Recent Cases

What Happens When A R v SW - Production of Psilocybin?

By: James M. Lutz, Q.C. & Jillian Williamson

Our criminal lawyers recently represented a young man charged with production of a controlled substance contrary to section 7 of the Controlled Drugs and Substances Act (CDSA). This section of the CDSA states:

Production of substance

7 (1) Except as authorized under the regulations, no person shall produce a substance included in Schedule I, II, III, IV or V.

(2) Every person who contravenes subsection (1)

(a) if the subject matter of the offence is a substance included in Schedule I, is guilty of an indictable offence and liable to imprisonment for life and to a minimum punishment of imprisonment for a term of three years if any of the factors set out in subsection (3) apply and for a term of two years in any other case;

(a.1) if the subject matter of the offence is a substance included in Schedule II, is guilty of an indictable offence and liable to imprisonment for life, and to a minimum punishment of imprisonment

(i) for a term of one year if the production is for the purpose of trafficking, or

(ii) for a term of 18 months if the production is for the purpose of trafficking and any of the factors set out in subsection (3) apply;

(b) [Repealed, 2018, c. 16, s. 197]

(c) if the subject matter of the offence is a substance included in Schedule III or V,

(i) is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years, or

(ii) is guilty of an offence punishable on summary conviction and liable to imprisonment for a term not exceeding eighteen months; and

(d) where the subject-matter of the offence is a substance included in Schedule IV,

(i) is guilty of an indictable offence and liable to imprisonment for a term not exceeding three years, or

(ii) is guilty of an offence punishable on summary conviction and liable to imprisonment for a term not exceeding one year.

(3) The following factors must be taken into account in applying paragraphs (2)(a) and (a.1):

(a) the person used real property that belongs to a third party in committing the offence;

(b) the production constituted a potential security, health or safety hazard to persons under the age of 18 years who were in the location where the offence was committed or in the immediate area;

(c) the production constituted a potential public safety hazard in a residential area; or

(d) the person set or placed 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.

In this case, the police sought a search warrant based on a crime stoppers tip. This request was denied by the issuing justice because the affidavit didn’t support reasonable and probable grounds to conclude my client was committing the alleged offence. However, the police continued to investigate and obtained further evidence and on the second request the warrant was granted. My client’s home was searched. Several items were seized. There was overwhelming evidence to support the allegation of production of a controlled substance.

Psilocybin is a Schedule III substance. Schedule I substances such as heroin, cocaine and fentanyl carry severe criminal penalties, usual incarceration for multiple years. Production of psilocybin is rare and the jurisprudence that analyzes criminal sanctions is limited.

Through hard work and a robust mitigation strategy, we successfully kept our client out of prison. He had the good sense to retain an experienced lawyer who analyzed the evidence, presented multiple options, and then built the best possible strategy to achieve the desired result.

This case demonstrates the fact that through hard work despite overwhelming evidence, it is possible to avoid prison. It also demonstrates that the criminal justice system is woefully behind the times. Psilocybin is being used for therapeutic purposes as well as other controlled substances such as LSD.

If you are charged with an offence contrary to the Controlled Drugs and Substances Act, it is important to have a skilled and experienced defence lawyer who is able to build the best possible strategy to advocate your interests. We are serious lawyers who defend serious allegations every single day.