The Canadian criminal justice system comes down heavily on anyone convicted of a serious drug offence.

Since 2012, mandatory minimum sentences have applied to some of the most serious drug-related offences, such as drug production, drug trafficking and importing/exporting. Even some types of possession can lead to a mandatory minimum sentence if aggravating circumstances are present.

This means that judges must impose prison sentences on anyone convicted of these crimes, regardless of the circumstances or how convincing the mitigation pleas are.

If you’ve been charged with a serious drug crime in Ontario, you should understand the potential consequences of a conviction for the rest of your life — and take steps to defend the charges.

Let’s take a closer look at which offences have mandatory minimums attached, the aggravating factors that can affect a sentence and what you can expect if you’re convicted…

Drug offences where mandatory minimum penalties apply

Since the passage of the Safe Streets and Communities Act in 2012, certain drug offences lead to an automatic custodial sentence in Canada.

These are offences where Schedule 1/Schedule 2 substances and aggravating factors apply, such as involvement in organized crime, the use of violence, targeting youth, public security, health, or safety hazards are present or previous conviction(s) appear on a suspect’s criminal record.

The Controlled Drugs and Substances Act (CDSA) lists all controlled substances and categorizes the drugs according to their potential danger. The Act also defines laws on and associated penalties for the possession, trafficking, and import/export of drugs.

Substances listed in Schedule I of the CDSA include cocaine, opium, heroin, oxycodone, and methamphetamine. These are considered to have a high potential for abuse. Cannabis is listed as a Schedule 2 drug (including its preparations and derivatives).

The four main categories of serious drug crimes for which mandatory minimum sentences apply are:

A conviction for the production of a Schedule I substance will lead to a mandatory minimum sentence of two or three years, depending on whether health and safety hazards were present.

Note that while possession of marijuana for recreational and medical purposes has been legalized in Canada within certain limits, the production of more than five marijuana plants attracts a mandatory minimum sentence of between six months and three years, depending on the number of plants.

Under the terms of the CDSA, drug trafficking involves the following activities:

  1. selling, administering, giving, transferring, transporting, sending, or delivering the substance,
  2. selling authorization to obtain the substance,
  3. offering to do anything mentioned in paragraphs (a) and (b) above.

Convicted drug traffickers are shown little mercy by the justice system in Ontario. A mandatory minimum sentence of one or two years in prison applies (depending on the aggravating factors) and the sentence can extend to life imprisonment in the most serious circumstances.

Possession for the purpose of trafficking is when a person has physical control over a drug with the intention of that drug being trafficked.

The offence carries the same mandatory minimum sentences as for trafficking, namely one or two years in prison.

Importing or exporting any substance listed in Schedules I-VI into or out of Canada is also a criminal offence with mandatory minimum penalties.

The penalty for the possession of drugs for export is the same as actually importing or exporting the drug: one year for both Schedule I and Schedule II drugs and two years if the amount of the drug exceeds 1kg.

What aggravating factors trigger mandatory minimum drug sentences?

For the mandatory minimum sentences described above to be triggered, the offence must be accompanied by an “aggravating factor”.

The most important of these aggravating factors are:

  1. The quantity of controlled substances
  2. Other circumstances, which are further broken down into two groups:

(i) Lists A and List B:

  • List A includes drug-related offences committed:
  • for the benefit of a criminal organization or at the direction or in association with such an organization,
  • involving the use of violence or threat of violence,
  • involving weapons or threat or their use,
  • by individuals who have been convicted of a serious drug offence at any time in the past ten years,
  • by abusing authority or position or by abusing access to a restricted area.
  • List B concerns youth and correctional institutions and includes crimes committed:
    • in or near schools or in an area frequented by youth,
    • using the services of persons under 18 years of age,
    • in relation to youth,
    • in prison.

(ii) The second group relates to drug offences that include situations where the production of Schedule 1 or Schedule 2 drugs created security, health, and safety hazards, such as the following situations:

  • the offence is committed using third-party real estate,
  • the production of controlled substances constitutes a potential security, health, or safety hazard to children, who were in the vicinity of the production area,
  • the production created a potential public safety hazard,
  • the accused placed or set a trap.

Are there mandatory minimum sentences for minor drug charges?

Serious drug crimes attract serious sentences in Ontario but what about relatively minor drug offences?

Any drug charge can have life-altering consequences in Canada, so you need to take the charge seriously and be prepared to mount a rigorous defence to prevent it from impacting your future.

However, it is unlikely that minor offences will result in mandatory minimum sentences any time soon after the Supreme Court ruled that mandatory minimum sentencing for minor drug trafficking charges (as set out in the CDSA) is unconstitutional.

If you have been charged with a drug-related offence in Ontario — regardless of whether a mandatory minimum sentence applies — contact an experienced criminal defence lawyer at Affordable Defence for a free case evaluation.