Drug Trafficking, Schedule I (Sentencing)

From Criminal Law Notebook
This page was last substantively updated or reviewed January 2023. (Rev. # 95037)


Drug Trafficking, Schedule I
s. 5(1), (2) of the Controlled Drugs and Substances Act
Election / Plea
Crown Election Indictment
Jurisdiction Prov. Court

Sup. Court w/ Jury (*)
Sup. Court w/ Judge-alone (*)

* Must be indictable. Preliminary inquiry also available.
Indictable Dispositions
Avail. Disp. Discharge (730)

Suspended Sentence (731(1)(a))
Fine (734)
Fine + Probation (731(1)(b))
Jail (718.3, 787)
Jail + Probation (731(1)(b))
Jail + Fine (734)

Conditional Sentence (742.1)
Minimum None
Maximum Life
Reference
Offence Elements
Sentence Digests

Overview

See Drug Trafficking (Offence)

Legislation

Trafficking in substance

5 (1) No person shall traffic in a substance included in Schedule I [opiates and related], II [cannaboids], III [psychedelics], IV [barbiturates] or V [repealed] or in any substance represented or held out by that person to be such a substance.

Possession for purpose of trafficking

(2) No person shall, for the purpose of trafficking, possess a substance included in Schedule I [opiates and related], II [cannaboids], III [psychedelics], IV [barbiturates] or V [repealed].

Punishment

(3) Every person who contravenes subsection (1) [trafficking in controlled substances] or (2) [possession of controlled substances for purpose of trafficking]

(a) if the subject matter of the offence is a substance included in Schedule I [opiates and related] or II [cannaboids], is guilty of an indictable offence and liable to imprisonment for life;
(a.1) [Repealed, 2018, c. 16, s. 196]
(b) if the subject matter of the offence is a substance included in Schedule III [psychedelics] or V [repealed],
(i) is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years, or
(ii) is guilty of an offence punishable on summary conviction and liable to imprisonment for a term not exceeding eighteen months; and
(c) where the subject-matter of the offence is a substance included in Schedule IV [barbiturates],
(i) is guilty of an indictable offence and liable to imprisonment for a term not exceeding three years, or
(ii) is guilty of an offence punishable on summary conviction and liable to imprisonment for a term not exceeding one year.

(4) [Repealed, 2012, c. 1, s. 39]

Interpretation

(5) For the purposes of applying subsection (3) [trafficking in substance – punishment] in respect of an offence under subsection (1) [trafficking in controlled substances], a reference to a substance included in Schedule I [opiates and related], II [cannaboids], III [psychedelics], IV [barbiturates] or V [repealed] includes a reference to any substance represented or held out to be a substance included in that Schedule.

(6) [Repealed, 2018, c. 16, s. 196]

1996, c. 19, s. 5; 2012, c. 1, s. 39; 2017, c. 7, s. 3; 2018, c. 16, s. 196; 2022, c. 15, s. 15.


[annotation(s) added]

– Template:CDSASec2

Note up: 5(1), (2), (3), and (5)

Sentencing Principles and Ranges

For General Sentencing Principles for all drug offences, see Sentencing for Drug Offences
Maximum Penalties

Offences under s. 5(3)(a) are straight indictable. The maximum penalty is life incarceration.


Available Dispositions
Offence(s) Crown
Election		 Discharge
s. 730		 Suspended
Sentence
s. 731(1)(a)		 Stand-alone
Fine
s. 731(1)(b)		 Custody
s. 718.3, 787		 Custody and
Probation
s. 731(1)(b)		 Custody and
Fine
s. 734		 Conditional
Sentence (CSO)
s. 742.1
s. 5(3)(a) N/A

Offences under s. 5(3)(a) [with aggravating factors] have mandatory minimums. There are no discharges, suspended sentences, stand-alone fines, or conditional sentences available.

Consecutive Sentences

There are no statutory requirements that the sentences be consecutive.

