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Drug offences in Canada are considered very serious charges. There are two main categories of drug offences whereby a person can be charged with an offence. The first is possession of drugs. Under the Criminal Code Section, the Controlled Drugs and Substance Act sets out the details of what constitutes an offence. It may be difficult to understand the act and the terminology used, however essentially anyone that has possession of a controlled substance…..
What should I do If I am apprehended and I am in possession of drugs?
You have the right to immediate counsel!
If you find yourself faced with a situation where you have been apprehended with illegal drugs, the best next step you can take is to immediately consulting a lawyer prior to speaking to any authorities or providing a statement.
The Criminal Law Office of Vincent Houvardas has been advising clients on a drug related cases in Brampton for over twenty years. Mr. Houvardas has been involved in some of the most difficult and challenging cases in Brampton.
The Controlled Drug & Substances Act
When someone is charged with an possession of a drug, or the more serious crime of drug trafficking, it is important to access immediate counsel so you can be quickly advised of your rights. Also it is important to quickly put together the facts that lead to the apprehension, so that an early defence may be formulated the criminal lawyer that is representing you. it becomes a very complex situation with respect to interpreting the criminal code in relation to a specific individual’s case and circumstances. This is why it is very important that you have an experienced Criminal lawyer in Brampton working with you such as Vincent Houvardas. listed below is the first part of the Controlled Drugs and Substance Act, as well as a link to the full document.
https://laws-lois.justice.gc.ca/eng/acts/c-38.8/FullText.htm
PART I
Offences and Punishment
Particular Offences
Marginal note:Possession of substance
4 (1) Except as authorized under the regulations, no person shall possess a substance included in Schedule I, II or III.
Marginal note:Obtaining substance
(2) No person shall seek or obtain
(a) a substance included in Schedule I, II, III or IV, or
(b) an authorization to obtain a substance included in Schedule I, II, III or IV
from a practitioner, unless the person discloses to the practitioner particulars relating to the acquisition by the person of every substance in those Schedules, and of every authorization to obtain such substances, from any other practitioner within the preceding thirty days.
Marginal note:Punishment
(3) Every person who contravenes subsection (1) where the subject-matter of the offence is a substance included in Schedule I
(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding seven years; or
(b) is guilty of an offence punishable on summary conviction and liable
(i) for a first offence, to a fine not exceeding one thousand dollars or to imprisonment for a term not exceeding six months, or to both, and
(ii) for a subsequent offence, to a fine not exceeding two thousand dollars or to imprisonment for a term not exceeding one year, or to both.
Marginal note:Punishment
(4) Subject to subsection (5), every person who contravenes subsection (1) where the subject-matter of the offence is a substance included in Schedule II
(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years less a day; or
(b) is guilty of an offence punishable on summary conviction and liable
(i) for a first offence, to a fine not exceeding one thousand dollars or to imprisonment for a term not exceeding six months, or to both, and
(ii) for a subsequent offence, to a fine not exceeding two thousand dollars or to imprisonment for a term not exceeding one year, or to both.
(5) [Repealed, 2018, c. 16, s. 195]
Marginal note:Punishment
(6) Every person who contravenes subsection (1) where the subject-matter of the offence is a substance included in Schedule III
(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding three years; or
(b) is guilty of an offence punishable on summary conviction and liable
(i) for a first offence, to a fine not exceeding one thousand dollars or to imprisonment for a term not exceeding six months, or to both, and
(ii) for a subsequent offence, to a fine not exceeding two thousand dollars or to imprisonment for a term not exceeding one year, or to both.
Marginal note:Punishment
(7) Every person who contravenes subsection (2)
(a) is guilty of an indictable offence and liable
(i) to imprisonment for a term not exceeding seven years, where the subject-matter of the offence is a substance included in Schedule I,
(ii) to imprisonment for a term not exceeding five years less a day, where the subject-matter of the offence is a substance included in Schedule II,
(iii) to imprisonment for a term not exceeding three years, where the subject-matter of the offence is a substance included in Schedule III, or
(iv) to imprisonment for a term not exceeding eighteen months, where the subject-matter of the offence is a substance included in Schedule IV; or
(b) is guilty of an offence punishable on summary conviction and liable
(i) for a first offence, to a fine not exceeding one thousand dollars or to imprisonment for a term not exceeding six months, or to both, and
(ii) for a subsequent offence, to a fine not exceeding two thousand dollars or to imprisonment for a term not exceeding one year, or to both.
