IMPORTING CHARGES IN NIAGARA
Canadian Border Service Agents have the right to search your laptop and/or smart phone at the border without a warrant. According to the Customs Act of 1985 Canadian Service Border Agents have the power to search any person (s.98(1)(a)-(c)) or goods (s.99(1)(a)) traveling over the Canadian border. This power extends both to persons and goods coming in to and leaving Canada. A foreign nationals refusal to unlock password protected devices will likely lead to the individual being denied entry into Canada. Though Canadian Border Service Agents cannot turn away Canadian citizens or permanent residents who are attempting to re-enter Canada, they do have the power to confiscate your device if you refuse to allow it to be searched. The process of retrieving your device from the Border Service Agents after it has been confiscated can be a lengthy process.
In addition to being searched at the border without a warrant, Canada Border Services Agency (CBSA) officers also have the power to search, without a warrant, any individual who has entered a “customs-controlled areas. Customs controlled areas are designated zones within a border crossing area or airport where domestic employees, travelers leaving Canada and arriving international travelers may interact. Travelers inside customs controlled areas will be subject to questioning prior to leaving the area, and may have their belongings searched. Individuals may be searched by Canada Border Services Agency officers inside this area as well.
Whether or not an individual will be searched will depend on a number of factors. Canada Border Service Agency officers are trained to spot suspicious looking travelers. In some cases, the location the individual is traveling from or the length of time they were outside of Canada will raise suspicions. Officers may choose to search any individual choose, without reason. Alternatively, travelers may be randomly selected for additional inspection. These additional inspections are often referred to as “secondary inspections”. In these situations, CBSA agents will search all of the traveler’s belongings, including their vehicle if they are driving over a land border.
Since Canadian Border Service Agents do not need a warrant to search people or goods entering or exiting Canadian borders, anything they subsequently discover on your person or in your possession will likely be used against you should criminal charges be laid. As such, if Canadian Border Service Agents have searched one of your devices and discovered incriminating material it is advisable for you to contact qualified legal counsel immediately. Our Firm can help you navigate the charges against you, explain all of your options and help you resolve your case with the best possible outcome. We frequently defend allegations associated with importing Child Pornography, Firearms, Fraudulent Instruments and Drugs in St. Catharines.
Having a complete understanding of the Elements of the Criminal Offence, Your Rights and the Consequences associated with a Criminal Record is necessary before any legal decisions are made.
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Legal Information
Frequently Asked Questions
What is Importing Drugs into Canada?
What is the Punishment for Importing Drugs or Illegal Substances into Canada?
What is Importing Firearms into Canada?
Who is Authorized to Import a Firearm into Canada?
What is Distribution of Child Pornography
What does Importing or Exporting Child Pornography Refer to?
Is it Illegal to Import Child Pornography into Canada?
Can you be charged for travelling with illegal Pornography?
Additional Resources
Assault
Assaulting a Peace Officer
Children’s Aid Society
Sexual Assault Law in Canada
Consequences of a Criminal Record
Domestic Abuse
First Offenders
Immigration Consequences
Keeping Charges Private
Travel & US Waivers
Vulnerable Sector Screening
Elements of a Crime
Your Rights
Importing Drugs into Canada
Importing drugs into Canada is one of the most serious drug related crimes an offender can be charged with. The Controlled Drugs and Substance Act 1996 stipulates that it is a criminal offence to import a wide variety of drugs across Canadian borders. Section 6(1) of the Controlled Drugs and Substance Act states the following:
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.
Schedules I through VI outline a lengthy list of different drugs and substances that cannot be imported into Canada unless authorization is given from some government agency. Some examples of drugs listed in those schedules include: marijuana, cocaine, crack cocaine, heroin and any other opioid product, methamphetamines and barbiturates. The schedules also list various prescription drugs and chemical agents that may or may not be used to manufacture drugs.
What is the Punishment for Importing Drugs or Illegal Substances into Canada?
