Drug Production (Offence)

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Drug Production
s. 7(2)(a), (a.1), (b), (c) or (d) of the Controlled Drugs and Substances Act
Election / Plea
Crown Election	Indictment (Sch I, II) Hybrid (Sch III, IV) summary proceedings must initiate within 12 months of the offence (786(2))
Jurisdiction	Prov. Court Sup. Court w/ Jury (*) Sup. Court w/ Judge-alone (*) * Must be indictable. Preliminary inquiry also available.
Summary 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	18 months incarceration (Sch III) 1 year incarceration (Sch IV)
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)* (* varies)
Minimum	None
Maximum	7 years incarceration (Sch I, Mj) 10 years incarceration (Sch III) 3 years incarceration (Sch IV) Life (Sch I, II except Mj)
Reference
Offence Elements Sentence Digests

Overview

Offences relating to drug production are found in Part I of the Controlled Drugs and Substances Act relating to "Offences and Punishment".

Pleadings

Offences under s. 7(2)(a) or (a.1) are straight indictable. There is a Defence election of Court under s. 536(2).

Offences under s. 7(2)(c) or (d) are hybrid with a Crown election. If prosecuted by indictment, there is a Defence election of Court under s. 536(2).

Before the Crown can rely on provisions increasing the duration of the weapons prohibition order due to a prior weapons prohibition order notice under s. 727 must be given prior to plea.

Release

When charged under s. 7(2)(c) or (d), the accused can be given an appearance notice without arrest under s. 497 or a summons. If arrested, he can be released by the arresting officer under s. 498 or 499 on an undertaking with or without conditions. He can also be released by a justice under s. 515.

Under s. 515(6)(d) offences under s. 7(2)(a) [Schedule I] or (a.1) [Schedule II, non-cannabis] are subject to a reverse onus on bail where it is "an offence punishable by imprisonment for life under any of sections 5 to 7 of the Controlled Drugs and Substances Act or the offence of conspiring to commit such an offence".

Reverse Onus Bail

If police decide to bring the accused before a Justice pursuant to s. 503, there will be a presumption against bail (i.e. a reverse onus) if the offence, prosecuted by indictment, was committed:

• while at large under s. 515 [bail release], 679 or 680 [release pending appeal or review of appeal] (s. 515(6)(a)(i));
• "for the benefit of, at the direction of, or in association" with a criminal organization (s. 515(6)(a)(ii));
• where the offence involved a weapon, being a firearm, cross-bow, prohibited weapon restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance, while the accused was subject to a prohibition order preventing possession of these items (s. 515(6)(a)(viii)); or
• where the accused is not "ordinarily a resident in Canada" (s. 515(6)(b)).

And, regardless of Crown election, if the offence alleged was one:

• where the offence was an allegation of violence against an "intimate partner" and the accused had been previously convicted of an offence of violence against an "intimate partner" (s. 515(6)(b.1));
• where the offence alleged is a breach under s. 145(2) to (5) while (s. 515(6)(c));
• where the offence committed (or conspired to commit) was an offence under s. 5 to 7 of the CDSA that is punishable by life imprisonment (s. 515(6)(d));

Publication Bans

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.

Offence Designations

Offence(s)	Wiretap Eligible s. 183	Dangerous Offender Designated Offence s. 752	Serious Personal Injury Offence s. 752	AG Consent Required	Serious Criminality Offence s. 36 IRPA
s. 7

Offences under 7 are designated offences eligible for wiretap under s. 183.

Under s. 8 of the Controlled Drugs and Substances Act, the Court is not required to impose a mandatory minimum sentence unless notice is given before plea.

See below in Ancillary Sentencing Orders for details on designations relating to sentencing orders.

Offence Wording

Production of substance
7 (1) Except as authorized under the regulations, no person shall produce a substance included in Schedule I, II, III or IV.

Punishment

(2) Every person who contravenes subsection (1)

(a) if the subject matter of the offence is a substance included in Schedule I, is guilty of an indictable offence and liable to imprisonment for life and to a minimum punishment of imprisonment for a term of three years if any of the factors set out in subsection (3) apply and for a term of two years in any other case;

(a.1) if the subject matter of the offence is a substance included in Schedule II, other than cannabis (marijuana), is guilty of an indictable offence and liable to imprisonment for life, and to a minimum punishment of imprisonment

(i) for a term of one year if the production is for the purpose of trafficking, or

(ii) for a term of 18 months if the production is for the purpose of trafficking and any of the factors set out in subsection (3) apply;

(b) if the subject matter of the offence is cannabis (marijuana), 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

(i) imprisonment for a term of six months if the number of plants produced is less than 201 and more than five, and the production is for the purpose of trafficking,

(ii) imprisonment for a term of nine months if the number of plants produced is less than 201 and more than five, the production is for the purpose of trafficking and any of the factors set out in subsection (3) apply,

(iii) imprisonment for a term of one year if the number of plants produced is more than 200 and less than 501,

(iv) imprisonment for a term of 18 months if the number of plants produced is more than 200 and less than 501 and any of the factors set out in subsection (3) apply,

(v) imprisonment for a term of two years if the number of plants produced is more than 500, or

(vi) imprisonment for a term of three years if the number of plants produced is more than 500 and any of the factors set out in subsection (3) apply;

(c) where the subject-matter of the offence is a substance included in Schedule III,

(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

(d) where the subject-matter of the offence is a substance included in Schedule IV,

(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.

