Importing and Exporting Drugs (Offence): Difference between revisions
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'''Constitutionality'''<br> | '''Constitutionality'''<br> | ||
There is some suggestion that s. 6(3)(a) is overbroad for failing to distinguish between "hard" and "soft" drugs, and so conditional sentences are available.<reF> | There is some suggestion that s. 6(3)(a) is overbroad for failing to distinguish between "hard" and "soft" drugs, and so conditional sentences are available.<reF> | ||
R v Williams, [http://canlii.ca/t/h6hd8 2017 ONCJ 666] (CanLII)<Br> | R v Williams, [http://canlii.ca/t/h6hd8 2017 ONCJ 666] (CanLII){{perONCJ|Renwick J}}<Br> | ||
</ref> | </ref> | ||
Revision as of 13:26, 13 December 2018
Importing and Exporting Drugs | |
---|---|
s. 6(3) of the Controlled Drugs and Substances Act | |
Election / Plea | |
Crown Election | Hybrid / Indictable summary proceedings must initiate within 12 months of the offence (786(2)) |
Jurisdiction | Prov. Court Sup. Court w/ Jury (*) |
Summary Dispositions | |
Avail. Disp. | varies |
Minimum | None |
Maximum | varies |
Indictable Dispositions | |
Avail. Disp. | varies |
Minimum | None |
Maximum | varies |
Reference | |
Offence Elements Sentence Digests |
Overview
Offences relating to Importing and Exporting Drugs are found in Part I of the Controlled Drugs and Substances Act relating to "Offences and Punishment".
Pleadings
Offence Section |
Offence Type |
Crown Election | Defence Election s. 536(2) |
---|
Offences under s. 6(3)(a) are straight indictable. There is a Defence election of Court under s. 536(2).
Offences under s. 6(3)(b) 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
Template:ReleaseOnlyBail
When charged under s. 6(3)(b), 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. 6(3)(a) [Schedule I or II] 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".
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
Offences under s. 6 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
Importing and exporting
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.
Possession for the purpose of exporting
(2) Except as authorized under the regulations, no person shall possess a substance included in Schedule I, II, III, IV, V or VI for the purpose of exporting it from Canada.
Punishment
(3) Every person who contravenes subsection (1) or (2)
- (a) where the subject-matter of the offence is a substance included in Schedule I or II, is guilty of an indictable offence and liable to imprisonment for life;
- (b) where the subject-matter of the offence is a substance included in Schedule III or VI,
- (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 or V,
- (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.
...
2011, c. 14, s. 1.
– CDSA
Proof of the Offence
Proving importing and exporting drugs under s. 6(1) CDSA should include:
|
Proving possession for the purpose of importing and exporting drugs under s. 6(2) CDSA should include:
|
Interpretation
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
Sentencing Profile
Maximum Penalties
Offence(s) | Crown Election |
Maximum Penalty |
---|---|---|
s. 6(3)(a) CDSA | N/A | life in custody |
s. 6(3)(b) CDSA | Summary Election | 18 months custody |
s. 6(3)(c) CDSA | Summary Election | 1 year custody |
s. 6(3)(b) CDSA | Indictable Election | 10 years custody |
s. 6(3)(c) CDSA | Indictable Election | 3 years custody |
Offences under s. 6(3)(a) are straight indictable. The maximum penalty is life.
Offences under s. 6(3)(b) and (c) are hybrid. If prosecuted by indictment, the maximum penalty is 10 years incarceration under s. 6(3)(b) or 3 years incarceration under s. 6(3)(c). If prosecuted by summary conviction, the maximum penalty is 18 months jail under s. 6(3)(b) or 1 year jail under s. 6(3)(c).
Minimum Penalties
These offences have no mandatory minimum penalties.
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. 6(3)(a) | N/A | |||||||
s. 6(3)(b), (c) | any |
For offences under s. 6(3)(b) and (c), 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).
Offences under s. 6(3)(a) are ineligible for a conditional sentence order under s. 742.1(c), when prosecuted by indictment, as the maximum period of incarceration is 14 years or life.
If convicted under s. 6(3)(a) a discharge is not available under s. 730(1) as it is "an offence for which a minimum punishment is prescribed by law or an offence punishable by imprisonment for fourteen years or for life".
Consecutive Sentences
There are no statutory requirements that the sentences be consecutive.
Principles
Constitutionality
There is some suggestion that s. 6(3)(a) is overbroad for failing to distinguish between "hard" and "soft" drugs, and so conditional sentences are available.[1]
- ↑
R v Williams, 2017 ONCJ 666 (CanLII), per Renwick J
Ranges
Ancillary Sentencing Orders
Offence-specific Orders
Order | Conviction | Description |
---|---|---|
DNA Orders | s. 6(3)(a), (a.1) or (b) |
|
Weapons Prohibition Orders | s. 6(1) or (2) |
|
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
|
- Level Zero
- Criminal Law
- Sentencing
- Offences
- Wiretap Eligible Offences
- Offences Requiring Notice to Victim
- Straight Indictable Offences
- Hybrid Offences
- Offences with No Mandatory Minimum
- Secondary Designated Offences for DNA Orders
- Section 109 or 110 Prohibition Offences
- Drug Offences
- Offences with Maximum Penalty of 12 Months
- Offences with Maximum Penalty of 18 Months
- Offences with Maximum Penalty of 3 Years
- Offences with Maximum Penalty of 10 Years
- Offences with Maximum Penalty of Life