Drug Offences: Difference between revisions

Revision as of 11:57, 5 February 2019

Introduction

Drug offences are distinct from the various crimes found in the Criminal Code. Drug offences are governed primarily by the Contolled Drugs and Substances Act. This act not only defines drug offences, it sets out the rules of evidence and the investigative police powers applicable to investigations and prosecutions of drug offences.

Drug Offences

Intent to Traffic

See Drug Trafficking

Notice to Admit Certificates of Analysis

Analysis of Drugs Under the CDSA

Sentencing

Sentencing for Drug Offences

Administrative Powers Under CDSA

Regulations and Exemptions

Regulations

55 (1) The Governor in Council may make regulations for carrying out the purposes and provisions of this Act, including the regulation of the medical, scientific and industrial applications and distribution of controlled substances and precursors and the enforcement of this Act, as well as the regulation of designated devices and, without restricting the generality of the foregoing, may make regulations

(a) governing, controlling, limiting, authorizing the importation into Canada, exportation from Canada, production, packaging, sending, transportation, delivery, sale, provision, administration, possession or obtaining of or other dealing in any controlled substances or precursor or any class thereof;

(b) respecting the circumstances in which, the conditions subject to which and the persons or classes of persons by whom any controlled substances or precursor or any class thereof may be imported into Canada, exported from Canada, produced, packaged, sent, transported, delivered, sold, provided, administered, possessed, obtained or otherwise dealt in, as well as the means by which and the persons or classes of persons by whom such activities may be authorized;

(c) respecting the issuance, suspension, cancellation, duration and terms and conditions of any licence or class of licences for the importation into Canada, exportation from Canada, production, packaging, sale, provision or administration of any substance included in Schedule I, II, III, IV, V or VI or any class of those substances;

(d) respecting the issuance, suspension, cancellation, duration and terms and conditions of any permit for the importation into Canada, exportation from Canada or production of a substance included in Schedule I, II, III, IV, V or VI or any class of those substances as well as the amount of those substances or any class of those substances that may be imported, exported or produced under such a permit;

(d.1) authorizing the Minister to impose terms and conditions on any licence or any permit including existing licences or permits, and to amend those terms and conditions;

(e) prescribing the fees payable on application for any of the licences or permits;

(f) respecting the method of production, preservation, testing, packaging or storage of any controlled substance or precursor or any class thereof;

(g) respecting the premises, processes or conditions for the production or sale of any controlled substance or any class thereof, and deeming such premises, processes or conditions to be or not to be suitable for the purposes of the regulations;

(h) respecting the qualifications of persons who are engaged in the production, preservation, testing, packaging, storage, selling, providing or otherwise dealing in any controlled substance or precursor or any class thereof and who do so under the supervision of a person licensed under the regulations to do any such thing;

(i) prescribing standards of composition, strength, concentration, potency, purity or quality or any other property of any controlled substance or precursor;

(j) respecting the labelling, packaging, size, dimensions, fill and other specifications of packages used for the importation into Canada, exportation from Canada, sending, transportation, delivery, sale or provision of or other dealing in any substance included in Schedule I, II, III, IV, V or VI or any class thereof;

(k) respecting the distribution of samples of any substance included in Schedule I, II, III, IV, V or VI or any class thereof;

(l) controlling and limiting the advertising for sale of any controlled substance or precursor or any class thereof;

(m) respecting records, reports, electronic data or other documents in respect of controlled substances, precursors or designated devices that are required to be kept and provided by any person or class of persons;

(n) respecting the qualifications for inspectors and their powers, duties and functions in relation to verifying compliance or preventing non-compliance with the provisions of this Act or the regulations;

(o) respecting the qualifications for analysts and their powers and duties;

(p) respecting the detention and disposition of or otherwise dealing with any controlled substance, precursor, designated device, offence-related property or conveyance;

(q) [Repealed, 2017, c. 7, s. 40]

(r) respecting the taking of samples of substances under paragraph 31(1)(h);

(s) respecting the collection, use, retention, disclosure and disposal of information;

