6.2 Mandatory Minimum Penalties for Particular Drug Offences under the Controlled Drugs and Substances Act

The purpose of this guideline is to provide direction to Crown counsel regarding the 2012 amendments to the Controlled Drugs and Substances Act ( CDSA ) that add mandatory minimum penalties ( MMP s) for particular drug offences in certain circumstances. Footnote 1 The amendments are contained in the Safe Streets and Communities Act (Act). These amendments apply only to offences committed after the coming into force of this legislation.

2. Impact on Prosecutions

As noted below, there is a requirement that the Crown provide notice of the intention to seek the MMP and the intention to prove the aggravating factors. There is no time limit provided for the giving of notice, except that it be before the accused enters a plea; therefore it is recommended that Crown counsel review their files early-on in order to ensure that notice has been provided to the accused, and if not, provide one as soon as possible. Each regional office should coordinate with their local police forces the specific procedure to be followed for providing this notice to the accused, including the possibility of the police providing this notice as a matter of course at the time of arrest.

With the implementation of this MMP regime, Crown counsel may be under increased pressure from defence counsel to negotiate a plea agreement that would not require that an MMP be imposed in a particular prosecution. The guiding principle for Crown counsel during plea negotiations is not to undermine the MMP regime during the process. Crown counsel are reminded that they are obliged to present all available provable facts to the court, in a firm but fair manner, in order to ensure the integrity of the prosecution throughout the litigation process. Footnote 2 Crown counsel must also conduct plea and sentence negotiations in a manner consistent with the policies set out in the PPSC Deskbook. In particular, the Deskbook states that an agreement to withhold from the court facts that are provable and relevant, and that aggravate the offence is not acceptable. Footnote 3

In keeping with the will of Parliament, it will generally be inappropriate to take a plea to a lesser offence, or to stay or withdraw a charge, when it is done with the intent of avoiding the imposition of an MMP where the evidence supports the original charge. In situations where the facts supporting the MMP are present and provable, counsel should generally prosecute that offence and the court will impose the MMP . Also, where there are two possible charges in a prosecution and one has an MMP and one does not, or both have an MMP but one is higher than the other, the one with the MMP or the one with the higher MMP should proceed. Footnote 4 In cases where there are two charges, both of which are punishable by MMP s, counsel should not take a plea to one MMP charge, and stay the other charge, if the sentence for the remaining MMP charge is less than the sentence that would have been imposed following conviction on both charges. Footnote 5

2.1. Stay, withdrawal or accepting plea to lesser offence

If counsel wishes to stay or withdraw a charge with an MMP , or to take a plea to a lesser offence, the prior consent of the Chief Federal Prosecutor ( CFP ) or his/her delegate is required. Counsel must provide the CFP with a written memorandum setting out the basis for the stay, withdrawal or plea and explaining why the proposed course of action is in the public interest. If the reason for the stay, withdrawal or plea to a lesser offence is due to the evidentiary threshold for prosecution not being met ( i.e. no reasonable prospect of conviction), consent is not required.

2.2. Non-reliance upon notice

In situations in which Crown counsel intends to proceed with the prosecution of an offence with an MMP but considers that the imposition of an MMP would likely result in an unduly harsh consequence under the circumstances of a particular case, counsel may exercise discretion not to rely on the notice of intention to seek the MMP . For example, Crown counsel might consider exercising their discretion in proving the notice of intent in situations where the imposition of an MMP would be an unduly harsh consequence for someone who has special needs, such as a medical condition that would make jail particularly onerous. In such cases, counsel may do so only with the prior consent of their CFP or his/her delegate. Counsel shall nonetheless still present the aggravating factor(s) to the court if they are relevant and provable.

2.3. Obtaining prior consent not feasible

In exceptional circumstances, where it is not feasible for counsel to obtain the CFP ’s consent beforehand, Crown counsel may stay, withdraw, or agree to a plea to a lesser offence on a charge with an MMP . In such circumstances, counsel must provide to the CFP , as soon as practicable after doing so, a written memorandum demonstrating how the proposed course of action was in the public interest and why it was not feasible to seek consent beforehand. Footnote 6 Counsel must also ensure that the memorandum is placed on the file.

3. Background

The Act amends the CDSA to provide for MMP s when an accused is convicted of certain serious drug offences including trafficking, possession for the purpose of trafficking, importing and exporting, and production. This is the case only when the charges involve drugs listed in Schedule I and Schedule II of the CDSA . It should be noted that GHB and Flunitrazepam (Rohypnol), most commonly known as the “date-rape drugs,” as well as all of the amphetamine drugs have been moved from Schedule III to Schedule I as a result of the Act. Also, the maximum penalty for production of Schedule II drugs has been increased from 7 to 14 years.

In general, the MMP will apply where there is an aggravating factor present, including where the production of the drug constituted a potential security, health or safety hazard. MMP s are also triggered by trafficking, exporting, importing or producing certain quantities of either Schedule I or Schedule II substances. For the production of between 6 and 200 marihuana plants, the Crown must prove by way of expert evidence that the production was for the purpose of trafficking.

The chart attached as Appendix A to this note sets out in detail, by quantity and other aggravating factors, the penalties mandated for both Schedule I and Schedule II drugs. In particular, the aggravating factors involve offences committed:

Aggravating Factors List A:

• for the benefit of, at the direction of, or in association with a criminal organization;
• involving use or threat of violence;
• involving use or threat of use of weapons;
  • by someone who has been previously convicted of a designated substance offence, Footnote 7 or has served a term of imprisonment for a designated substance offence, Footnote 8 within the previous ten years; Footnote 9 and

  Aggravating Factors List B:

  • in or near a school, on or near school grounds, or in or near an area normally frequented by persons under the age of 18;
  • in a prison;
  • using the services of, or involving, a person under 18;
  • in relation to a youth ( e.g. , selling to a youth).