The punishment you may receive after being found guilty of importing drugs or illegal substances into Canada will depend on the type and quantity of the drug or substance you have imported. In cases where the defendant has imported a substance included in Schedule I (some examples include; opioid or poppy products, coca products, methamphetamine, amphetamines and fentanyl products) in the amount of less than one kilogram, or a substance included in Schedule II (cannabis and other related compounds) the defendant is guilty of an indictable offence. These offences are punishable by a minimum of one year imprisonment and a maximum of life imprisonment if one of three conditions are met. These conditions are as follows: (1) the offence was committed for the purposes of trafficking, (2) the defendant, while committing the offence abused a position of power or authority or (3) the defendant had access to a restricted area accessed only by authorized persons and used that access to commit the offence. In cases where the defendant has imported a drug or substance from Schedule I in an amount more than one kilogram, they are guilty of an indictable offence that is punishable by a minimum of two years’ imprisonment and a maximum of life imprisonment. In cases where the defendant imported a drug or substance from Schedule III, V or VI they are guilty of a hybrid offence. If the Crown proceeds by indictment they will subject to a sentence of imprisonment not exceeding ten years. If the Crown chooses to proceed summarily the defendant will be liable for a term of imprisonment not exceeding two years less a day imprisonment. Finally, in cases where the defendant is guilty of importing a drug or substance from Schedule IV they will be guilty of a hybrid offence. If the Crown chooses to proceed on indictment the defendant could serve a maximum of three years imprisonment and if the Crown proceeds summarily the defendant could serve a term not exceeding one year imprisonment.
Importing Firearms into Canada
It is a criminal offence to import a firearm into Canada without being authorized by the Firearms Act 1995 or any other act of Parliament. There are two types of offences under the Criminal Code which relate to the importation of firearms into Canada. Section 103(1) of the Criminal Code discusses the importation of unauthorized firearms into Canada when the accused is aware that they are not authorized for such importation. Section 104(1) of the Criminal Code outlines the offence of unauthorized importation of a firearm into Canada. Section 104 makes no mention of the accused’s knowledge that they were unauthorized to import the firearm into Canada.
Section 103(1) Importing or Exporting Knowing it is Unauthorized
Section 103(1) of the Criminal Code states that it is a criminal offence for an individual to import or export a prohibited firearm, a restricted firearm, a non-restricted firearm, a prohibited weapon, a restricted weapon, a prohibited device or any prohibited ammunition, or any component or part that is designed exclusively for the use or manufacture of an automatic firearm, knowing that they are not authorized to do so either by the Firearms Act or another act of Parliament. An individual found guilty of violating section 103(1)(a) will be guilty of an indictable offence and will be liable for a minimum term of imprisonment of three years on the first offence and five years on the second offence and not exceeding ten years imprisonment. In all other situations as listed under s. 103(1)(b) including importing components used to manufacture automatic firearms, the punishment will be a minimum of one year imprisonment and a maximum of ten years imprisonment.
Section 104(1) Unauthorized Importing or Exporting
Section 104(1) of the Criminal Code states that it is a criminal offence to import or export a prohibited firearm, a restricted firearm, a non-restricted firearm, a prohibited weapon, a restricted weapon, a prohibited device or any prohibited ammunition, or component that is designed exclusively for manufacture of an automatic firearm without authorization from the Firearms Act or any other act of Parliament. The main difference between section 103(1) and 104(1) is whether or not the defendant had knowledge that they were not authorized to import or export their firearm, ammunition or component. Unauthorized importing or exporting is a hybrid offence meaning the Crown will decide on how to proceed. If the Crown decides to proceed by indictment the penalty will be a term of imprisonment not exceeding five years. Should the Crown proceed summarily, the maximum penalty will be two years less a day imprisonment and/or a $5,000 fine.
Who is Authorized to Import a Firearm into Canada?