Principles

Gravity

There is a distinction made in law between hard drugs (such as cocaine) and soft drugs (such as marijuana).[1]

The societal costs of drug abuse and trafficking are significant.[2] They include the effects on health care, lost productivity and financial loss due to enforcement.

Many courts have spoken to the societal harm of drug trafficking.[3] Trafficking and use of cocaine has a close connection with violent crime.[4]

Schedule I drugs, including cocaine, heroin, and methamphetamines, are "highly addictive and inflict great harm on individuals and society. Trafficking in these drugs is rightly considered a serious offence."[5]

When dealing with Schedule I drugs including cocaine, the emphasis must be on dedication and general deterrence.[6]

The destructive nature of methamphetamines “mirror those of two other hard drugs, heroin and cocaine”.[7]

MDMA/Ecstacy

This drug is usually in pill or capsule form, not powder.[8]

MDMA is a "dangerous drug that can be toxic and cause long-term central nervous disorders."[9]

Other characteristics of MDMA include:[10]

  1. It is a drug frequently used by young people at large crowded dance parties called "raves" and is used to postpone fatigue and allow the user to dance for hours and have feelings of euphoria;
  2. It's most consistent physiological effect is the induction of hypothermia [the elevation of the core body temperature] that can lead to heat stroke, and in some reported cases, death. This effect is exacerbated in the rave setting;
  3. Ecstasy is referred to as a "designer drug" because it is a combination of synthetic substances to create a "blend of amphetamine-like and mescaline-like effects;"
  4. Ecstasy can be produced by those who have working knowledge of organic chemistry and is usually sold in a tablet form. Because it can be produced so easily, one of the dangers is that the actual composition of ecstasy tablets can vary greatly and the user cannot know what is being consumed;
  5. Ecstasy can be toxic and slow to leave the system and has been known to cause liver damage, serious irregularities of heart rhythm, elevated blood pressure, swelling of the brain leading to convulsions and long-term central nervous system effects such as depression, paranoia and panic disorders;
  6. There is no conclusive evidence that ecstasy is addictive;
  7. In addition, expert evidence tendered during the appeal hearing by a senior police officer confirmed that ecstasy is not connected with other crimes that are often committed to obtain funds to fuel addictions, such as robbery and break and enters.
Fentanyl

Fentanyl is considered one of the "most highly addictive and dangerous drugs" and so objectives in sentencing should focus on general deterrence and denunciation.[11]

The drug is 20 times more powerful that heroin.[12]

There is an elevated chance of fatal overdose.[13]

It is one of the main reasons for there being an opiate epidemic.[14]

Disposition

Trafficking in cocaine is typically a jail sentence. [15] This is particularly true in "dial-a-dope" schemes which are a form of commercial trafficking.[16] Even first time offenders should expect a “significant” penitentiary sentence.[17]

Exceptional Circumstances

It has been suggested that only in "exceptional circumstances" should a sentence be outside of the normal range of jail.[18] These circumstances can take the form of the existence of "multiple mitigating factors."[19]

Factors

Smuggling any amount of drugs into a correctional facility is an aggravating factor.[20]