(t) respecting the making, serving, filing and manner of proving service of any notice, order, report or other document required or authorized under this Act or the regulations;

(u) authorizing the Minister to add to or delete from, by order, a schedule to Part J of the Food and Drug Regulations any item or portion of an item included in Schedule V;

(v) prescribing forms for the purposes of this Act or the regulations;

(w) establishing classes or groups of controlled substances, precursors or designated devices;

(x) respecting the provision of information under section 45.1;

(y) respecting the measures referred to in section 45.2;

(y.1) respecting the review of orders under section 45.4;

(z) exempting, on any terms and conditions that are specified in the regulations, any person or class of persons or any controlled substance, precursor, designated device or any class of controlled substances, precursors or designated devices from the application of all or any of the provisions of this Act or the regulations;

(z.01) respecting the registration of the importation of any designated device or class of designated devices, including the time that proof of registration must be provided; and

(z.1) prescribing anything that, by this Act, is to be or may be prescribed.

(1.1) [Repealed, 2017, c. 7, s. 40]

Regulations

(1.2) The Governor in Council may make regulations for carrying out the purposes of section 56.1, including

(a) defining terms for the purposes of that section;

(b) [Repealed, 2017, c. 7, s. 40]

(c) respecting any information to be submitted to the Minister and the manner in which it is to be submitted;

(d) respecting the circumstances in which an exemption may be granted;

(e) respecting requirements in relation to an application for an exemption made under subsection 56.1(1); and

(f) respecting terms and conditions in relation to an exemption granted under subsection 56.1(1).

Regulations pertaining to law enforcement

(2) The Governor in Council, on the recommendation of the Minister of Public Safety and Emergency Preparedness, may make regulations that pertain to investigations and other law enforcement activities conducted under this Act by a member of a police force or of the military police and other persons acting under the direction and control of the member and, without restricting the generality of the foregoing, may make regulations

(a) authorizing, for the purposes of this subsection,
(i) the Minister of Public Safety and Emergency Preparedness or the provincial minister responsible for policing in a province, as the case may be, to designate a police force within their jurisdiction, or

(ii) the Minister of National Defence to designate military police;

(b) exempting, on any terms and conditions that are specified in the regulations, a member of a police force or of the military police that has been designated under paragraph (a), and other persons acting under the direction and control of the member, from the application of any provision of Part I or the regulations;

(c) respecting the issuance, suspension, cancellation, duration and terms and conditions of a certificate, other document or, in exigent circumstances, an approval to obtain a certificate or other document, that is issued to a member of a police force or of the military police that has been designated under paragraph (a) for the purpose of exempting the member from the application of any provision of this Act or the regulations;

(d) respecting the detention, storage and disposition of or other dealing with any controlled substance or precursor;

(e) respecting records, reports, electronic data or other documents in respect of a controlled substance or precursor that are required to be kept and provided by any person or class of persons; and

(f) prescribing forms for the purposes of the regulations.

Regulations pertaining to law enforcement under other Acts

(2.1) The Governor in Council, on the recommendation of the Minister of Public Safety and Emergency Preparedness, may, for the purpose of an investigation or other law enforcement activity conducted under another Act of Parliament, make regulations authorizing a member of a police force or of the military police or other person under the direction and control of the member to commit an act or omission — or authorizing a member of a police force or of the military police to direct the commission of an act or omission — that would otherwise constitute an offence under Part I or the regulations and, without restricting the generality of the foregoing, may make regulations

(a) authorizing, for the purposes of this subsection,
(i) the Minister of Public Safety and Emergency Preparedness or the provincial minister responsible for policing in a province, as the case may be, to designate a police force within their jurisdiction, or

(ii) the Minister of National Defence to designate military police;

(b) exempting, on any terms and conditions that are specified in the regulations, a member of a police force or of the military police that has been designated under paragraph (a), and other persons acting under the direction and :control of the member, from the application of any provision of Part I or the regulations;

(c) respecting the issuance, suspension, cancellation, duration and terms and conditions of a certificate, other document or, in exigent circumstances, an approval to obtain a certificate or other document, that is issued to a member of a police force or of the military police that has been designated under paragraph (a) for the purpose of exempting the member from the application of any provision of Part I or the regulations;

(d) respecting the detention, storage and disposition of or other dealing with any controlled substance or precursor;

(e) respecting records, reports, electronic data or other documents in respect of a controlled substance or precursor that are required to be kept and provided by any person or class of persons; and

(f) prescribing forms for the purposes of the regulations.

