Import or Export of Drugs

What constitutes the offence of import or export of drugs?

In Canada, drug-related offences such as the trafficking or the import and export of drugs do not fall under the Criminal Code. They are dealt with under the Controlled Drugs and Substances Act (CDSA) and are pursued by the Federal Crown and not the Provincial Crown. Under CDSA, the drugs involved in the offence are classified into different schedules based on the harmful and addictive nature of the substance. The penalties will be severe for any offence involving a Schedule I drug.

Import or export of drugs:

Section 6 (1) of the Controlled Drugs and Substances Act defines the offence as the unauthorized import into Canada or export from Canada of any of the scheduled drugs mentioned under the Act.

Possession for the purpose of exporting:

Section 6 (2) of the CDSA defines this offence as the unauthorized possession of any of the scheduled drugs for the purpose of exporting them from Canada.

What are the legal penalties for the import or export of drugs?

Indictable offence in case of Schedule I & II drugs:

The Crown treats the offence of the import or export of any of the Schedule I & II drugs as an indictable offence as per the provisions of CDSA.

Hybrid Offence:

Apart from Schedule I & II, the import or export of any other scheduled drugs is treated as a hybrid offence. This means that, depending on the nature of the offence, aggravating factors, and the criminal record of the accused, the Crown will decide whether to pursue the case as an indictable offence or a summary conviction.

Schedule I:

Harmful drugs like cocaine, heroin, opium, fentanyl, oxycodone, methamphetamine, morphine, and amphetamines fall under Schedule I.

• Import or export:A minimum mandatory sentence of 1 year for the import/export of any of the Schedule I drugs below the weight of 1 kg and a minimum of 2 years for the import/export of any of the Schedule I drugs above 1 kg in weight.
• Possession for the purpose of exporting: A minimum mandatory sentence of 1 year for any of the Schedule I drugs below the weight of 1 kg and a minimum of 2 years for any of the Schedule I drugs above 1 kg in weight.

Schedule II:

Drugs that are considered less harmful than Schedule I, such as cannabis, marijuana, cannabis resin, and cannabis oil, fall under Schedule II.

• Import or export: A minimum mandatory sentence of 1 year for the import/export of the drug.
• Possession for the purpose of exporting: A minimum mandatory sentence of 1 year.

The maximum sentence for the offence under CDSA, especially for Schedule I & II drugs with aggravating factors, is a life sentence.

How do the aggravating factors affect the penalties in a drug offence?

Aggravating factors are those aspects associated with the offence that will prompt the Crown to opt for the maximum legal penalty applicable. For drug offences, the following categories of aggravating factors are issued as guidelines for the Crown to follow on a case-by-case basis:

List A Aggravating Factors:

• The accused committed the offence on behalf of a criminal organization.
• The threat of violence or use of weapons accompanied the drug offence.
• The accused has a recent drug-related conviction within the last ten years.
• The accused used his position of authority to gain access to a restricted area to facilitate the import or export of drugs.

List B Aggravating Factors:

• The accused committed the offence in or near a school or a similar facility frequented by children or minors.
• The offence was committed in a prison.
• The offence was committed by employing a minor, or the drug was sold to a minor.

Health and Safety Factors:

• The accused used the property belonging to a third party to facilitate the offence.
• The production of the drug put the health, safety, or security of the minors in that area at risk.
• The production of the drug put the safety of the public in a residential area at risk.
• The accused set up traps or devices in the location, putting the public at risk of bodily harm or even death.

How will the Crown try to prove the drug charges in court?

As with any other criminal case, the burden of proof is on the Crown to establish the charges against the accused in court.

• The Crown must establish in court that there is conclusive evidence to prove that a scheduled drug was found in the possession of the accused.
• There is enough evidence to show that the accused intended to sell, distribute, or transport the illegal substance across the Canadian border.
• The accused was well aware of the illegal nature of the substance.
• The guilt of the accused is established beyond a reasonable doubt.

How can our criminal defence lawyer help you?

The aggravating factors mentioned above could prompt the Crown to seek the maximum legal penalty of life imprisonment upon conviction. This is why it is crucial to have an experienced criminal defence lawyer fighting in your corner from the very beginning. A knowledgeable lawyer will look for the following aspects in your case to build a strong legal defence.

Charter rights violations:

Canadian law treats the accused as innocent until proven guilty and entitles them to a just trial and a fair legal process. The law enforcement officials are expected to respect the accused’s Charter Rights throughout the legal process. These rights include:

• The right to remain silent.
• The right to be informed of the charges.
• The right to retain and instruct counsel without delay.
• The right to be free from arbitrary detention.

Your lawyer will ensure that any evidence obtained through the violation of any of the Charter Rights is disqualified from trial.

Weak or insufficient evidence:

Your lawyer will look for any weaknesses or inconsistencies in the Crown’s evidence and, if necessary, conduct investigations on their own to determine the facts of the case. This will help them prepare a strong defence in their client’s favour.

The threshold of reasonable doubt:

As mentioned above, the Crown must establish the guilt of the accused in court beyond a reasonable doubt. If the Crown fails to meet this threshold of proof in the case, the accused is likely to be acquitted on technical grounds.