  1. ↑ R v Tuck, 2007 ONCA 495 (CanLII), [2007] OJ No 2626 (CA), per curiam, at para 2
    R v Wellington, 1999 CanLII 3054 (ON CA), 132 CCC (3d) 470, per Feldman JA, at p. 476
    R v Cunningham, 1996 CanLII 1311 (ON CA), 104 CCC (3d) 542, per curiam, at p. 547
  2. ↑ Pushpanathan v Canada (Minister of Citizenship and Immigration), 1998 CanLII 778 (SCC), [1998] 1 SCR 982, per Bastarache J, at pp. 1039-1040
  3. ↑ see R v Aitkens, 2004 BCCA 411 (CanLII), 202 BCAC 167, per Newbury JA, at para 7 ("Drug trafficking has become a blight in our society")
    R v Beaudry, 2000 ABCA 243 (CanLII), CR (5th) 1, per Berger JA, at paras 158 and 165 ("The damage to the community from trafficking in cocaine is substantial, and extends well beyond the offender and his prospective customers ... it contributes to a variety of other offences, with the potential for extremely serious health and economic consequences. Drug trafficking remains a serious problem in Canada.")
    R v Woolcock, [2002] OJ No 4927(*no CanLII links) , at para 8 (“There is no dispute that crack cocaine is an extremely dangerous and insidious drug with potential to cause a great deal of harm to individuals and to society.”)
    R v Daya, 2007 ONCA 693 (CanLII), 227 CCC (3d) 367, per Moldaver and LaForme JJA, at para 18
    R v Harris, 2008 CanLII 23493 (ON SC), [2008] OJ No 1976 (SCJ), per DM Brown J, at paras 21-22{{{3}}}
    R v Johnson, 2010 BCCA 57 (CanLII), [2010] BCJ No 301 (CA), per Bennett JA, at para 29 ("correctly took into account the serious effect that cocaine has on fellow citizens and [the offender's] role in spreading this 'disease'.")
    R v Sem (S.), 2005 MBQB 208 (CanLII), 197 Man R (2d) 47, per MacInnes J, at paras 37 to 38
  4. ↑ R v Hamilton, 2004 CanLII 5549 (ON CA), OR (3d) 1, per Doherty JA, at para 104
    R v Ma, 2003 ABCA 220 (CanLII), 177 CCC (3d) 535, per curiam, at para 5
  5. ↑ R v Lloyd, 2016 SCC 13 (CanLII), [2016] 1 SCR 130, per McLachlin CJ , at para 26
  6. ↑ R v Steeves, 2007 NSCA 130 (CanLII), 835 APR 76, per Oland JA
    R v Butt, 2010 NSCA 56 (CanLII), 922 APR 376, per Bateman JA R v Scott, 2013 NSCA 28 (CanLII), 327 NSR (2d) 256, per Beveridge JA (2:1) R v Oickle, 2015 NSCA 87 (CanLII), 330 CCC (3d) 82, per Scanlan JA, at paras 31 and 48
  7. ↑ R v Villanueva, 2007 ONCJ 87 (CanLII), 46 CR (6th) 129, per MacDonnell J, at para 27
    see also R v Nguyen, 2011 ONSC 6229 (CanLII), per McWatt J, at para 41 (“The danger of methamphetamine to human life is becoming uncontrovertibly clear.”)
  8. ↑ R v Cleghorn, 2015 NSPC 54 (CanLII), per Tax J, at para 36
  9. ↑ R v Bercier (T.J.), 2004 MBCA 51 (CanLII), per Monnin JA Cleghorn, supra, at para 37
  10. ↑ Bercier, supra, at paras 32 to 37
    see also Cleghorn, supra, at para 37
  11. ↑ R v Lu, 2016 ONCA 479 (CanLII), per curiam, at para 9
    R v Smith, 2017 BCCA 112 (CanLII), BCJ No 471, at para 45, per Newbury JA
    R v Vezina, 2017 ONCJ 775 (CanLII), OJ No 6027, per Sopinka J, at para 58
  12. ↑ R v Bedi, 2019 ONSC 1612 (CanLII), at para 39br> R v Loor, 2017 ONCA 696 (CanLII), OJ No 4628, per Laskin JA, at para 36
  13. ↑ R v Smith, 2017 BCCA 112 (CanLII), BCJ No 471{{perBCCA| }, at 65 paras and 65{{{3}}}
    R v Hudson, 2019 ONSC 290 (CanLII), per Charney J
  14. ↑ R v Olvedi, 2018 ONSC 6330 (CanLII), per Petersen J
  15. ↑ R v Al-Amiri, 2015 NLCA 37 (CanLII), 328 CCC (3d) 266, per Barry JA, at para 61
  16. ↑ R v Sawatsky, 2007 ABCA 353 (CanLII), 76 WCB (2d) 142, per Martin JA
    R v Maskill, 1981 ABCA 50 (CanLII), 58 CCC (2nd) 408, per Moir JA, at para 20
    R v Rahime, 2001 ABCA 203 (CanLII), 156 CCC (3d) 349, per curiam
  17. ↑ Loor at para 50(complete citation pending)
  18. ↑ R v Peters (R.N.), 2015 MBCA 119 (CanLII), 323 Man.R. (2d) 237, per Monnin JA
    R v Tran, 2015 MBCA 120 (CanLII), 333 CCC (3d) 206, per Monnin JA
    R v Racca (R.A.), 2015 MBCA 121 (CanLII), 127 WCB (2d) 227, per Burnett JA
  19. ↑ Tran, supra, at para 24
    R v Voong, 2015 BCCA 285 (CanLII), (D.M.) et al., per Bennett JA, at para 59
  20. ↑ R v Taylor, 2013 SKCA 33 (CanLII), 414 Sask R 15, per Richards JA, at paras 15, 16

