What are Drug Offences?​

This article is a brief and general overview about Drug Offences, in particular, the possession of illegal drugs/substances and the trafficking of illegal drugs/substances.

 

A Drug offence is any offence related to the possession, importation, production and/or selling of controlled drugs and substances. The most common types of drug offences are drug possession, and drug trafficking. Under section 4(1) of the Controlled Drugs and Substances Act, it is illegal to possess controlled drugs and substances, and under section 5(1) of the Controlled Drugs and Substances Act, it is illegal to traffic controlled drugs and substances. It is also important to understand how the law classifies different drugs, since the penalties and punishments depending on the drug being possessed and/or trafficked. 

 

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What are the different drug classes?

In Canada, there are 6 main drug classes (also known as schedules) that are relevant to Canadian criminal law. However, out of these 6 drugs classes, Schedule IV, V, and VI drugs/substances are mainly medicinal, and so, are not as criminalized in comparison to Schedule I, II, and III drugs/substances. It is important to note that according to the law, it is illegal to possess and/or traffic Schedule I, II, and III drugs. They are: 

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Schedule I: This category includes fentanyl, cocaine, heroin, methamphetamine, codeine, morphine, GHB, and opium

Schedule II: This category includes Cannabis

Schedule III: This category includes LSD and psilocybin (or magic mushrooms)

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What are the legal elements needed to prove a Drug possession offence?​

For every criminal case, the Crown must prove at least 4 things: 

1. Identity: The Crown must prove that you are the person who committed the crime. 

2. Jurisdiction: You are being charged in the correct court. 

3. Date: The Crown must prove the date when the crime took place when the police say it did. 

4. The elements of the Crime. 

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In this case, the Crown must prove the following elements of a Drug possession offence:

a) That you (the accused) had in your direct possession/control a Schedule I, II, or III drug/substance

b) That you did not have authorization to have the Schedule I, II, or III drug/substance in your possession

c) That you were aware that the drug/substance in your possession was illegal

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It is important to note that a person can still be charged under the law for possession of drugs even if the drugs DO NOT belong to them. According to the law, if drugs are found in a person's control, they can still be charged with the offence. 

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What are some possible defences for a Drug possession offence? 

Some of the most common defences for Drug possession offences include arguing that whilst collecting evidence against you (the accused), the police violated your Charter of Rights & Freedoms. If there are any charter violations involved, then the case is immediately dismissed.

 

Other common legal defences include arguing that you (the accused) did not have the knowledge of illegal drugs/substances and that you did not have the control over the illegal drugs/substances. ​

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What are the penalties for Drug possession offences? ​

Drug possession penalties are based upon the drug/substance found in your control. Depending on the severity of the drug/substance, the penalty for the offence can vary. In all cases, it is the Crown's decision to charge you (the accused) either summarily or by indictment depending on the facts and circumstances of your case. 

 

If you are found with possessing a Schedule I drug/substance, then it is the Crown's choice to charge you either summarily or by indictment depending on the facts and severity of your case. If the Crown proceeds by summary, then for first-time offenders, there is a maximum fine of $1,000 and a maximum jail sentence of 6 months. However, for repeat offences, there is a maximum fine of $2,000 and/or a maximum jail sentence of 1 year. It should also be noted that for more serious cases, the Crown can proceed by indictment, and as a result, the penalties are more severe, with a maximum sentence of 7 years imprisonment. 

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If you are found with possessing a Schedule II drug/substance, then it is the Crown's choice to charge you either summarily or by indictment depending on the facts and circumstances of your case. If the Crown proceeds by summary, then for first time offenders, there is a maximum fine of $1,000 and/or a maximum jail sentence of 1 year. For repeat offences, there is a maximum fine of $2,000 and/or a 

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• If Crown proceeds by summary conviction:

  • For a first offence: Maximum fine of $1000 or a term of imprisonment not exceeding 1 year, or both.

  • For a subsequent offence: Maximum fine of $2000 or a term of imprisonment not exceeding 1 year, or both.

• If Crown proceeds by indictment: Maximum punishment of 5 years less a day imprisonment.

Schedule III Substance

• If Crown proceeds by summary conviction:

  • For a first offence: Maximum fine of $1000 or a term of imprisonment not exceeding 1 year, or both.

  • For a subsequent offence: Maximum fine of $2000 or a term of imprisonment not exceeding 1 year, or both.

• If Crown proceeds by indictment: Maximum punishment of 3 years imprisonment.

 

DUI offences violate two different legislatures (laws), there are two separate penalties an individual can face. 

Under the Ontario Highway Traffic Act, individuals will face administrative penalties whereas under section 320.14 of the Criminal Code of Canada, individuals will be charged with a criminal offence for impaired driving. Individuals who drive whilst impaired will face penalties under both laws. 

 

Under the Ontario Highway Traffic Act, for a first time offence, individuals will face a minimum licence suspension of 1 year; and must attend a mandatory education program, and a 1 year ignition interlock program. For individuals who are facing a second DUI offence, they will face a licence suspension for at least 3 years; and must attend a mandatory education program, and a 3 year ignition interlock program. If an individual is facing their third DUI offence, then the penalties are very severe. After a third DUI conviction, individuals will face a lifetime driving suspension; and must attend a mandatory education, and a 6 year ignition interlock program. 

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Furthermore, under section 320.14 of the Criminal Code of Canada, individuals who commit a DUI related offence for the first time face a mandatory minimum fine of $1,000. For the first offence, the maximum penalty is 10 years imprisonment. For a second DUI offence, an individual will face a mandatory minimum sentence of 30 days, and could also possibly face a maximum penalty of 10 years imprisonment. If an individual commits a DUI related offence for a third time, then the penalties become the most severe, with a minimum mandatory sentence of 2 months jail, and possible maximum of 10 years imprisonment. It is also important to note that if as a result of the DUI related offence, the driver causes bodily harm to someone else, or causes the death of another person, then the severity of the offence increases, which in turn, can result in harsher mandatory minimum sentences and more severe penalties. 

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Common FAQs: ​​

1. What do you do if you have been charged with a DUI related offence? ​

If you have been charged with a DUI related offence by the police, first contact us. Once retained, Shankar Law Office will continue to advise and guide you so that you can receive the best legal defence for this charge. 

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