As outlined in the Firearms Act 1995 there are various ways an individual can be authorized to import a firearm into Canada. According to section 19(2.1)(e) of the Firearms Act; “Subject to subsection (2.3), an individual who holds a licence authorizing the individual to possess prohibited firearms or restricted firearms must, if the licence is renewed, be authorized to transport them within the individual’s province of residence, (e) to a port of exit in order to take them outside Canada, and from a port of entry”. This means individuals who hold the necessary licensing to transport their restricted firearms to and from a port of entry in Canada are authorized to do so. Additionally, according to section 35(1) a non-resident of Canada who holds no licence or permit in Canada, may import a non-prohibited firearm, if at the time of importation they are at least eighteen years of age, they declare the firearm to the Canadian customs officer at the port of entry including a written declaration containing all prescribed information and in cases involving restricted firearms, they produce the necessary authorization for transportation of the restricted firearm. The Canadian customs officer must be satisfied with the accuracy of the information provided by the traveler before the traveller will be permitted to import their firearm.
Importing based offences are very serious and can have a significant impact on many aspects of your life. If you have been charged with an importing type offence our Firm can help you navigate the legal system and achieve the best outcome in your criminal matter.
Distribution of Child Pornography
Section 163.1 of the Criminal Code outlines criminal offences relating to child pornography, and specifically s. 163.1(3) outlines the charge of “Distribution, etc. of child pornography” as follows:
Distribution, etc. of child pornography
163.1(3) Every person who transmits, makes available, distributes, sells, advertises, imports, exports or possesses for the purpose of transmission, making available, distribution, sale, advertising or exportation any child pornography is guilty of an indictable offence and liable to imprisonment for a term of not more than 14 years and to a minimum punishment of imprisonment for a term of one year.
As outlined above, distribution can refer to many different actions that may be taken with child pornography including distributing child pornography, possessing child pornography for the purpose of distributing it or importing and/or exporting child pornography. One does not have to physically distribute the material to be charged with distribution of child pornography. Rather, the individual simply must have possessed it for the purpose of eventually distributing it to some third party. Importing and/or exporting may also constitute distribution of child pornography, even in situations where the individual has not shared the material with a third party.
What does Importing or Exporting Child Pornography Refer to?
Importing or exporting child pornography refers to situations where an individual has transferred child pornography over an international border. For example, if an individual mailed child pornography over an international border or traveled over an international border with child pornography in their possession, they would be guilty of importing child pornography into the country they had entered.
Is it Illegal to Import Child Pornography into Canada?
Yes. According to section 163.1(3) of the Criminal Code, every person who imports or exports child pornography is guilty of an indictable offence. Importing and/or exporting child pornography is considered distributing child pornography in Canada and is a very serious charge that can have significant implications on an offenders life. If convicted of distributing child pornography an offender may be sentenced to a minimum of one year imprisonment and a maximum of fourteen years imprisonment.
Is it Considered Distribution of Child Pornography if I traveled over an International Border with Child Pornography that was not Intended to be Viewed by any Third Parties?
Yes. It does not matter that the child pornography you imported or exported over a Canadian border was not meant for others to view. The fact that you traveled over the border while in possession of the pornography means you are guilty of distributing child pornography.
Quick Facts
Can my Phone be Searched at the Border?
Under the Customs Act, Canadian Service Border Agents have broad based powers which include the ability to search electronic devices. Some of these items can include a smart phone or laptop computer.
What if I Refuse to allow my Electronics to be Searched?
If you refuse to allow yourself to be legally searched, a foreign national could be refused entry. If you are a Citizen or Permanent Resident, your property may be confiscated and later searched with a Warrant.
What types of Importing Offences are There?
There are many types of crimes committed at the border. Most people think of importing Drugs alone, however, there are other offences related to Firearms, Financial Instruments and even Child Pornography.
What is the Punishment for Importing Offences?
The Punishment depends on what is being illegally important. Firearms have strict penalties with minimum jail sentences. Even items not considered guns in the U.S., such as pistol frames, can still be considered firearms in Canada. Other offences such as false financial documents and importing child pornography are also often punished by jail sentences
