|
|
|
|
DRUGS Being charges with an offence involving illegal drugs is extremely serious and you need the assistance of a lawyer. What is a Drug? There are many different definitions of what a drug is. Depending on the definition, the term "drug" can include alcohol, nicotine, or even caffeine. In this section of the publication, however, the discussion is limited to substances that could be described as "street drugs", including drugs that are illegal, or legal drugs that are quite different from those that apply to street drugs, alcohol-related offences are dealt with in a separate section of this publication. The laws about drugs are found in an Act created by the federal government, the Controlled Drugs and Substances Act (CDSA). The Controlled Drugs and Substances Act (CDSA) The CDSA is comprehensive legislation that regulates drug use in Canada. The Act includes several Schedules that classify certain categories of drugs. Schedule I includes some of the most dangerous drugs and narcotics, such as heroin and cocaine. The most serious penalties are provided for offences relating to Schedule I substances, since they represent the greatest health and social hazards. Schedule II lists marijuana and other forms of cannabis. Schedule III lists drugs such as amphetamines and LSD. Schedule IV includes drugs such as barbiturates and anabolic steroids. The substances listed in Schedule IV are not illegal to possess with a prescription. It is illegal, however, to possess a Schedule IV substance without a prescription, or to import, export, or traffic in such a substance. The law now provides for a lesser penalty for possession of small amounts of marijuana and other forms of cannabis. There is also a lighter penalty for trafficking in and for possession for the purpose of trafficking in a small amount of marijuana and other forms of cannabis. Since drugs are listed in the schedules by their chemical names, it may be necessary to talk to a pharmacist, or other expert, to determine which Schedule a particular drug falls under. The chart on page 10 lists the most common street drugs and the Schedules in which they are found. It should be noted that the CDSA covers substances other than those listed on this chart. Prescription Drug Shopping It is a criminal offence under the CDSA to falsely obtain or to falsely attempt to obtain a prescription for drugs listed in the Schedules to the Act. A person can get a prescription for drugs only if the physician is informed about all previous prescriptions for controlled substances issues within the last 30 days. The penalties under this section are harsh. If the offence is handles by summary procedure, the maximum penalty is a fine not exceeding $1000 or imprisonment for a term not exceeding six months or both. For subsequent offences, these penalties increase to $2000, one year imprisonment, or both. If the offence is dealt with by indictment, maximum penalties are even harsher. The maximum penalty depends upon the schedule in which the substance is found. For Schedule II drugs where the case has proceeded by indictment, the maximum penalty is imprisonment for five years less a day. For Schedule I drugs where the case has proceeded by indictment, the maximum penalty is seven years imprisonment.
Drug Offences The five main offences related to drugs are: possession, trafficking, possession for the purpose of trafficking, importing or exporting, and production. As well as creating the offences, the CDSA sets out the sentences for each crime. For most of the offences, the sentences given in the Act are maximums only; the actual sentence for most offenders will be less. Some offences carry a minimum sentence. That is the least a convicted person will receive. Where no minimum is stated in the Act, the judge can choose any of the sentencing alternatives allowed under the Criminal Code. The chart on page 17 outlines these drug offences and the maximum and minimum sentences set by the Criminal Code. Young people from ages 12 to 17 years inclusive are sentenced under the Young Offenders Act. The sentence that a convicted person actually receives will vary. To decide on an appropriate sentence, the judge considers such things as the character and attitude of the accused, any previous record, the circumstances of the offence, the quantity of the drug, and any other related information. Possession The offence of possession is the least serious of the drug offences. Possession means that a person has a drug in his or her custody and knows it. Possession includes more than just carrying the drug on your body. It also includes having the drug stashed away, having someone keep it for you, or even knowing about and consenting to someone in the same room or vehicle having the drug. More than one person can be charged with possession of the same drugs. To convict someone of possession, the Crown must prove three things: 1) that the substance in question is a Schedule I, II, or III drug; 2) that the person charged had control of the drug in some way; and 3) that the person charged knew or suspected that the substance was a drug, even if he or she did not know exactly what kind of drug. Except as authorized under the regulations, possession of Schedule I, II, or III drugs is illegal. The regulations authorize possession, for example, to allow for administration of a drug by prescription. There is not offence of possession for Schedule IV drugs, which include many common prescription drugs. In most cases possession is a dual offence. It can be prosecuted by either the summary conviction or the indictable procedure. This is no longer the case for possession of small amounts of marijuana and other forms of cannabis. Possession of these Schedule II substances in a small amount (the amounts are specified in Schedule VIII) is a summary conviction offence only. The actual sentences given to those who are found guilty of possession can vary a great deal. First offenders who have only a small amount of a drug in their possession often get an absolute or conditional discharge. Such a sentence means that the offender will not have a criminal record. A find, however, is common; this sentence results in a criminal record. Trafficking The CDSA defines "traffic" as "to sell, administer, give, transfer, transport, send, or deliver" a controlled substance listed in Schedules I to IV or to offer to do any of these things. "Traffic" also includes selling a prescription for the drug. This is a broad definition. It includes more than the simple act of selling a narcotic. For example, merely passing a joint to a friend is technically trafficking in a drug, although it would likely be treated as simple possession. However, the more serious charge of