10 Facts About Sentencing in Drug Cases
Being convicted of an offence under the Controlled Drugs and Substances Act (CDSA) can have serious consequences in terms of sentencing by the courts, international travel, employment and in society generally. This article is intended as an aid for people both before and after their sentencing so that they are aware of what those consequences are. The information here is not specific legal advice. If you have specific questions about your situation then speak to a criminal lawyer.
1. Drug Prosecutors Are Unlike Other Prosecutors
Most criminal offences in Canada are prosecuted by the local provincial Crown Attorney`s office. Drug prosecutions, however, are prosecuted by the Public Prosecutions Services of Canada. This means that drug prosecutors typically have more specialized experience in drug cases.
2. The Purpose and Principles of Sentencing in Drug Cases is Different From Other Criminal Offences
Section 10 of the CDSA outlines the differences between sentencing under the Criminal Code of Canada and sentencing under the CDSA. Subsection (1) outlines the fundamental purpose of sentencing under the CDSA, it reads:
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.
This sub-section is different from the purpose and principles of sentencing found under section 718 the Criminal Code, which reads,
The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:
(a) To denounce unlawful conduct;
(b) To deter the offender and other persons from committing offences;
(c) To separate offenders from society, where necessary;
(d) To assist in rehabilitating offenders;
(e) To provide reparations for harm done to victims or to the community; and
(f) To promote a sence of responsibility in offenders, and acknowledgment of the harm done to victims and to the community.
3. Drug Cases Have Their Own Unique Aggravating Factors
There are aggravating factors which are enumerated in subsection 10(2) of the CDSA. The aggravating factors are:
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,
(b) was previously convicted of a designated substance offence; or
(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 or IV 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 eighteen years, or
(iv) trafficked in a substance included in Schedule I, II, III or IV, or possessed such a substance for the purpose of trafficking, to a person under the age of eighteen years;
(c) used the services of a person under the age of eighteen years to commit, or involved such a person in the commission of, a designated substance offence.
If a court chooses to avoid a sentence of imprisonment, and these aggravating factors are present then the CDSA requires that a court provide reasons for that decision.
4. Flexibility in Sentencing
There are several sentences available to judges. They include:
(a) An absolute discharge,
(b) A conditional discharge,
(c) A suspended sentence (probation),
(d) A fine, or
(e) Imprisonment (jail).
As mentioned above, however, there are many circumstances where the imposition of a sanction other than imprisonment requires reasons from the judge. Also, as you will see in the table below, there are several offences which carry mandatory minimum penalties of imprisonment.
5. Not All Trafficking is Treated the Same
Trafficking carries different principles and factors than possession offences under the CDSA. Courts generally distinguish between three levels of seriousness for trafficking.
i. Social sharing,
ii. Petty retail operation, and
iii. Full-time commercial operation.
Where the offender is not addicted to the substance in question, courts generally consider him or her not worthy of sympathy. Sympathy is given, however, generally, where the offences were committed in support of an addiction.
Where there is trafficking in relation to a commercial operation, denunciation and deterrence are the paramount focus of the court.
Proof of these aggravating factors is the same as any element of an offence, beyond a reasonable doubt. Types of evidence used to establish a commercial operation are, amount and value of the drugs, method of obtaining the drugs and the method of dealing.
Other factors include:
- The offender’s level in the drug dealing organization,
- The number of transactions,
- Prior record of the offender,
- Amount of planning and deliberation (whether or not the trafficking was on an impulse or part of a plan, and
- Whether there was trafficking of other drugs at the same time.
6. The Drugs Involved Matter
Different types of drug offences have different penalties. Many CDSA offences have new mandatory minimums. The following chart is intended to assist you in understanding what those penalties may be. (These penalties are accurate at the time of publication but may change in the future).