Incorporation by reference

(3) Any regulations made under this Act incorporating by reference a classification, standard, procedure or other specification may incorporate the classification, standard, procedure or specification as amended from time to time, and, in such a case, the reference shall be read accordingly.
1996, c. 19, s. 55; 2001, c. 32, s. 55; 2005, c. 10, s. 15; 2015, c. 22, s. 4; 2017, c. 7, s. 40.

Exemption by Minister

56 (1) The Minister may, on any terms and conditions that the Minister considers necessary, exempt from the application of all or any of the provisions of this Act or the regulations any person or class of persons or any controlled substance or precursor or any class of either of them if, in the opinion of the Minister, the exemption is necessary for a medical or scientific purpose or is otherwise in the public interest.

Exception

(2) The Minister is not authorized under subsection (1) to grant an exemption for a medical purpose that would allow activities in relation to a controlled substance or precursor that is obtained in a manner not authorized under this Act to take place at a supervised consumption site.
1996, c. 19, s. 56; 2015, c. 22, s. 5; 2017, c. 7, s. 41.

Exemption for medical purpose — supervised consumption site

56.1 (1) For the purpose of allowing certain activities to take place at a supervised consumption site, the Minister may, on any terms and conditions that the Minister considers necessary, exempt the following from the application of all or any of the provisions of this Act or the regulations if, in the opinion of the Minister, the exemption is necessary for a medical purpose:

(a) any person or class of persons in relation to a controlled substance or precursor that is obtained in a manner not authorized under this Act; or

(b) any controlled substance or precursor or any class of either of them that is obtained in a manner not authorized under this Act.

Application

(2) An application for an exemption under subsection (1) shall include information, submitted in the form and manner determined by the Minister, regarding the intended public health benefits of the site and information, if any, related to

(a) the impact of the site on crime rates;

(b) the local conditions indicating a need for the site;

(c) the administrative structure in place to support the site;

(d) the resources available to support the maintenance of the site; and

(e) expressions of community support or opposition.

Subsequent application

(3) An application for an exemption under subsection (1) that would allow certain activities to continue to take place at a supervised consumption site shall include any update to the information provided to the Minister since the previous exemption was granted, including any information related to the public health impacts of the activities at the site.

Notice

(4) The Minister may give notice, in the form and manner determined by the Minister, of any application for an exemption under subsection (1). The notice shall indicate the period of time — not less than 45 days or more than 90 days — in which members of the public may provide the Minister with comments.

Public decision

(5) After making a decision under subsection (1), the Minister shall, in writing, make the decision public and, if the decision is a refusal, include the reasons for it. 2015, c. 22, s. 5; 2017, c. 7, s. 42.

56.2 A person who is responsible for the direct supervision, at a supervised consumption site, of the consumption of controlled substances, may offer a person using the site alternative pharmaceutical therapy before that person consumes a controlled substance that is obtained in a manner not authorized under this Act. 2017, c. 7, s. 42.

Miscellaneous

Powers, duties and functions of Minister or Minister of Public Safety and Emergency Preparedness

57 The Minister’s powers, duties or functions under this Act or the regulations — and those of the Minister of Public Safety and Emergency Preparedness under the regulations — may be exercised or performed by any person designated, or any person occupying a position designated, for that purpose by the relevant Minister.
1996, c. 19, s. 57; 2005, c. 10, s. 16.

Paramountcy of this Act and the regulations

58 In the case of any inconsistency or conflict between this Act or the regulations made under it, and the Food and Drugs Act or the regulations made under that Act, this Act and the regulations made under it prevail to the extent of the inconsistency or conflict.