(8) [Repealed, 2018, c. 16, s. 195]
- 1996, c. 19, s. 4
- 2018, c. 16, s. 195
Marginal note:Definition of medical emergency
4.1 (1) For the purposes of this section, medical emergency means a physiological event induced by the introduction of a psychoactive substance into the body of a person that results in a life-threatening situation and in respect of which there are reasonable grounds to believe that the person requires emergency medical or law enforcement assistance.
Marginal note:Exemption — medical emergency
(2) No person who seeks emergency medical or law enforcement assistance because that person, or another person, is suffering from a medical emergency is to be charged or convicted of an offence under subsection 4(1) if the evidence in support of that offence was obtained or discovered as a result of that person having sought assistance or having remained at the scene.
Marginal note:Exemption — persons at the scene
(3) The exemption under subsection (2) also applies to any person, including the person suffering from the medical emergency, who is at the scene on the arrival of the emergency medical or law enforcement assistance.
Marginal note:Exemption — evidence
(4) No person who seeks emergency medical or law enforcement assistance because that person, or another person, is suffering from a medical emergency, or who is at the scene on the arrival of the assistance, is to be charged with an offence concerning a violation of any condition of a pre-trial release or probation order relating to an offence under subsection 4(1) if the evidence in support of that offence was obtained or discovered as a result of that person having sought assistance or having remained at the scene.
Marginal note:Deeming
(5) Any condition of a person’s pre-trial release, probation order, conditional sentence or parole relating to an offence under subsection 4(1) that may be violated as a result of the person seeking emergency medical or law enforcement assistance for their, or another person’s, medical emergency, or as a result of having been at the scene on the arrival of the assistance, is deemed not to be violated.
- 2017, c. 4, s. 2
- 2018, c. 16, s. 195.1
Marginal note:Trafficking in substance
5 (1) No person shall traffic in a substance included in Schedule I, II, III, IV or V or in any substance represented or held out by that person to be such a substance.
Marginal note:Possession for purpose of trafficking
(2) No person shall, for the purpose of trafficking, possess a substance included in Schedule I, II, III, IV or V.
Marginal note:Punishment
(3) Every person who contravenes subsection (1) or (2)
(a) if the subject matter of the offence is a substance included in Schedule I or II, is guilty of an indictable offence and liable to imprisonment for life, and
(i) to a minimum punishment of imprisonment for a term of one year if
(A) the person committed the offence for the benefit of, at the direction of or in association with a criminal organization, as defined in subsection 467.1(1) of the Criminal Code,
(B) the person used or threatened to use violence in committing the offence,
(C) the person carried, used or threatened to use a weapon in committing the offence, or
(D) the person was convicted of a designated substance offence, or had served a term of imprisonment for a designated substance offence, within the previous 10 years, or
(ii) to a minimum punishment of imprisonment for a term of two years if
(A) the person committed the offence in or near a school, on or near school grounds or in or near any other public place usually frequented by persons under the age of 18 years,
(B) the person committed the offence in a prison, as defined in section 2 of the Criminal Code, or on its grounds, or
(C) the person used the services of a person under the age of 18 years, or involved such a person, in committing the offence;
(a.1) [Repealed, 2018, c. 16, s. 196]
(b) if the subject matter of the offence is a substance included in Schedule III or V,
(i) is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years, or
(ii) is guilty of an offence punishable on summary conviction and liable to imprisonment for a term not exceeding eighteen months; and
(c) where the subject-matter of the offence is a substance included in Schedule IV,
(i) is guilty of an indictable offence and liable to imprisonment for a term not exceeding three years, or
(ii) is guilty of an offence punishable on summary conviction and liable to imprisonment for a term not exceeding one year.
