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DRUG DEFENCE LAWYERS

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Frequently Asked Questions

Drug Offences in Canada

When dealing with drug related offences or laws, we look to the Controlled Drugs and Substances Act instead of the Criminal Code. Particular offences are listed under Part 1 of the Act. For example, section 4(1) states, except as authorized under the regulations, no person shall possess a substance included in Schedule I, II or III. These Schedules are included within the Act and list certain drugs such as opium, codeine, morphine, etc. This acts as a way to classify substances based on their potential for harm and abuse. It should also be noted that subsection 4(2) indicates that no person shall seek or obtain the foregoing drugs either.

Further, section 5 ensures that (1) no person traffics a substance from the Schedules listed in the Act, and (2) that no person possess a substance for the purpose of trafficking. Accordingly, neither is the importing nor exporting of substances listed within the Schedules, allowed under the Act. To note, an offence related to the importing and exporting, or illegal drugs is an indictable offence. Lastly, drug related offences fall under the jurisdiction of the Public Prosecution Service of Canada, which consists of federal Crowns who are obligated to provide evidence about an offender’s offence to their lawyers, regardless of whether the evidence will be used by the Crown in court.

What are the Penalties for Drug Offences?

Penalties related to drug offences can be found in the Act. For example, if an individual contravenes section 4(1) listed above (possession of illegal drugs), where the subject matter of the offence is a substance on Schedule I, they are guilty of a hybrid offence.

Where the Crown elects to proceed by indictment, the accused will face imprisonment for a maximum of seven years. If the Crown proceeds by summary conviction, the accused will face a maximum fine of one thousand dollars, or imprisonment for a maximum of six months, or to both for a first-time offence. For a second or subsequent offence, an accused will face a fine not exceeding two thousand dollars or imprisonment for a maximum of one year, or both.

Under section 4(7), every person who seeks or obtains a substance included in Schedule I, II, III or IV is guilty of an indictable offence. They may be guilty of an offence punishable on summary conviction (subsection (b)), if for example, it is a first offence. The punishments of course get stricter with trafficking, where under section 5(3) an individual may be guilty of an indictable offence and liable to imprisonment for life. This punishment is replicated when an individual tries to import or export a substance included in Schedule I, II, III, IV, V or VI.

Stages of the Criminal Justice System

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Can I be Charged with a Drug Offence for Marijuana?

The Canadian government legalized and regulated access to cannabis on October 17, 2018. This meant that under federal legislation, adults could possess up to 30 grams of legally-produced cannabis and could grow up to four cannabis plants per household. This change also regulated the age for purchasing (18 years of age), however, each province has the authority to change the age requirement. An important distinction here is that the licensed production of cannabis is controlled by the federal government, but the sale and distribution is controlled by the provincial government.

Despite the legalization/regulation of marijuana, an individual can still be charged with a drug offence for marijuana. Under section 8 of the Cannabis Act, it is prohibited for an individual to possess more than 30 grams of dried cannabis or cannabis that they know is illicit. It is also prohibited for an organization to possess cannabis. The punishment for this, under section 8(2) is being guilty of an indictable offence with imprisonment for a term of not more than five years less a day (if over the age of 18). Youth are sentenced under the Youth Criminal Justice Act.

What Quantity of Drugs must an Accused have to be Charged with Trafficking?

Under the Act “traffic” means to sell, administer, give, transfer, transport, send or deliver the substance, (b) to sell an authorization to obtain the substance, or (c) to offer to do anything mentioned in paragraph (a) or (b). As noted above, trafficking of substances listed in Schedules I to V is prohibited, and punishable as an indictable offence with liability of imprisonment for life.

Once an individual is charged with a trafficking offence, the quantity of drugs may become an aggravating factor in the case. The larger the quantity of drugs, the more aggravating it will be.

Consequences of a Criminal Record

How to Defend a Drug Charge

Defending a drug related charge will depend on which drug offence the accused has been charged with. For example, the defence to a possession charge will be quite different than the defence to an importing charge. The defence will need to be tailored to the specific case and the specific facts. Of course this will require hiring a criminal lawyer to assist with the matter.