trafficking sometimes can be laid in circumstances where you might not expect it. In one case, under the law that was in effect before the CDSA, a man brought home drugs for his and his wife’s use. However, because the drugs were for more than just him, the situation was considered more than simple possession. He was convicted of trafficking. The law under CDSA prohibits virtually the same activities as the previous law. Trafficking is a serious offence. It carries a maximum sentence of life imprisonment for Schedule I and II substances. However, under the CDSA a lesser penalty exists for trafficking in marijuana and other forms of cannabis. Trafficking in these Schedule II drugs in a small amount (the amounts are specified in Schedule VII) carries a maximum sentence of up to five years less a day. Under the law that was in effect before the CDSA, a first offence usually resulted in a jail sentence of 3 to 9 months for the sale of small quantities of drugs such as marijuana. Judges imposed longer sentences for the sale of larger quantities of so-called "soft" drugs or for the sale of more serious drugs. Possession for the Purpose of Trafficking For this charge, the Crown must prove all the elements of possession of a drug, plus an intention to traffic in that drug. Since it is impossible for anyone to read the intention in another person’s mind, possession for the purpose of trafficking is evidenced by the quality or quantity of the drug (is it too much for personal use?), the discovery of equipment, such as scales for weighing the drug, or the way the drug is packaged (were several small bags found?). Sentences for possession for the purpose of trafficking are the same as those for trafficking. There is a lesser penalty for possession for the purpose of trafficking in a small amount of a Schedule II drug, just as there is for trafficking and for possession. Importing and Exporting Importing or exporting means taking a drug across the Canadian border. A person need not have physically carried the drug over the border. Taking part in the arrangements or the planning of the act can lead to a charge of importing. It is against the law to import or export any of the substances in Schedules I through IV. It is also against the law to import or export certain chemicals which can be employed in the manufacture of the substances listed in those schedules, except as authorized in the regulations. These chemicals are listed in Schedules V and VI. The drugs in Schedule VI are described as "precursors". The importing and exporting offences apply equally to them. Until the CDSA became law there was no control over importing and exporting these substances. Sentences vary, up to life imprisonment, depending on the drug classification, and whether the matter is treated as an indictable offence or a summary conviction offence. "Zero tolerance" rules apply to Canadians who bring any amount of a banned drug into the United States. A person who takes a drug across the U.S. border may be charged with an offence under American law. In addition to any charges, a person who uses a vehicle to transport drugs will have the vehicle confiscated. Production It is an offence to produce any of the substances listed in Schedules I, II, III, or IV. To product includes both to manufacture a chemical substance and to grow or cultivate plants, such as marijuana or opium poppies. The definition of "produce" is broad, and includes offering to produce a controlled substance. A person who grows substantial quantities or marijuana plants may also be charged with possession of marijuana for the purpose of trafficking. Possession of the Proceeds of Drug Offences A person may also be charged with possession of the proceeds of a drug offence. For example, if a person is arrested following a drug deal, and he or she is caught with money received from the sale of drugs, this charge can apply. Impaired Driving We usually think of impaired driving as an offence that results from drinking alcohol and then getting behind the wheel. But a person may be charged with impaired driving while under the influence of drugs, even if they haven’t consumed any alcohol. A person may also be charged with impaired driving when they have been drinking, even though their blood alcohol level is less than 0.08. The offence occurs when a person’s ability to drive is impaired by either alcohol or drugs. It is the effect that the drugs or alcohol has on a person, not the amount consumed. These driving offences are found in the Criminal Code, not the CDSA. Although this charge is a dual offence, the minimum sentences are the same whether the summary conviction or the indictable procedure is used. The minimum sentence for a first offence is a $600 fine. A second offence means at least 14 days in jail, and a further offence will result in a jail term of at least 90 days. The maximum sentence for a summary conviction offence is six months in jail, while the indictable procedure has a limit of five years imprisonment. If anyone is injured or killed, an impaired driver faces higher maximum sentences. A conviction for impaired driving also means the suspension of driving privileges. (More information on this offence can be found in the sections on Alcohol.) Sentencing The CDSA contains a statement that the fundamental purpose of sentencing is to contribute to the respect for the law and the maintenance of a just, peaceful and safe society. Sentencing should encourage rehabilitation of offenders and acknowledge the harm done to victims and to the community. The CDSA lists certain circumstances which make an offence more serious. Use of a weapon, violence or threats of violence and selling to or involving young people or children are examples of these aggravating circumstances. When there are aggravating circumstances the judge may choose to impose a more serious sentence, including a sentence of imprisonment. If the judge decides not to send the offender to jail, the judge must give reasons for that decision. Consequences of a Conviction A conviction for a criminal offence can have serious consequences beyond the sentence that the judge imposes. A criminal record may prevent a convicted person from following some careers or may interfere with travel plans. A person may not be allowed to work for the government or a bank, or may have difficulty entering a profession such as medicine, law, or teaching. It may not be possible to get a licence to drive a taxi. The Canadian government could refuse to issue a Canadian passport, a document that is necessary to enter most foreign countries. Even if a passport is granted, some countries will not allow people who have a criminal record to cross their border. | |||||||||||||||||||
|
