Importing or Exporting Drug Paraphernalia (Offence)
|Importing or Exporting Drug Paraphernalia|
|s. 462.2 of the Crim. Code|
|Election / Plea|
summary proceedings must initiate within 6 months of the offence (786(2))
Sup. Court w/ Jury (*)
|Types of Release||Release by Officer, Officer-in-charge, or Judge|
|Avail. Disp.||Discharge (730)|
Conditional Sentence (742.1)
|Maximum||$100,000 and 6 months incarceration (first ofrence) $300,000 and 1 year incarceration (subsequent offence)|
The offence of importing or exporting drug paraphernalia is a drug offence found in Part XII.1 of the Criminal Code.
|Crown Election||Defence Election|
|s. 462.2 [importing or exporting drug paraphernalia]||Summary Offence(s)||N/A||No|
Offences under s. 462.2 are straight summary conviction offence. The trial must be held in provincial court.
On Attendance Notice
On a Promise to Appear
Undertaking or Recognizance
a Judge or Justice
on a PTA, Undertaking or Recog.
|Direct to Attend |
for Fingerprints, etc.
Identification of Criminals Act
s. 2 ID Crim. Act
When charged under s. 462.2, the accused can be given an attendance notice without arrest under s. 496 or a summons. If arrested, he can be released by the arresting officer under s. 497 on an attendance notice or by an officer-in-charge under s. 498 on a promise to appear or recognizance. He can also be released by a justice under s. 515.
For all criminal or regulatory prosecutions, there is a discretionary general publication ban available on application of the Crown, victim or witness to prohibit the publishing of "any information that could identify the victim or witness" under s. 486.5(1) where it is "necessary" for the "proper administration of justice". Other available publication bans include prohibitions for publishing evidence or other information arising from a bail hearing (s. 517), preliminary inquiry (s. 539) or jury trial (s. 648). There is a mandatory publication ban in all youth prosecutions on information tending to identify young accused under s. 110 of the YCJA or young victims under s. 111 of the YCJA.
See below in Ancillary Sentencing Orders for details on designations relating to sentencing orders.
INSTRUMENTS AND LITERATURE FOR ILLICIT DRUG USE
Offence and Punishment
462.2 Every one who knowingly imports into Canada, exports from Canada, manufactures, promotes or sells instruments or literature for illicit drug use is guilty of an offence and liable on summary conviction
- (a) for a first offence, to a fine not exceeding one hundred thousand dollars or to imprisonment for a term not exceeding six months or to both; or
- (b) for a second or subsequent offence, to a fine not exceeding three hundred thousand dollars or to imprisonment for a term not exceeding one year or to both.
R.S., 1985, c. 50 (4th Supp.), s. 1.
Proof of the Offence
Proving importing or eporting drug paraphrenalia under s. 462.2 should include:
462.1 In this Part,
“consume” includes inhale, inject into the human body, masticate and smoke;
“illicit drug” means a controlled substance or precursor the import, export, production, sale or possession of which is prohibited or restricted pursuant to the Controlled Drugs and Substances Act;
“illicit drug use” means the importation, exportation, production, sale or possession of a controlled substance or precursor contrary to the Controlled Drugs and Substances Act or a regulation made under that Act;
“instrument for illicit drug use” means anything designed primarily or intended under the circumstances for consuming or to facilitate the consumption of an illicit drug, but does not include a “device” as that term is defined in section 2 of the Food and Drugs Act;
“literature for illicit drug use” means any printed matter or video describing or depicting, and designed primarily or intended under the circumstances to promote, encourage or advocate, the production, preparation or consumption of illicit drugs;
“sell” includes offer for sale, expose for sale, have in possession for sale and distribute, whether or not the distribution is made for consideration.
R.S., 1985, c. 50 (4th Supp.), s. 1; 1996, c. 19, s. 67.
Participation of Third Parties
Certain persons who testify are entitled to make application for the use of testimonial aids: Exclusion of Public (s. 486), Use of a Testimonial Screen (s. 486), Access to Support Person While Testifying (s. 486.1), Close Proximity Video-link Testimony (s. 486.2), Self-Represented Cross-Examination Prohibition Order (s. 486.3), and Witness Security Order (s. 486.7).
A witness, victim or complainant may also request publication bans (s. 486.4, 486.5) and/or a Witness Identity Non-disclosure Order (s. 486.31). See also, Publication Bans, above.
On Finding of Guilt
Under s. 738, a judge must inquire from the Crown before sentencing whether "reasonable steps have been taken to provide the victims with an opportunity to indicate whether they are seeking restitution for their losses and damages".
Under s. 722(2), the judge must inquire "[a]s soon as feasible" before sentencing with the Crown "if reasonable steps have been taken to provide the victim with an opportunity to prepare" a victim impact statement. This will include any person "who has suffered, or is alleged to have suffered, physical or emotional harm, property damage or economic loss" as a result of the offence. Individuals representing a community impacted by the crime may file a statement under s. 722.2.
Sentencing Principles and Ranges
|s. 462.2 [importing or exporting drug paraphernalia]||N/A||$100,000 fine and/or 6 months jail|
|s. 462.2 [importing or exporting drug paraphernalia]
with prior conviction
|N/A||$300,000 fine and/or 1 year jail|
Offences under s. 462.2 are straight summary conviction offences. The maximum penalty is $100,000 fine and/or 6 months jail or $300,000 fine and/or 1 year jail, with one or more prior convictions.
These offences have no mandatory minimum penalties.
s. 718.3, 787
All dispositions are available.The judge may order a discharge (s. 730), suspended sentence (s. 731(1)(a)), fine (s. 731(1)(b)), custody (s. 718.3, 787), custody with probation (s. 731(1)(b)), custody with a fine (s. 734), or a conditional sentence (s. 742.1).
There are no statutory requirements that the sentences be consecutive.
Ancillary Sentencing Orders
General Sentencing Orders
|Non-communication order under s. 743.21||any||A discretionary order prohibiting the offender from communicating with named persons while he is in custody.|
|Restitution Orders||any||A discretionary Order on application under s. 738, 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||any||A mandatory surcharge under s. 737 of 30% of any fine order imposed, $100 per summary conviction or $200 per indictable conviction. If offence occurs on or after October 23, 2013, the order is discretionary based on ability to pay if before.|
General Forfeiture Orders
|Forfeiture of Weapons and 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.|