Importing and Exporting Drugs (Offence)

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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 (*) Sup. Court w/ Judge-alone (*) * Must be indictable.
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)	Preliminary Inquiry
s. 6(3)(a) [importing and exporting Schedule I and II drugs]	Indictable Offence(s)	N/A		(life max)
s. 6(3)(a.1)	Indictable Offence(s)	N/A		(life max)
s. 6(3)(b) [importing and exporting Schedule III, V and VI drugs]	Hybrid Offence(s)		(* only if Crown proceeds by Indictment)	(under 14 years max)
s. 6(3)(c) [importing and exporting Schedule IV drugs]	Hybrid Offence(s)		(* only if Crown proceeds by Indictment)	(under 14 years max)

Offences under s. 6(3)(a) [importing and exporting Schedule I and II drugs] are straight indictable. There is a Defence election of Court under s. 536(2).

Offences under s. 6(3)(b) [importing and exporting Schedule III, V and VI drugs] are hybrid with a Crown election. If prosecuted by indictment, there is a Defence election of Court under s. 536(2) to trial by provincial court, superior court judge-alone or superior court judge-and-jury.

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. 6(3)(a) [importing and exporting Schedule I and II drugs], the accused can be given a judicial summons without arrest. 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.

When charged under s. 6(3)(b) [importing and exporting Schedule III, V and VI drugs], 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".

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. 6(3)(a) [importing and exporting Schedule I and II drugs]
s. 6(3)(a.1)
s. 6(3)(b) [importing and exporting Schedule III, V and VI drugs]
s. 6(3)(c) [importing and exporting Schedule IV drugs]

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 [opiates and related], II [cannaboids], III [psychedelics], IV [barbiturates], V [repealed] or VI [precursors].

Possession for the purpose of exporting

(2) Except as authorized under the regulations, no person shall possess a substance included in Schedule I [opiates and related], II [cannaboids], III [psychedelics], IV [barbiturates], V [repealed] or VI [precursors] for the purpose of exporting it from Canada.

Punishment

(3) Every person who contravenes subsection (1) [importing and exporting controlled substance] or (2) [possession for the purpose of exporting]

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

[opiates and related] in an amount that is not more than one kilogram, or in Schedule II [cannaboids], is guilty of an indictable offence and liable to imprisonment for life, and to a minimum punishment of imprisonment for a term of one year if

(i) the offence is committed for the purposes of trafficking,

(ii) the person, while committing the offence, abused a position of trust or authority, or

(iii) the person had access to an area that is restricted to authorized persons and used that access to commit the offence;

(a.1) if the subject matter of the offence is a substance included in Schedule I

[opiates and related] in an amount that is more than one kilogram, is guilty of an indictable offence and liable to imprisonment for life and to a minimum punishment of imprisonment for a term of two years;

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

[psychedelics], V [repealed] or VI [precursors],

(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) if 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.

1996, c. 19, s. 6; 2012, c. 1, s. 40; 2017, c. 7, s. 4.
[annotation(s) added]

– CDSA

---

Draft Form of Charges

		Pre-ambles
		"THAT [accused full name] stands charged that, between the <DATE> day of <MONTH>, <YEAR> and <DATE> day of <MONTH>, <YEAR>***, at or near <COMMUNITY/TOWN/CITY>, <PROVINCE>, he [or she]..." OR
		"THAT [accused full name] stands charged that, on or about the <DATE> day of <MONTH>, <YEAR>, at or near <COMMUNITY/TOWN/CITY>, <PROVINCE>, he [or she]..." OR
		"AND FURTHER at the same time and place aforesaid, he [or she]..."
Code Section	Subject of Offence	Draft Wording
6 CDSA		"..., contrary to section 6 of the Controlled Drugs and Substances Act.

Proof of the Offence

Proving importing and exporting drugs under s. 6(1) CDSA should include: ☐ identity of accused as culprit ☐ date and time of the incident ☐ jurisdiction (incl. region and province) ☐ the culprit imported into Canada or exported from Canada a substance; ☐ the substance was included in Schedule I, II, III, IV, V or VI. ☐ it was not "authorized under the regulations";

Proving possession for the purpose of importing and exporting drugs under s. 6(2) CDSA should include: ☐ identity of accused as culprit ☐ date and time of the incident ☐ jurisdiction (incl. region and province) ☐ the culprit possessed a substance; ☐ the substance was included in Schedule I, II, III, IV, V or VI. ☐ the purpose was to export from Canada; ☐ it was not "authorized under the regulations";

Interpretation

When Offence Completed

The offence is not a "continuing offence". The act of importation is completed once the accused clears customs or when it otherwise is available to the domestic recipient.

Duress Defence

The defence of duress requires that the trier-of-fact consider safe avenues of escape, including the ability to seek the assistance of border services.

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 [importing and exporting Schedule I and II drugs] (	N/A	life incarceration
s. 6(3)(a.1) CDSA	N/A	life incarceration
s. 6(3)(b) CDSA [importing and exporting Schedule III, V and VI drugs]	summary election	18 months incarceration
s. 6(3)(b) CDSA [importing and exporting Schedule III, V and VI drugs]	indictable election	10 years incarceration
s. 6(3)(c) CDSA [importing and exporting Schedule IV drugs]	summary election	1 year incarceration
s. 6(3)(c) CDSA [importing and exporting Schedule IV drugs]	indictable election	3 years incarceration

Offences under s. 6(3)(a) are straight indictable. The maximum penalty is life incarceration.

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 incarceration under s. 6(3)(b) or 1 year incarceration under s. 6(3)(c).

Minimum Penalties

Offence(s)	Crown Election	Minimum Penalty First Offence	Minimum Penalty Subsequent Offence
s. 6(3)(a) CDSA [importing and exporting Schedule I and II drugs]	N/A	1 year incarceration	{{{4}}}
s. 6(3)(a.1) CDSA	N/A	2 years incarceration	{{{4}}}

Offences under s. 6(3)(b) and (c) 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) [importing and exporting Schedule I and II drugs]	N/A
s. 6(3)(b) [importing and exporting Schedule III, V and VI drugs] s. 6(3)(c) [importing and exporting Schedule IV drugs]	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.

Ranges

see also: Importing and Exporting Drugs (Sentencing Cases)

Ancillary Sentencing Orders

Offence-specific Orders

Order	Conviction	Description
DNA Orders	s. 6(3)(a), (a.1) or (b)	For conviction under s. 6(3)(a) or (a.1), a DNA order is discretionary as a secondary designated offence listed under s. 487.04 (a) or (b). If an offence under s. 6(3)(b) is prosecuted by indictment, a DNA order is discretionary as a secondary designated offence listed under s. 487.04 (a) or (b).
Weapons Prohibition Orders	s. 6(1) or (2)	For offences under s. 6(1) or (2) 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