(4) [Repealed, 2012, c. 1, s. 39]
Marginal note:Interpretation
(5) For the purposes of applying subsection (3) in respect of an offence under subsection (1), a reference to a substance included in Schedule I, II, III, IV or V includes a reference to any substance represented or held out to be a substance included in that Schedule.
(6) [Repealed, 2018, c. 16, s. 196]
- 1996, c. 19, s. 5
- 2012, c. 1, s. 39
- 2017, c. 7, s. 3
- 2018, c. 16, s. 196
Marginal note:Importing and exporting
6 (1) 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.
Marginal note:Possession for the purpose of exporting
(2) 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.
Marginal note:Punishment
(3) Every person who contravenes subsection (1) or (2)
(a) if the subject matter of the offence is a substance included in Schedule I in an amount that is not more than one kilogram, or in Schedule II, is guilty of an indictable offence and liable to imprisonment for life, and to a minimum punishment of imprisonment for a term of one year if
(i) the offence is committed for the purposes of trafficking,
(ii) the person, while committing the offence, abused a position of trust or authority, or
(iii) the person had access to an area that is restricted to authorized persons and used that access to commit the offence;
(a.1) if the subject matter of the offence is a substance included in Schedule I in an amount that is more than one kilogram, is guilty of an indictable offence and liable to imprisonment for life and to a minimum punishment of imprisonment for a term of two years;
(b) if the subject matter of the offence is a substance included in Schedule III, V or VI,
(i) is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years, or
(ii) is guilty of an offence punishable on summary conviction and liable to imprisonment for a term not exceeding eighteen months; and
(c) if the subject matter of the offence is a substance included in Schedule IV,
(i) is guilty of an indictable offence and liable to imprisonment for a term not exceeding three years, or
(ii) is guilty of an offence punishable on summary conviction and liable to imprisonment for a term not exceeding one year.
- 1996, c. 19, s. 6
- 2012, c. 1, s. 40
- 2017, c. 7, s. 4
Marginal note:Production of substance
7 (1) Except as authorized under the regulations, no person shall produce a substance included in Schedule I, II, III, IV or V.
Marginal note:Punishment
(2) Every person who contravenes subsection (1)
(a) if the subject matter of the offence is a substance included in Schedule I, is guilty of an indictable offence and liable to imprisonment for life and to a minimum punishment of imprisonment for a term of three years if any of the factors set out in subsection (3) apply and for a term of two years in any other case;
(a.1) if the subject matter of the offence is a substance included in Schedule II, is guilty of an indictable offence and liable to imprisonment for life, and to a minimum punishment of imprisonment
(i) for a term of one year if the production is for the purpose of trafficking, or
(ii) for a term of 18 months if the production is for the purpose of trafficking and any of the factors set out in subsection (3) apply;
(b) [Repealed, 2018, c. 16, s. 197]
(c) if the subject matter of the offence is a substance included in Schedule III or V,
(i) is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years, or
(ii) is guilty of an offence punishable on summary conviction and liable to imprisonment for a term not exceeding eighteen months; and
(d) where the subject-matter of the offence is a substance included in Schedule IV,
(i) is guilty of an indictable offence and liable to imprisonment for a term not exceeding three years, or
(ii) is guilty of an offence punishable on summary conviction and liable to imprisonment for a term not exceeding one year.
Marginal note:Factors
(3) The following factors must be taken into account in applying paragraphs (2)(a) and (a.1):
(a) the person used real property that belongs to a third party in committing the offence;
(b) the production constituted a potential security, health or safety hazard to persons under the age of 18 years who were in the location where the offence was committed or in the immediate area;
(c) the production constituted a potential public safety hazard in a residential area; or
(d) the person set or placed a trap, device or other thing that is likely to cause death or bodily harm to another person in the location where the offence was committed or in the immediate area, or permitted such a trap, device or other thing to remain or be placed in that location or area.