Ranges

See also: Drug Trafficking, Schedule I (Sentencing Cases) and Drug Trafficking, Schedule I, Cocaine (Sentencing Cases)
General Ranges

Sentencing ranges vary between provinces.

In Nova Scotia, an appropriate sentence for trafficking of Schedule I substances will range will typically span from 3 to 5 years. As such, conditional sentences are rarely available.[1]

In Saskatchewan, the range is between 18 months to 4 years for trafficking.[2]

In Newfoundland, trafficking in small quantities of cocaine is a sentence in the range of 6 to 18 months.[3]

It is infrequent that it will go below two years[4] and so will virtually guarantee a federal sentence.[5] There is no fixed minimum, however. There is still significant discretion.[6]

However, it is not unreasonable in certain exceptional circumstances to have sentences below two years.[7] The starting point for commercial trafficking in cocaine in small quantities is three years for most provinces.[8]

In Manitoba, there are several recognized levels of trafficking in cocaine:

  1. Low (street dealer): sentences typically start at less than two years and can range up to four years. [9]
  2. Low-Mid (mere courier): sentences for couriers can be between 3 to 6 years.[10]
  3. Mid (more than mere courier of large quantities): sentences typically range from 5 to 8 years if they are an insider, while couriers are in the range of 3 to 6 years.[11]
  4. High: (multi-kilogram trafficker): sentences typically range from 8 to 12 years[12]

It has been further suggested that “a person who traffics in a sophisticated manner at a kilogram level should, absent significant mitigating factors, expect no less a penalty than 10 years' incarceration. It should not matter whether that drug is cocaine or methamphetamine.” [13]

In Ontario, for possession of "a substantial amount of cocaine for the purpose of trafficking" the range is usually 5 to 5.5 years even with a guilty plea and no record.[14]

The Ontario "normal" range for "someone, without a record, convicted of possession for the purpose of trafficking in slightly more than a pound [or 453.59 grams] of cocaine."[15]

Trafficking heroin, even in small amounts, will result in federal sentences absent exceptional circumstances.[16]

Small amounts

In Ontario, the range of sentencing for trafficking in small amounts of crack cocaine is 6 months to 2 years less a day.[17]

Mid-range

Manitoba court has stated that the mid-level drug deal has a range of sentence between 7 to 8 years.[18]

Large amounts of Drugs (1kg+)

The range of sentence for trafficking of cocaine in the amounts of 1 kg or more will typically see sentences in the range of 5 years.[19] Larger amounts upward of 3 kg will attract a range of 6 to 8 years.[20] It has also be articulated as "substantial amounts" of cocaine attracting a range of 5 to 8 years.[21]

In Ontario, a first-time offender convicted for being a courier for large amounts of high-grade heroin should expect a range between 12 and 17 years jail absent "exceptional or extenuating circumstances."[22]

Couriers

The drug couriers' job is to transport drugs and protect their bosses from being detected.[23]

Fentanyl

Low level trafficking should result in a high end provincial sentence at a minimum, or else a low penitentiary sentence.[24] In very exceptional circumstances, the court may consider a suspended sentence..[25]

