Experienced Criminal Lawyers

Are There Mandatory Minimum Punishments in Drug Cases?

By: Jillian Williamson

A commonly asked question by our clients facing drug offences is about the potential length of prison sentences, if convicted.  Alberta has several starting point sentences for specific drugs.  The Controlled Drugs and Substances Act (CDSA) sets out the available sentences. Therefore, our answer must blend both the case law and the legislation.  In 2012, Parliament adopted the Safe Streets and Communities Act which set out mandatory minimum sentences in drug cases. However, since that time, several provinces have struck down portions of this legislation.

The most commonly charged offences are trafficking and possession for the purposes of trafficking. There is a mandatory minimum sentence of one-year imprisonment for the following offences that result in a conviction:

• Section 5(3)(a)(i)(A) which is possession or trafficking for a criminal organization
• Section 5(3)(a)(i)(B) which is possession or trafficking with the use or threats of violence
• Section 5(3)(a)(i)(C) which is possession or trafficking with the use or threats with a weapon (Note: The British Columbia courts have struck this provision)

*Possession is possession for the purpose of trafficking

There is a mandatory minimum sentence of two years imprisonment under the following offences that result in a conviction:

• Section 5(3)(a)(ii)(A) which is possession or trafficking in or near a school or an area frequented by children (Note: The British Columbia Court of Appeal has struck this provision as well as the Superior Court in Ontario).
• Section 5(3)(a)(ii)(B) which is possession or trafficking while in prison (Note: this provision has been upheld in Saskatchewan and in Newfoundland).
• Section 5)3)(a)(ii)(C) which is possession or trafficking involving a child (Note: this provision has been struck down in British Columbia).

Possession for the purpose of trafficking and trafficking convictions in Alberta generally result in a jail or prison sentence. The length of which will depend on the circumstances of the offence (type of controlled substance, the amount of the substance, and other factors) and moral blameworthiness of the offender.

Drug Trafficking

Drug trafficking has been defined and interpreted to mean more than selling drugs for a profit. The CDSA has set out the following activities to include trafficking:

• Selling, administering, giving, transporting, sending or delivering the substance
• Selling authorization to obtain the substance

It is important to note that a person can be convicted of trafficking even if the person only gave or delivered the substance to another person who then committed trafficking.  A person may be convicted of trafficking if he or she gave the substance to a friend to hold for safekeeping. An exchange of money is not required in order to be convicted.

Possession for the Purpose of Trafficking

Possession for the Purpose of Trafficking offences are laid and prosecuted when it is alleged that someone had physical control, joint possession or constructive possession over the substances. The amount of the substance is what leads to the offence of possession for the purpose of trafficking as opposed to simple possession. The CDSA has set the penalties for this offence as the same for trafficking.

Drug Production

Section 7 of the CDSA sets out this offence as well as the mandatory minimum prison sentences that are available.

• Section 7(2)(a) which is a conviction of production of a Schedule I substance results in a minimum of two years imprisonment.
• Section 7(2)(a) which is a conviction of production while using real property belonging to a third party, or with the potential to harm the security health or case a safety hazard to children or in a residential area, or using traps results in a minimum sentence of three years imprisonment.

Production of Schedule II substances result in potentially a 1 year to 18-month mandatory minimum sentence in similar circumstances as above.

Drug Importing and Exporting

Section 6 of the CDSA sets out the offences for importing and exporting controlled substances. There is a one year mandatory minimum sentence if the substance is a Schedule I and it is committed for the purpose of trafficking. Note: this provision has been struck down by an Ontario Superior Court. Finally, if the amount of the substance exceeds 1 kg then there is a mandatory minimum of 2 years. Note: an Ontario Superior Court has struck this provision but at the time of writing, that decision has been heard by the Supreme Court of Canada and we are awaiting the decision.

Sentencing and penalties for drug offences is complex. The nature of the drug, the quantity and other circumstances will shift the sentencing analysis greatly. Finally, while it is a fact that most provinces have mandatory minimums in place at the moment this must be carefully considered by your lawyer. Your case may be the right type of case to launch an argument that the mandatory minimum should not apply to you.

When is the Right Time to Get a Lawyer

Drug-related offences are serious allegations and have serious and potentially devasting consequences. If you find yourself charged with any of these drug crimes, you need a serious lawyer who has experience defending these allegations. If you learn that you are under investigation for a drug-related offence, but you have not yet been charged, you should contact us immediately so that we can give you strategic legal advice.

The lawyers at Alberta Legal are serious and detailed-oriented who defend serious allegations every single day. If you have been charged with a drug offence, contact us today.