59 [Repealed, 2017, c. 7, s. 44]

Amendments to Schedules

Power to amend schedules

60 The Governor in Council may, by order, amend any of Schedules I to IV, VI and IX by adding to them or deleting from them any item or portion of an item, if the Governor in Council considers the amendment to be necessary in the public interest.
1996, c. 19, s. 60; 2017, c. 7, s. 45; 2018, c. 16, ss. 203, 206.

Schedule V

60.1 (1) The Minister may, by order, add to Schedule V any item or portion of an item for a period of up to one year, or extend that period by up to another year, if the Minister has reasonable grounds to believe that it

(a) poses a significant risk to public health or safety; or

(b) may pose a risk to public health or safety and
(i) is being imported into Canada with no legitimate purpose, or

(ii) is being distributed in Canada with no legitimate purpose.

Deletions

(2) The Minister may, by order, delete any item or portion of an item from Schedule V. 2017, c. 7, s. 45.

Relationship to Other Acts

Transitions Provisions

Transitional Provisions

References to prior enactments

61 Any reference in a designation by the Minister of Public Safety and Emergency Preparedness under Part VI of the Criminal Code to an offence contrary to the Narcotic Control Act or Part III or IV of the Food and Drugs Act or any conspiracy or attempt to commit or being an accessory after the fact or any counselling in relation to such an offence shall be deemed to be a reference to an offence contrary to section 5 (trafficking), 6 (importing and exporting) or 7 (production) of this Act, as the case may be, or a conspiracy or attempt to commit or being an accessory after the fact or any counselling in relation to such an offence.
1996, c. 19, s. 61; 2001, c. 32, s. 56; 2005, c. 10, s. 34.

Sentences for prior offences

62 (1) Subject to subsection (2), where, before the coming into force of this Act, a person has committed an offence under the Narcotic Control Act or Part III or IV of the Food and Drugs Act but a sentence has not been imposed on the person for that offence, a sentence shall be imposed on the person in accordance with this Act.

Application of increased punishment

(2) Where any penalty, forfeiture or punishment provided by the Narcotic Control Act or section 31 or Part III or IV of the Food and Drugs Act, as those Acts read immediately before the coming into force of sections 4 to 9 of this Act, is varied by this Act, the lesser penalty, forfeiture or punishment applies in respect of any offence that was committed before the coming into force of those sections.

Validation

63 Every authorization issued by the Minister under subsection G.06.001(1) or J.01.033(1) of the Food and Drug Regulations or subsection 68(1) of the Narcotic Control Regulations before the coming into force of sections 81 and 94 of this Act is hereby declared to have been validly issued and every such authorization that is in force on the coming into force of sections 81 and 94 of this Act shall continue in force under this Act until it is revoked, as if it were an exemption made under section 56 of this Act.

@@ Line 27: / Line 27: @@
 ; Regulations
 (1) The Governor in Council may make regulations for carrying out the purposes and provisions of this Act, including the regulation of the medical, scientific and industrial applications and distribution of controlled substances and precursors and the enforcement of this Act, as well as the regulation of designated devices and, without restricting the generality of the foregoing, may make regulations
-(a) governing, controlling, limiting, authorizing the importation into Canada, exportation from Canada, production, packaging, sending, transportation, delivery, sale, provision, administration, possession or obtaining of or other dealing in any controlled substances or precursor or any class thereof;
+:(a) governing, controlling, limiting, authorizing the importation into Canada, exportation from Canada, production, packaging, sending, transportation, delivery, sale, provision, administration, possession or obtaining of or other dealing in any controlled substances or precursor or any class thereof;
 :(b) respecting the circumstances in which, the conditions subject to which and the persons or classes of persons by whom any controlled substances or precursor or any class thereof may be imported into Canada, exported from Canada, produced, packaged, sent, transported, delivered, sold, provided, administered, possessed, obtained or otherwise dealt in, as well as the means by which and the persons or classes of persons by whom such activities may be authorized;
 :(c) respecting the issuance, suspension, cancellation, duration and terms and conditions of any licence or class of licences for the importation into Canada, exportation from Canada, production, packaging, sale, provision or administration of any substance included in Schedule I, II, III, IV, V or VI or any class of those substances;