Generally trafficking in significant amounts of fentanyl should attract a significant penitentiary sentence.[26]

A fentanyl sentence should be equal or greater than if it was cocaine.[27]

  1. ↑ R v Knickle, 2009 NSCA 59 (CanLII), 246 CCC (3d) 57, per Roscoe JA
    R v Conway, 2009 NSCA 95 (CanLII), 247 CCC (3d) 304, per Bateman JA
  2. ↑ R v Aube, 2009 SKCA 53 (CanLII), 324 Sask R 303, per Smith JA, at para 19
    R v Shawile, 2012 SKCA 51 (CanLII), 393 Sask R 211, per Herauf JA
    R v Taylor, 2013 SKCA 33 (CanLII), 414 Sask R 15, per Richards JA, at para 14
  3. ↑ R v Taylor, 2012 CanLII 1915 (NLSCTD), per Dymond J, at para 12
  4. ↑ R v Dawe, 2002 NSCA 147 (CanLII), 659 APR 212, per Hamilton JA
  5. ↑ R v Jamieson, 2011 NSCA 122 (CanLII), 983 APR 392, per Saunders JA, at para 38
  6. ↑ R v Ostertag, 2000 ABCA 232 (CanLII), 266 AR 57, per Veit J, at paras 12 to 16
  7. ↑ R v Murphy (M.P.), 2011 MBCA 84 (CanLII), 270 Man R (2d) 214, per Monnin JA
    R v Panko, 2000 MBCA 45 (CanLII), (D.), 148 Man.R. (2d) 138, per Huband JA
    R v Reid (B.A.C.), 1998 CanLII 17760 (MB CA), Man.R. (2d) 153, per Helper JA
    R v Champagne (D.A.), 2000 MBCA 66 (CanLII), 148 Man.R. (2d) 104, per Helper JA
  8. ↑ AB: R v Maskill, 1981 ABCA 50 (CanLII), 29 AR 107, 58 CCC (2d) 408 (CA), per Moir J
    R v Rahime, 2001 ABCA 203 (CanLII), 286 AR 377, per curiam, at para 26
    R v Marchesi, 2009 ABCA 304 (CanLII), 460 AR 294, per curiam, at para 4
    R v McCulloch, 2011 ABCA 124 (CanLII), AJ No 448, per curiam, at para 8 - starting point sentence “for commercial trafficking in cocaine in small quantities”
    R v Rainville, 2010 ABCA 288 (CanLII), 490 AR 150, per Rowbotham JA, at para 6
    R v Chung, 1999 ABCA 86 (CanLII), AR 351 (CA), 18 WCB (2d) 611, per Fraser CJ
    NS: R v Knickle, 2009 NSCA 59 (CanLII), 246 CCC (3d) 57, per Roscoe JA
  9. ↑ R v Gilchrist, 2004 MBCA 21 (CanLII), 184 Man R (2d) 23, per Freedman JA
    R v Safaye, 2017 MBQB 217 (CanLII), per Greenberg J
  10. ↑ R v Rocha, 2009 MBCA 26 (CanLII), 236 Man R (2d) 213, per Chartier JA, at paras 61 to 64
    R v Traimany (P.), 2011 MBCA 104 (CanLII), 270 Man.R. (2d) 291, per Chartier JA, at para 3
