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Offenders and Accused Persons - Offences

Offences Related to Certain Drugs

It is after midnight and you are in a park with some friends who are drinking beer. The park is closed and consumption of alcohol is prohibited. You're not drinking...but you are rolling yourself a small joint of marijuana. Suddenly, police officers appear and see the beer bottles and your marijuana.

Your friends wind up with a ticket and are told by the police to leave the area. But you are arrested. A police officer searches you and finds some more cannabis in your pocket. After several minutes of waiting, one of the police officers gives you a summons to appear in court. You are accused of having committed a criminal offence: possession of cannabis.

In this Infosheet, Éducaloi informs you about various drug-related criminal offences as well as the sanctions a person found guilty of one of these offences might face.

What are the main prohibited drugs in Canada?

In Canada, the Controlled Drugs and Substances Act classes drugs, called “controlled substances,” into six main categories, corresponding to six schedules of the Act:

• Schedule I substances: Opium, morphine, cocaine, codeine, heroin, methadone, phencyclidine (PCP, ketamine), etc.;
  
• Schedule II substances: Cannabis (pot, marijuana), cannabis resin (hashish), etc.;
  
• Schedule III substances: Amphetamines, mescaline, ecstasy, flunitrazepam (Rohypnol), GHB, psilocybin (magic mushrooms), etc.;
  
• Schedule IV substances: Barbiturates, anabolic steroids, librium, valium, etc.;
  
• Schedule V substances: Certain chemical drugs;
  
• Schedule VI substances: Ephedrine, pseudoephedrine, lysergic acid (LSD), etc.

The Act also targets the precursors of these substances (ingredients in production), and analogous substances (those whose chemical composition is essentially the same as that of a controlled substance).

What are the main offences related to these drugs?

The main offences are:

• possession;
  
• possession for purpose of trafficking;
  
• trafficking;
  
• importing and exporting;
  
• production.

Let’s look at this a bit more closely.

What is the offence of possession of drugs?

Among the drug-related offences, first we find those relating to possession. They involve the substances enumerated in Schedules I, II and III—cannabis and cocaine, for example. To learn what the term possession means in criminal law, see the Infosheet entitled Possession in criminal law  (http://www.educaloi.qc.ca/en/loi/offenders_and_accused_persons/289/).

Contrary to popular belief, the quantity of the drug possessed has nothing to do with a person’s vulnerability to a possession charge. Even if she holds just a tiny amount of a prohibited drug, a person can still be accused of possession.

What is meant by the term drug trafficking?

Trafficking is the selling, giving, administering, transporting, sending or delivering of one of the drugs listed in Schedules I through IV. The word “selling” includes not only the sale itself, but also the display, the offer for sale, the possession for the purpose of selling and the distribution – even if for free - of one of the prohibited substances.

Along the same lines, possession for the purpose of trafficking a drug listed in Schedules I through IV is also an offence. This offence is often proven by the discovery of the drug itself, together with objects used in its sale: scales, cash, lists of people who owe money or large quantities of the drug enclosed in many small packages. A person may be accused of committing this offence when there is no direct proof of transactions or trafficking, but the circumstances clearly show that the drug is destined for this purpose.

Is importing, exporting or possession with the goal of exporting a drug also prohibited behaviour?

Yes. In the Act we also find offences of importing or exporting substances included in Schedules I through VI. It is basically a kind of trafficking with the goal of bringing an illegal substance into or out of the country. Possession of a substance for the purpose of exporting it is also an offence.

What about production of a drug?

Production of a substance enumerated in Schedules I through IV is an offence as well. Growing cannabis is a form of production. Nevertheless, it is possible to grow marijuana for medical purposes – as long as the grower has the authorization of the government. To find out more, consult the Infosheet entitled Using marijuana for therapeutic purposes  (http://www.educaloi.qc.ca/en/loi/health_care_users/15/).

What are the possible sentences in the case of conviction?

In the case of conviction, the Act does not set out a minimum sentence for drug-related offences, but the convicted person is subject to the following maximum sentences:

For possession of a substance set out in:

• Schedule I: 7 years of imprisonment;
  
• Schedule II: 5 years less a day of imprisonment. But if the amount is 30 grams or less of cannabis or 1 gram or less of cannabis resin (hashish), the maximum penalty is 6 months of imprisonment or a $1,000 fine;
  
• Schedule III: 3 years of imprisonment.

For trafficking and possession for the purpose of trafficking a substance set out in:

• Schedule I: imprisonment for life;
  
• Schedule II: imprisonment for life. However, if the quantity is 30 grams or less of cannabis or 1 gram or less of cannabis resin (hashish), the maximum sentence is 5 years less a day of imprisonment;
  
• Schedule III: 10 years of imprisonment;
  
• Schedule IV: 3 years of imprisonment.

For importing, exporting and possession with the purpose of exporting a substance set out in:

• Schedule I: imprisonment for life;
  
• Schedule II: imprisonment for life;
  
• Schedule III: 10 years of imprisonment;
  
• Schedule IV: 3 years of imprisonment;
  
• Schedule V: 3 years of imprisonment.

For production of a substance set out in:

• Schedule I: imprisonment for life;
  
• Schedule II: imprisonment for life, unless it is cannabis. The maximum sentence for production of this substance is 7 years of imprisonment;
  
• Schedule IV: 3 years of imprisonment.

What factors must the judge take into account when sentencing a person found guilty of committing a drug-related offence?

When deciding about punsishment, the judge must respect the principles for sentencing set out in the Criminal Code. To learn more on this issue, consult the Infosheets entitled Sentencing in Canada   (http://www.educaloi.qc.ca/en/loi/offenders_and_accused_persons/245/)and Possible sentences in Canada  (http://www.educaloi.qc.ca/en/loi/offenders_and_accused_persons/249/).

In addition to these principles, the judge must take into account aggravating factors which are specific to drug-related offences:

• using or carrying a weapon at the time of the offence;
  
• the threat or the use of violence at the time of the offence;
  
• the involvement of minors in committing the offence, as accomplices or as clients;
  
• committing the offence on or near the grounds of a school or near an area frequented by people under the age of 18;
  
• recidivism (committing the offence after having already been convicted for the same or a similar offence).

If a judge chooses not to give a prison sentence to a person found guilty of a drug-related offence involving any of these factors, the Act requires him to explain his decision in writing.

In addition, once a person is found guilty of a drug-related offence, the judge can order a different sentence depending on the offence committed, but also on the nature and quantity of the substance involved. For example, a person found guilty of trafficking a large quantity of cocaine can expect to receive a much more serious sentence than a person found guilty of possession of a tiny amount of cannabis.

The accused person’s reason for trafficking can also be important. For example, a person who is selling drugs in order to get enough money to satisfy his own dependence on the drug may be punished less severely than a person who is trafficking only to obtain an economic gain.

Finally, a stricter sentence is often seen as justified where the person convicted already has a criminal record.

In the case of conviction, are there other possible consequences for the convicted person?

Yes. The property linked to the offence and seized by the police can be confiscated at the time of the sentence and sold or destroyed. Examples of this property include the drug itself, but also the scales used to weigh the drug, profits related to the offence, the vehicle used to transport the drug or the irrigation and lighting systems used for growing cannabis plants.

In addition, if a person is found guilty of trafficking, of possession for the purpose of trafficking, of production or of importing or exporting substances, the judge must prohibit her from possessing weapons, ammunition or explosive substances for 10 years.