in your possession. If you had more than the equivalent of 30 grams of dried marijuana – the legal limit in Canada – but not enough to be considered to be a trafficker, you are probably looking at a fine. But if you were caught with a substantial amount of a harder drug, such as cocaine, heroin or fentanyl, the Crown will be seeking a jail sentence.
What is the Controlled Drugs and Substances Act?
Drug sentencing in Canada is directed by the Controlled Drug and Substances Act (CDSA). This federal legislation regulates the possession, production and sale of controlled substances, along with the use of any precursors or materials that can be used in the manufacture of illegal drugs.
Section 95 of the Act sets out nine Schedules that all illegal drugs and substances fall into, with the first four the most important.
Schedule I includes hard street drugs, such as heroin, cocaine and opium as well as pharmaceutical drugs such as oxycodone and morphine.
Schedule II drugs are those that fall within the cannabis family, such as hashish. While the possession of marijuana is now legal in Canada, there are limits on how much you can carry and in what manner, with the rules set by each province. For example in Quebec, a 19-year-old can buy cannabis at a licensed retailer and legally have it in their pockets as they drive around. But as soon as they cross the border into Ontario, they could be charged with improperly transporting the drug.
Schedule III drugs are the amphetamine family such as lysergic acid diethylamide, better known by its street name of LSD and psilocybin (magic mushrooms).
Schedule IV includes popular pharmaceuticals such as diazepam, benzodiazepine and anabolic steroids.
Sentences for Schedule I drugs
You are not legally allowed to have any amount of a Schedule I, II or III drug in Canada unless it is to be used for medical, scientific or industrial purposes. Because Schedule I includes hard street drugs, the judicial system hands down the harshest penalties for their possession, and even harsher sentences for trafficking or exporting them. These will vary depending on how much of the drug you possessed and if there were any aggravating factors involved.
If you are charged with possession of a Schedule I drug, the Crown can treat your charge either as a summary conviction or as an indictable offence. If you are found guilty on summary conviction, you face a maximum fine of $1,000, imprisonment up to six months or both.
If your possession charge is treated by the Crown as an indictable offence, the maximum prison term increases to seven years. If you possess the drug for the purpose of trafficking or exporting, possible penalties include life imprisonment.
Sentences for Schedule II drug convictions
If you are found guilty on summary conviction, you face a maximum fine of $1,000, imprisonment up to six months or both. For a subsequent offence, the maximum fine increases to $2,000 while the maximum imprisonment cannot exceed one year, or both. If your possession charge is handed as an indictable offence, the maximum prison term increases to seven years. And if you possess the drug for the purpose of trafficking or exporting, possible penalties include life imprisonment.
Sentences for Schedule III and IV drug convictions
If treated as a summary conviction, a Schedule III drug possession charge could be punished by a $1,000 fine, a jail term of six months or both. If treated as an indictable offence, the maximum sentence is 18 months behind bars.
If you are caught with a Schedule IV drug, the jail term cannot exceed one year on summary conviction or three years with indictable offences.
What is a mandatory minimum sentence?
The Criminal Code gives the Crown the option of seeking a mandatory minimum penalty (MMP) for serious crimes, including drug offences related to the trafficking, importing and exporting of some drugs. That could change in coming years, as Bill C-22 is debated by Parliament. If passed, it would repeal MMPs for 14 offences, including the six that relate to the CDSA.
Unless and until those changes are enacted, the Crown has the option of seeking a one-year MMP if any of these aggravating factors can be proven in your drug charge:
- That the possession benefitted or was directed by a criminal organization.
- There was the use or threat of violence, or of weapons.
- You were previously convicted of a substance offence charge or were imprisoned for one within the previous 10 years.
- That you abused a position of authority or access to a restricted area to commit the offence.
Two-year MMPs can be given if any of these aggravating factors are present:
- You were near school grounds or in an area frequented by persons under 18.
- You were in a prison.
- You used the services of someone under 18,
- You involved a youth in your crime.
Federal government eyes new drug strategy
While proposing to eliminate six drug-related MMPs, Bill C-22 also contains measures to encourage police and prosecutors to treat drug possession as a health issue instead of a criminal issue, according to this Department of Justice statement.
“Existing sentencing policies have focused on punishment through imprisonment, and they disproportionately affect Indigenous peoples, as well as Black and marginalized Canadians,” it reads. “MMPs have also resulted in longer and more complex trials and a decrease in guilty pleas, which has compounded the impact for victims, who are more often required to testify.”
A news article notes that “Bill C-22 tells police and prosecutors that courts are better used for crimes that endanger the public than for the simple possession of illegal drugs … substance abuse is primarily a health and social issue … criminalizing drug use harms individuals and communities.”
Circumstances always matter
When I meet with a client charged with a drug offence I want to hear the details of their arrest. Perhaps a group of people shared a house. If police search the residence and find drugs, they all could be charged with possession as the officers will assume they were all aware of the illegal substances.
In some cases, maybe the housemates did not socialize with each other and the person with the drugs kept them hidden from the others. In that circumstance, we could argue that the others should not be convicted of possession
I represented a client who said he acted as a go-between between a trafficker and an addict. When that addict overdosed and died, he was charged with trafficking as he supplied the drugs. The Crown wanted jail time since his actions resulted in a death. I was unable to avoid having him incarcerated after evidence emerged that he was more of a trafficker than just an innocent go-between, but this was another example of where the sentence reflected the particular circumstances of a case.
What the Crown must prove to win a conviction
With any drug charge, the Crown must prove you were in possession of the illegal substance. In many cases that means the drugs were found on your person, your car or home. However, the term “possession” is much broader than that, as it simply means that you had some control and knowledge of the illegal substance.
Even if the drug was in someone else’s home or a neutral location such as a storeroom, you could be charged with possession if the Crown can show you knew it was there and had some measure of control over it. The Crown also must prove the substance is listed in the CDSA and that you knew about its illegal nature. If there is a large amount of hard drugs involved, you could end up going to jail on a first offence.
Experienced defence counsel makes a difference
Canada is slowly relaxing some laws related to drug possession, but proposed changes may not help those currently facing charges. A drug-related conviction can result in a significant fine, jail time or both. Perhaps more importantly, it could adversely affect your ability to secure employment.
Don’t take that chance. Call me for a free consultation, in French or English. Every case is unique and every person who is charged deserves the best defence possible.