- 1996, c. 19, s. 7
- 2012, c. 1, s. 41
- 2017, c. 7, s. 5
- 2018, c. 16, s. 197
Marginal note:Possession, sale, etc., for use in production of or trafficking in substance
7.1 (1) No person shall possess, produce, sell, import or transport anything intending that it will be used
(a) to produce a controlled substance, unless the production of the controlled substance is lawfully authorized; or
(b) to traffic in a controlled substance.
Marginal note:Punishment
(2) Every person who contravenes subsection (1)
(a) if the subject matter of the offence is a substance included in Schedule I, II, III or V,
(i) is guilty of an indictable offence and liable to imprisonment for a term of not more than 10 years, or
(ii) is guilty of an offence punishable on summary conviction and liable to imprisonment for a term of not more than 18 months; and
(b) if the subject matter of the offence is a substance included in Schedule IV,
(i) is guilty of an indictable offence and liable to imprisonment for a term of not more than three years, or
(ii) is guilty of an offence punishable on summary conviction and liable to imprisonment for a term of not more than one year.
- 2011, c. 14, s. 1
- 2017, c. 7, s. 6
Notice
Marginal note:Notice
8 The court is not required to impose a minimum punishment unless it is satisfied that the offender, before entering a plea, was notified of the possible imposition of a minimum punishment for the offence in question and of the Attorney General’s intention to prove any factors in relation to the offence that would lead to the imposition of a minimum punishment.
- 2012, c. 1, s. 42
Report to Parliament
Marginal note:Review
9 (1) Within five years after this section comes into force, a comprehensive review of the provisions and operation of this Act, including a cost-benefit analysis of mandatory minimum sentences, shall be undertaken by any committee of the Senate, of the House of Commons or of both Houses of Parliament that may be designated or established for that purpose.
Marginal note:Report
(2) The committee referred to in subsection (1) shall, within one year after a review is undertaken under that subsection, submit a report to Parliament including a statement of any changes that the committee recommends.
- 2012, c. 1, s. 42
Sentencing
Marginal note:Purpose of sentencing
10 (1) Without restricting the generality of the Criminal Code, the fundamental purpose of any sentence for an offence under this Part is to contribute to the respect for the law and the maintenance of a just, peaceful and safe society while encouraging rehabilitation, and treatment in appropriate circumstances, of offenders and acknowledging the harm done to victims and to the community.
Marginal note:Factors to take into consideration
(2) If a person is convicted of a designated substance offence for which the court is not required to impose a minimum punishment, the court imposing sentence on the person shall consider any relevant aggravating factors including that the person
(a) in relation to the commission of the offence,
(i) carried, used or threatened to use a weapon,
(ii) used or threatened to use violence,
(iii) trafficked in a substance included in Schedule I, II, III, IV or V, or possessed such a substance for the purpose of trafficking, in or near a school, on or near school grounds or in or near any other public place usually frequented by persons under the age of 18 years, or
(iv) trafficked in a substance included in Schedule I, II, III, IV or V, or possessed such a substance for the purpose of trafficking, to a person under the age of 18 years;
(b) was previously convicted of a designated substance offence, as defined in subsection 2(1) of this Act, or a designated offence, as defined in subsection 2(1) of the Cannabis Act;
(c) used the services of a person under the age of eighteen years to commit, or involved such a person in the commission of, the offence.
Marginal note:Reasons
(3) If, under subsection (1), the court is satisfied of the existence of one or more of the aggravating factors enumerated in paragraphs (2)(a) to (c), but decides not to sentence the person to imprisonment, the court shall give reasons for that decision.
Marginal note:Drug treatment court program
(4) A court sentencing a person who is convicted of an offence under this Part may delay sentencing to enable the offender
(a) to participate in a drug treatment court program approved by the Attorney General; or
(b) to attend a treatment program under subsection 720(2) of the Criminal Code.
Marginal note:Minimum punishment
(5) If the offender successfully completes a program under subsection (4), the court is not required to impose the minimum punishment for the offence for which the person was convicted.
- 1996, c. 19, s. 10
- 1999, c. 5, s. 49
- 2012, c. 1, s. 43
- 2017, c. 7, s. 7
- 2018, c. 16, s. 198