  11. ↑ Rocha, supra, at paras 61 to 64
  12. ↑ R v Oddleifson, 2010 MBCA 44 (CanLII), 256 CCC (3d) 317, per Chartier JA
  13. ↑ R v Grant, 2007 MBQB 13 (CanLII), 216 Man R (2d) 219, per Scurfeild J, at para 73
  14. ↑ R v Bajada, 2003 CanLII 15687 (ON CA), 173 CCC (3d) 255, per Weiler JA, at paras 12 to 14
    R v Ovid, 2016 ONSC 2974 (CanLII), OJ No 2303, per Campbell J, at para 27
  15. ↑ Ovid, ibid., at para 27
    R v Bryan, 2011 ONCA 273 (CanLII), [2011] OJ No 1581, per curiam, at paras 1 to 2
    See also R v Muise, 2008 ONCA 665 (CanLII), [2007] OJ No 5553 (C.J.), at para 47, aff'd }}, per curiam
    R v Peltier, 2013 ONCA 141 (CanLII), 303 OAC 87, per MacPherson JA, at para 15
    R v Italiano, 2015 ONSC 2216 (CanLII), [2013] OJ No 6459, per O'Marra J, at paras 25 to 31
    R v Feeney, 2015 ONSC 3218 (CanLII), [2015] OJ No 2584, per Garton J, at paras 32 to 40, 44 to 45, 55 to 68
    R v Ceballos, 2015 ONSC 720 (CanLII), [2015] OJ No 536, per MacDonnell J, at paras 2, 5 to 12, 21 to 23
  16. ↑ R v Abdella, 2017 ONSC 1002 (CanLII), per O'Marra J, at para 16
    R v Farizeh, 1994 CanLII 1145 (ON CA), [1994] OJ No 2624 (O.C.A.), per curiam
    R v Bahari, 1994 CanLII 1425 (ON CA), [1994] OJ No 2625 (O.C.A.), per curiam
  17. ↑ R v Woolcock [2002] OJ No 4927(*no CanLII links) at 15
    R v Madeiros, [2001] OJ No 5664 (Ont. SCJ)(*no CanLII links)
    R v Radassao, 1994 CanLII 779 (ON CA), [1994] OJ No 1990 (ONCA), per Griffiths JA
  18. ↑ Rocha, supra, at para 64
    Traimany, supra, at para 3
  19. ↑ R v Bajada, 2003 CanLII 15687 (ON CA), OAC 226 (CA), per Weiler JA, at para 13
  20. ↑ R v Oraha, 2012 ONSC 1439 (CanLII), per Archibald J, at para 31
  21. ↑ R v Rage, 2018 ONCA 211 (CanLII), per curiam, at para 14
  22. ↑ R v Sidhu, 2009 ONCA 81 (CanLII), 242 CCC (3d) 273, per curiam, at para 14
    R v Deol, 2017 ONCA 221 (CanLII), 352 CCC (3d) 343, per Juriansz JA, at para 48
  23. ↑ Traimany, supra, at para 3
    Rocha, supra, at para 64
  24. ↑ R v Hillier, 2018 ONCJ 397 (CanLII), per West J at 137
  25. ↑ Hillier, ibid. at 116
  26. ↑ R v Loor, 2017 ONCA 696 (CanLII), OJ No 4628, per Laskin JA, at para 50
  27. ↑ Lynch, 2022 ONCA 109 at para 15(complete citation pending)