Generally speaking, especially for importing or trafficking drug charges, there is no defence. One could possibly argue that authorities have the wrong person or that they had no knowledge of the drugs or the intent to traffic. Other than this, the main argument would be to launch a challenge under the Canadian Charter of Rights and Freedoms (a “Charter Challenge”). This basically allows individuals to challenge the actions of the government that they believe to violate their rights or freedoms. If an individual can prove that the police violated their rights, and the violation was serious, the remedy is often to exclude any evidence discovered as a result of the charter violation. An example of this would be if police did not have a warrant to search, but still do, and find drugs. Thus the accused could launch a section 8 Charter Challenge, which considers unreasonable search or seizure.

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Recent Cases

R. v. Campbell, 2022 ONCA 666

In the Ontario Court of Appeal case of R. v. Campbell, the accused was arrested via a police strategy utilizing an ongoing arrest of a drug dealer. Police were originally in the course of arresting a known drug dealer when his phone indicated an active transaction. Pretending to be the drug dealer, police had the accused deliver drugs, which led to his arrest and being found guilty of trafficking fentanyl. A section 8 Charter argument was made.

At trial, the trial judge dismissed the Charter motion, concluding that there were exigent circumstances that justified the warrantless use of the phone. This meant the search was justified based on the circumstances and did not warrant an exclusion of the evidence. The accused appealed this. The appellant submits that the trial judge erred in his analysis of the privacy issues at stake in this case (at para 30). The court reasoned that “it is clear…that the trial judge was focused on public safety It was open to the trial judge to accept the evidence of the officers that they believed that, had this drug transaction already in progress not been rerouted in the manner they chose, the appellant would have aborted the operation” (at para 83). Meaning the decision to accept the evidence was not unreasonable. In conclusion, the appellant’s rights under s. 8 of the Charter were not violated.

R. v. McGinn, 2023 ONSC 951

In the Ontario Superior Court of Justice case of R. v. McGinn, the applicant applied under s. 520 of the Criminal Code for a review of his detention order. Amongst other offences, he was charged under the Controlled Drugs and Substances Act, involving substances such as methamphetamines, cocaine and heroin. Court stated, “[h]er Worship was of the view that, based on the information before her, it was clear that “a breach is not only likely, but inevitable” regardless of the identity of the surety” (at para 6).

To come to this conclusion, the Court considered the applicant’s criminal history. His record began back in 2006 as a youth and his adult record in 2010, with convictions every one to two years. The court noted six convictions alone for breaching a probation order. With the application at hand, it is being asserted that a new, reliable and better surety will be responsible. However, further facts about the surety contradict this. The court concluded by dismissing the application and focusing on the drug related offences and criminal history of the applicant. “I am not satisfied that the release plan comes anywhere close to being strong enough given the high risk of reoffence and find it appropriate to continue to detain the applicant on the secondary ground” (at para 16).

R. v. Le, 2022 ONCJ 465

In the Ontario Court of Justice case of R. v. Le, the police located and arrested individuals who without lawful authority, cultivated, propagated and harvested cannabis plants, in excess to the allowed amount. This is contrary to subsection 12(9) of the Cannabis Act. “The property in question was licensed to grow 1752 marijuana plants. The authorization for this amount was the combined total of four separate licenses. The governing authorities approved a legal, large scale, cannabis grow operation on this property” (para 6).

The concern was that police seized 500 plants that were over the amount the individual licences allowed for growing. This led to the arrest of the individuals who were on the property. However, the court discussed how there was no evidence linking the three individuals to the owners of the property or the licence holders in any way other than them physically being present and working. “They were not involved, in any way, in this enterprise other than as manual labourers. They had no knowledge about the licensing requirements, the limitations on the number of legally permissible plants nor that there was an excess number of plants” (para 11).

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About the Author

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Jordan Donich

Jordan Donich has been a Lawyer for over 10 years and is a trusted legal analyst by Canadian Media. He is as a leader in Canada’s tech sector for lawyers and developer of Law Newbie. Jordan is a Black Belt with the Japan Karate Association and trained in Krav Maga. He won a Gold Medal at 2004 Canadian National Championships and was published in the National Newspaper Awards.

Jordan has been featured in Forbes and is a member of DMZ Angels in Toronto.