Factors

(3) The following factors must be taken into account in applying paragraphs (2)(a) to (b):

(a) the person used real property that belongs to a third party in committing the offence;

(b) the production constituted a potential security, health or safety hazard to persons under the age of 18 years who were in the location where the offence was committed or in the immediate area;

(c) the production constituted a potential public safety hazard in a residential area; or

(d) the person set or placed a trap, device or other thing that is likely to cause death or bodily harm to another person in the location where the offence was committed or in the immediate area, or permitted such a trap, device or other thing to remain or be placed in that location or area.

1996, c. 19, s. 7; 2012, c. 1, s. 41.

– CDSA

Possession, sale, etc., for use in production of or trafficking in substance
7.1 (1) No person shall possess, produce, sell, import or transport anything intending that it will be used

(a) to produce a controlled substance, unless the production of the controlled substance is lawfully authorized; or

(b) to traffic in a controlled substance.

Punishment

(2) Every person who contravenes subsection (1)

(a) if the subject matter of the offence is a substance included in Schedule I, II, III or V,

(i) is guilty of an indictable offence and liable to imprisonment for a term of not more than 10 years, or

(ii) is guilty of an offence punishable on summary conviction and liable to imprisonment for a term of not more than 18 months; and

(b) if the subject matter of the offence is a substance included in Schedule IV,

(i) is guilty of an indictable offence and liable to imprisonment for a term of not more than three years, or

(ii) is guilty of an offence punishable on summary conviction and liable to imprisonment for a term of not more than one year.

2011, c. 14, s. 1; 2017, c. 7, s. 6.

– CDSA

Notice

8 The court is not required to impose a minimum punishment unless it is satisfied that the offender, before entering a plea, was notified of the possible imposition of a minimum punishment for the offence in question and of the Attorney General’s intention to prove any factors in relation to the offence that would lead to the imposition of a minimum punishment.
2012, c. 1, s. 42.

– CDSA

Proof of the Offence

Proving drug production under s. 7 CDSA should include: ☐ identity of accused as culprit ☐ date and time of the incident ☐ jurisdiction (incl. region and province) ☐ the culprit produces a substance; the substance is a Controlled Substance under the CDSA; the culprit knows the criminal nature of the substance.

Interpretation of the Offence

The gravamen of the offence is the "active participation in the growing of prohibited plants."

Production Defined

Definitions

2. (1) In this Act,
...
“produce” means, in respect of a substance included in any of Schedules I to IV, to obtain the substance by any method or process including

(a) manufacturing, synthesizing or using any means of altering the chemical or physical properties of the substance, or

(b) cultivating, propagating or harvesting the substance or any living thing from which the substance may be extracted or otherwise obtained, and includes offer to produce;

...

– CDSA

Lesser Included Offence

The offence of possession of drugs is not an included offence.

Participation of Third Parties

Testimonial Aids

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

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

Maximum Penalties

Offences under s. 7(2)(a) [Sch I], (a.1), and (b) are straight indictable. The maximum penalty is life [s. 7(2)(a) or non-cannabis 7(2)(a.1)] or 14 years incarceration [s. 7(2)(b)].

Offences under s. 7(2)(c) [Sch III] and (d) [Sch IV] are hybrid. If prosecuted by indictment, the maximum penalty is 10 years incarceration [Sch III] or 3 years incarceration [Sch IV]. If prosecuted by summary conviction, the maximum penalty is 18 months incarceration [Sch III] or 12 months incarceration [Sch IV].

Minimum Penalties

For offences under s. 7(2)(a) [Sch I], (a.1), and (b) there is a mandatory minimum penalty of See table.

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. 7(2)(a) [Sch I], (a.1), and (b)	N/A
s. 7(2)(c) [Sch III], (d) [Sch s.	any

Offences under s. 7(2)(a) [Sch I], (a.1), and (b) have mandatory minimums. There are no discharges, suspended sentences, stand-alone fines, or conditional sentences available.

For offences under s. 7(2)(c) [Sch III], (d) [Sch IV], 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).

Consecutive Sentences

There are no statutory requirements that the sentences be consecutive.

Principles

Non-commercial operations are considered the least serious manifestations of this offence.

Constitutionality

The mandatory minimums found under s. 7(2)(b)(iii), (iv), (v) and (vi) are unconstitutional as they violate s. 12 of the Charter and cannot be justified under s. 1 of the Charter.

Factors

• size of the enterprise
• level of sophistication
• evidence of fortification
• presence of weapons
• presence of children
• threats to health and safety
• theft of utilities
• degree of participation (crop-sitter, worker or owner)
• intended use of drugs (personal vs commercial)

Ranges

see also: Drug Production (Sentencing Cases)

Ancillary Sentencing Orders

Offence-specific Orders

Order	Conviction	Description
DNA Orders	s. 7(2)(a), (a.1), (b), or (c)	For conviction under s. 7(2)(a), (a.1), (b), or (c), a DNA order is discretionary as a secondary designated offence listed under s. 487.04 (a) or (b).
Weapons Prohibition Orders	s. 7(1)	For offences under s. 7(1) 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.

General 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).

General 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.

See Also

References

• Pre-Trial and Trial Motions Checklist