Conditional Sentences

Offences occurring before November 20, 2012 may be eligible for a conditional sentence in certain circumstances. Offences after that date are ineligible under s. 742.1 which prohibits conditional sentences for offences under s. 5(2) of the Controlled Drugs and Substances Act.[1]

In Ontario and Newfoundland, the conditional sentence is available for trafficking in only rare cases.[2] Those who are involved in a “dial-a-dope” operation will generally be sentenced to incarceration.[3]

In Saskatchewan, conditional sentences are available for trafficking in hard drugs. The appropriateness of a conditional sentences depends on several factors:[4]

  1. the sophistication and significance of the offence and the accused's place in it;
  2. the type and quantity of drug;
  3. the motivation for the offence: those who traffic to support their own habit may be more likely to receive a restorative disposition than those who traffic for other reasons;
  4. the need for and the utility of the deterrence which will be provided by the sentence imposed;
  5. the factors relating to the community like the significance of the problem; and,
  6. the age, lack of record and other personal circumstances of the accused.

The Code amendments concerning conditional sentences that came into force on November 6, 2012, prohibit conditional sentence for drug trafficking.

  1. ↑ See List of Criminal Code Amendments
  2. ↑ R v Ly, 1997 CanLII 2983 (ON CA), 114 CCC (3d) 279, per Austin JA at 286 ("will be looked to only rarely in cases of drug trafficking")
    R v Brown, 1997 CanLII 10869 (NL CA), 119 CCC (3d) 147, per Marshall JA at 155
  3. ↑ R v Sawatsky, 2007 ABCA 353 (CanLII), 76 WCB (2d) 142, per Martin JA, at para 4 ("We agree with the Crown that those who organize and manage "dial-a-dope" schemes to traffic in drugs, such as cocaine ... should usually be sentenced to terms of actual incarceration.")
  4. ↑ R v Pankewich, 2002 SKCA 7 (CanLII), 161 CCC (3d) 534, per Jackson JA, at para 49

Ancillary Sentencing Orders

See also: Ancillary Orders
Offence-specific Orders
Order Conviction Description
DNA Orders s. 5(a) CDSA
Weapons Prohibition Orders s. 5 CDSA
  • For offences under s. 5 that are enumerated under s. 109(1)(b) or (c), the prohibition order is mandatory regardless of election. The order prohibits "the person from possessing any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition and explosive"The order prohibits "the person from possessing any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition and explosive".
      • Duration (first offence): The Order prohibiting to "firearms" (other than a prohibited firearm or restricted firearm) and "crossbow, restricted weapon, ammunition and explosive substance" is for not less than 10 years starting at release from custody or at sentencing where custody is not ordered. The Order prohibiting "prohibited firearm, restricted firearm, prohibited weapon, prohibited device" is for life.
      • Duration (subsequent s. 109 offence): The duration must be life for all enumerated weapons and firearms. Notice of increased penalty under s. 727 required.
Circumstance-specific Forfeiture Orders
Forfeiture Conviction Description
Forfeiture of Proceeds of Crime (s. 462.37(1) or (2.01)) any Where there is a finding of guilt for an indictable offence under the Code or the CDSA in which property is "proceeds of crime" and offence was "committed in relation to that property", the property shall be forfeited to His Majesty the King on application of the Crown. NB: does not apply to summary offences.
Fine in Lieu of Forfeiture (s. 462.37(3)) any Where a Court is satisfied an order for the forfeiture of proceeds of crime under s. 462.37(1) or (2.01) can be made, but that property cannot be "made subject to an order", then the Court "may" order a fine in "an amount equal to the value of the property". Failure to pay the fine will result in a default judgement imposing a period of incarceration.
Forfeiture of Weapons or Firearms (s. 491) any Where there is finding of guilt for an offence where a "weapon, an imitation firearm, a prohibited device, any ammunition, any prohibited ammunition or an explosive substance was used in the commission of [the] offence and that thing has been seized and detained", or "that a person has committed an offence that involves, or the subject-matter of which is, a firearm, a cross-bow, a prohibited weapon, a restricted weapon, a prohibited device, ammunition, prohibited ammunition or an explosive substance has been seized and detained, that the item be an enumerated weapon or related item be connected to the offence", then there will be a mandatory forfeiture order. However, under s. 491(2), if the lawful owner "was not a party to the offence" and the judge has "no reasonable grounds to believe that the thing would or might be used in the commission of an offence", then it should be returned to the lawful owner.
Forfeiture of Offence-related Property (s. 490.1) any Where there is a finding of guilt for an indictable offence, "any property is offence-related property" where (a) by means or in respect of which an indictable offence under this Act or the Corruption of Foreign Public Officials Act is committed, (b) that is used in any manner in connection with the commission of such an offence, or (c) that is intended to be used for committing such an offence". Such property is to be forfeited to Her Majesty in right of the province. NB: does not apply to summary offences.
Other Sentencing Orders
Order Conviction Description
Non-communication order while offender in custody (s. 743.21) any The judge has the discretion to order that the offender be prohibited "from communicating...with any victim, witness or other person" while in custody except where the judge "considers [it] necessary" to communicate with them.
Restitution Orders (s. 738) any A discretionary Order is available for things such as the replacement value of the property; the pecuniary damages incurred from harm, expenses fleeing a domestic partner; or certain expenses arising from the commission of an offence under s.402.2 or 403.
Victim Fine Surcharge (s. 737) any A discretionary surcharge under s. 737 of 30% of any fine order imposed, $100 per summary conviction or $200 per indictable conviction. If the offence occurs on or after October 23, 2013, the order has smaller minimum amounts (15%, $50, or $100).