  In relation to the production offences, MMP s may be imposed where the following security, health and safety factors are:

  • the accused used real property that belongs to a third party to commit the offence;
  • the production constituted a potential security, health or safety hazard to children who were in the location where the offence was committed or in the immediate area;
  • the production constituted a potential public safety hazard in a residential area; or
  • the accused placed or set a trap.

  It should be noted that a court is not required to impose an MMP unless it is satisfied that the offender, before entering a plea, was notified of the possible imposition of an MMP for the offence in question and of the Attorney General’s intention to prove any factors in relation to the offence that would lead to the imposition of an MMP . Footnote 10

  The Act also allows a court to delay sentencing while an offender with a substance use disorder either participates in a drug treatment court program approved by the Attorney General, or attends a treatment program approved by the province under the supervision of the court as outlined in s 720(2) of the Criminal Code . If the person successfully completes the treatment program, the court is not required to impose the MMP for the offence. Footnote 11

  4. Conclusion

  Crown counsel must be aware of the facts in a given case that may give rise to the imposition of an MMP , ensure that notice has been given before the matter proceeds, and be prepared to prove the aggravating factors present in the case. Throughout this process, Crown counsel are duty bound to present to the court all provable aggravating facts that are relevant to the prosecution.

  Appendix A - Mandatory Minimum Penalties for Serious Drug Offences

  1 year for Schedule I under 1 kg if

  1 year for Schedule I under 1 kg if

  1. the offence is committed for the purpose of trafficking;
  2. the person abused a position of trust or authority; or
  3. the person had access to an area that is restricted to authorized persons and used that access.

  One year for Schedule II if

  One year for Schedule II if

  Table notes

  Table note 1

  Aggravating Factors List A

  The aggravating factors include offences committed:

  • for the benefit of, at the direction of, or in association with a criminal organization;
  • involving use or threat of violence;
  • involving use or threat of use of weapons;
  • by someone who was previously convicted of a designated drug offence or had served a term of imprisonment for a designated substance offence within the previous ten years; and
  • through the abuse of authority or position or by abusing access to restricted area to commit the offence of importation/exportation and possession to export.

  Aggravating Factors List B

  The aggravating factors include offences committed:

  • in or near a school, on or near school grounds, or in or near an area normally frequented by persons under the age of 18;
  • in a prison;
  • using the services of, or involving, a person under 18;
  • in relation to a youth ( e.g. selling to a youth).

  Health and Safety Factors

  • the accused used real property that belongs to a third party to commit the offence;
  • the production constituted a potential security, health or safety hazard to persons under the age of 18 who were in the location where the offence was committed or in the immediate area;
  • the production constituted a potential public safety hazard in a residential area;
  • the accused placed or set a trap, device or other thing that is likely to cause death or bodily harm to another person in the location where the offence was committed or in the immediate area, or permitted such a trap, device or other thing to remain or be placed in that location or area.

  Footnotes

  Footnote 1

  Safe Streets and Communities Act , SC 2012, c 1.

  See Boucher v The Queen, [1955] SCR 16 at 23-24 : “It cannot be over-emphasized that the purpose of a criminal prosecution is not to obtain a conviction; it is to lay before a jury what the Crown considers to be credible evidence relevant to what is alleged to be a crime. Counsel have a duty to see that all available legal proof of the facts is presented: it should be done firmly and pressed to its legitimate strength, but it must also be done fairly.”

  See the PPSC Deskbook guideline “3.7 Resolution Discussions” at para 3.5 c).

  Examples include: (A) Accused charged with ss 7(1) and 5(2) for a 300 plant grow operation, no criminal record, and plants grown in his or her own home. Section 7(1) has an MMP of 12 months and the s 5(2) has no MMP . Crown counsel shall not withdraw or stay the s 7(1) charge. (B) Accused charged with ss 7(1) and 5(2) of methamphetamine with the aggravating factors of the lab being in a rental home and using a 16 year old to operate it. The s 7(1) charge has a 3-year MMP while the s 5(2) charge has a 2-year MMP . The Crown shall not withdraw or stay the s 7(1) charge.

  Example: If each offence is punishable by an MMP of two years and, based on the facts, the sentences would be consecutive rather than concurrent, counsel cannot take a plea for less than four years for the one MMP offence without the approval of the CFP .

  Such circumstances must be understood as exceptional. Crown counsel are expected to make efforts to contact the CFP or his/her delegate in person, by email or by telephone, when necessary, to seek consent in all circumstances. Crown counsel may only stay, withdraw or agree to a plea on a change with an MMP in circumstances where, after making reasonable attempts to contact the CFP or his/or her delegate and where obtaining an adjournment of the case in order to seek the consent would not be feasible and might otherwise jeopardize the prosecution.

  Refers to a “designated substance offence” as defined in part 2 of the CDSA .

  This is interpreted to mean the warrant expiry date.

  This is to be interpreted as ten years preceding the commission of the offence.

  See Bill C-10, s 42 which adds a new s 8 to the CDSA .

  See Bill C-10, s 43(2) which provided the amendment to s 10(2) and the new ss 10(4) and (5) of the CDSA .

  Date modified: 2020-03-06