|Offence||CDSA Section||Type of offence||Minimum Penalty||Maximum Penalty|
|Possession of marijuana (less than 30 grams) or hashish (less than one gram)||4(5)||Summary||None||six months imprisonment or $1000 fine|
|Possession of Schedule III substance (eg. mushrooms)||4(6)||Hybrid||None||If summary, six months imprisonment or $1000 fine for a first offence, one year or a $2000 fine for subsequent offences.If indictable, three years.|
|Possession of Schedule II substance (eg. marijuana or hashish)||4(4)||Hybrid||None||If summary, six months imprisonment or $1000 fine for a first offence, one year or a $2000 fine for subsequent offences.If indictable, five years.|
|Posession of Schedule I substance (eg cocaine or heroin)||4(3)||Hybrid||None||If summary, six months imprisonment or $1000 fine for a first offence, one year or a $2000 fine for subsequent offences.If indictable, seven years.|
|Trafficking in marijuana (less than 30 grams) or hashish (less than one gram)||5(4)||Indictable||None||Five years.|
|Trafficking in Schedule IV||5(3)(c)||Hybrid||None||If summary, one year or a $5000 fine.If indictable, three years|
|Trafficking in Schedule III||5(3)(b)||Hybrid||None||If summary, 18 months or a $5000 fine.If indictable, 10 years|
|Trafficking in Schedule I or II||5(3)(a)||Indictable||One year if as part of a criminal organization, it involved a weapon or violence, or has a prior CDSA conviction within the last 10 years.Two years if committed near a place frequented by persons under the age of 18, in a prison, or used the services of a person under the age of 18 years in committing the offence.||Life|
|Importing / Exporting Schedule IV||6(3)(c)||Hybrid||None||If summary, one year or a $5000 fine.If indictable, three years|
|Importing / Exporting Schedule III||6(3)(b)||Hybrid||None||If summary, 18 months or a $5000 fineIf Indictable, 10 years.|
|Importing / Exporting Schedule I or II (not marijuana)||6(3)(a)||Indictable||One year if for the purpose of trafficking, the offender abused a position of trust, or if the offender had access to a restricted area. Two years if more than one kilogram.||Life|
|Production of Schedule IV||7(2)(d)||Hybrid||None||If summary, one year or a $5000 fine.If indictable, three years|
|Production of Schedule III||7(2)(c)||Hybrid||None||If summary, 18 months or a $5000 fineIf Indictable, 10 years.|
|Production of marijuana||7(2)(b)||Indictable||Six months if five-200 plants unless the property used belonged to a tird party, endangered persons under 18 years of age, public safety hazard in residential area, or trap used, if so,nine months.One year for 201-500 plants unless above factors, otherwise18 months.Two years if more than 500 plants unless above factors, otherwise three years.||14 years|
|Production of Schedule I||7(2)(a)||Indictable||Two years unless there are the factors listed, otherwise, three years.||Life|
7. Drug Treatment Court
Many jurisdictions in Ontario have, what they call drug treatment court. You will need a lawyer to help you fill out the application for drug treatment court. The court will only accept accused’s persons who are willing to plead guilty, be subject to monitoring and whose drug charges arose out of addiction. If you successfully complete drug treatment court, you are guaranteed not to be sentenced to imprisonment.
8. There May Be Consequences for International Travel
While a drug conviction ought to have no effect on travel within Canada, there may be consequences for international travel. Every country has their own eligibility criteria for entry. In many countries, a drug conviction may render a person inadmissible. If you are sentenced on a drug offence, and want to travel to the United States of America, it is advisable to apply for a travel waiver in advance so that you are not detained and possibly turned back at the border.
9. There May Be Consequences for Immigration to Canada
There may be immigration consequences for non-Canadians. Foreign nationals and permanent residents who have engaged in “serious criminality” are not admissible into Canada.
In Section 36(1) of the Immigration and Refugee Protection Act defines “serious criminality”. It reads:
36. (1) A permanent resident or a foreign national is inadmissible on grounds of serious criminality for
(a) having been convicted in Canada of an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years, or of an offence under an Act of Parliament for which a term of imprisonment of more than six months has been imposed;
(b) having been convicted of an offence outside Canada that, if committed in Canada, would constitute an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years; or
(c) committing an act outside Canada that is an offence in the place where it was committed and that, if committed in Canada, would constitute an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years.
Many (but not all) drug convictions can be a ground for inadmissibility to Canada.
10. Criminal Records Last Longer
Record suspensions (formerly pardons) are more difficult to obtain and the waiting periods are longer than before. Now, the waiting period is five years after the completion of the sentence for a summary conviction offence and 10 years for an indictable offence.
As noted above, having a record for a drug conviction has serious consequences in terms of sentencing by the courts, travel, immigration, employment and social stigma. The recent amendments to the CDSA make imprisonment far more likely for offenders and make a record suspension far more difficult for offenders to obtain. It is for this reason that getting a qualified, experienced, diligent criminal lawyer who can help you defend a charge at the outset is recommended.