History

Prior to November 17, 2022

Trafficking in substance

5 (1) No person shall traffic in a substance included in Schedule I [opiates and related], II [cannaboids], III [psychedelics], IV [barbiturates] or V [repealed] or in any substance represented or held out by that person to be such a substance.

Possession for purpose of trafficking

(2) No person shall, for the purpose of trafficking, possess a substance included in Schedule I [opiates and related], II [cannaboids], III [psychedelics], IV [barbiturates] or V [repealed].

Punishment

(3) Every person who contravenes subsection (1) [trafficking in controlled substances] or (2) [possession of controlled substances for purpose of trafficking]

(a) if the subject matter of the offence is a substance included in Schedule I

[opiates and related] or II [cannaboids], is guilty of an indictable offence and liable to imprisonment for life, and

(i) to a minimum punishment of imprisonment for a term of one year if
(A) the person committed the offence for the benefit of, at the direction of or in association with a criminal organization, as defined in subsection 467.1(1) [definitions re criminal organizations] of the Criminal Code,
(B) the person used or threatened to use violence in committing the offence,
(C) the person carried, used or threatened to use a weapon in committing the offence, or
(D) the person was convicted of a designated substance offence, or had served a term of imprisonment for a designated substance offence, within the previous 10 years, or
(ii) to a minimum punishment of imprisonment for a term of two years if
(A) the person committed the offence 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 18 years,
(B) the person committed the offence in a prison, as defined in section 2 of the Criminal Code, or on its grounds, or
(C) the person used the services of a person under the age of 18 years, or involved such a person, in committing the offence;
(a.1) [Repealed, 2018, c. 16, s. 196]
(b) if the subject matter of the offence is a substance included in Schedule III

[psychedelics] or V [repealed],

(i) is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years, or
(ii) is guilty of an offence punishable on summary conviction and liable to imprisonment for a term not exceeding eighteen months; and
(c) where the subject-matter of the offence is a substance included in Schedule IV

[barbiturates],

(i) is guilty of an indictable offence and liable to imprisonment for a term not exceeding three years, or
(ii) is guilty of an offence punishable on summary conviction and liable to imprisonment for a term not exceeding one year.

(4) [Repealed, 2012, c. 1, s. 39]

Interpretation

(5) For the purposes of applying subsection (3) [trafficking in substance – punishment] in respect of an offence under subsection (1) [trafficking in controlled substances], a reference to a substance included in Schedule I [opiates and related], II [cannaboids], III [psychedelics], IV [barbiturates] or V [repealed] includes a reference to any substance represented or held out to be a substance included in that Schedule.

(6) [Repealed, 2018, c. 16, s. 196]

1996, c. 19, s. 5; 2012, c. 1, s. 39; 2017, c. 7, s. 3; 2018, c. 16, s. 196.


[annotation(s) added]

– Template:CDSASec2

Note up: 5(1), (2), (3), and (5)

Mandatory Minimums

Mandatory minimums were added in November 6, 2012 and then removed November 17, 2022.

The one year mandatory minimum for conviction under s. 5(3)(a)(i)(D) was found to be unconstitutional.[1]

The two year minimum for conviction under s. 5(3)(a)(ii)(B) relating to trafficking in prison.[2]

  1. ↑ R v Lloyd, 2016 SCC 13 (CanLII), [2016] 1 SCR 130, per Galati J - violates right against cruel and unusual punishment
  2. ↑ R v Carswell, 2018 SKQB 53 (CanLII), per Currie J

See Also


v • e
 
Drug Offences
Offences / Sentencing
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