Importing or Exporting Drug Paraphernalia (Repealed Offence)

Importing or Exporting Drug Paraphernalia
	s. 462.2 of the Crim. Code
Election / Plea
Crown Election	Summary; 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	$100,000 and 6 months incarceration (first ofrence) $300,000 and 1 year incarceration (subsequent offence)
Reference
	Offence Elements; Sentence Digests;

< Criminal Law/Sentencing
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PART XII.1 of the Code, including this offence, was repealed by the Cannabis Act, 2018, c. 16 on October 16, 2018.^[1]

Overview

The offence of importing or exporting drug paraphernalia is a drug offence found in Part XII.1 of the Criminal Code.

Pleadings

Offence Section	Offence Type	Crown Election	Defence Election s. 536(2)
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.

Release

Offence(s)	Appearance Notice by Peace Officer s. 497	Summons by Judge or Justice s. 508(1), 512(1), or 788	Release by Peace Officer on Undertaking s. 498, 499, and 501	Release By a Judge or Justice on a Release Order s. 515 to 519	Direct to Attend for Fingerprints, etc. Identification of Criminals Act s. 2 ID Crim. Act
s. 462.2	Template:ReleaseProfileNoID

When charged under s. 462.2, 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.

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. 462.2 [importing or exporting drug paraphernalia]

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

Offence Wording

PART XII.1

INSTRUMENTS AND LITERATURE FOR ILLICIT DRUG USE

...

Offence and Punishment

Offence

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.

– CCC

Proof of the Offence

Proving importing or eporting drug paraphrenalia under s. 462.2 should include: ☐ identity of accused as culprit ☐ date and time of the incident ☐ jurisdiction (incl. region and province) ☐ the culprit imports to Canada, exports from Canada, manufacture, promotes or sells a thing ☐ that thing is an instrument or literature for illicit drug ☐ the culprit knowingly does the prohibited act

Interpretation

Misc Definitions

Definitions

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.

– CCC

Participation of Third Parties

See also: Role of the Victim and Third Parties and Testimonial Aids for Young, Disabled or Vulnerable Witnesses

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

See also: Purpose and Principles of Sentencing, Sentencing Factors Relating to the Offender, and Sentencing Factors Relating to the Offence

Maximum Penalties

Offence(s)	Crown Election	Maximum Penalty
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.

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. 462.2	any

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

Ranges

Ancillary Sentencing Orders

See also: Ancillary Orders

Offence-specific Orders

None

General Sentencing Orders

Order	Conviction	Description
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 (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 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.