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

Public Prosecution Service of Canada Deskbook

Guideline of the Director Issued under Section 3(3)(c) of the Director of Public Prosecutions Act

Updated January 17, 2018

Table of Contents

1. Purpose

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 (MMPs) 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 MMPs, 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 MMPs 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. MMPs 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:

Aggravating Factors List B:

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

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 addicted offender 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

Schedule I  - Drugs (cocaine, heroin, methamphetamine, etc., and drugs being moved from Schedule III including ecstasy, GHB and rohypnol)
Offence Mandatory Minimum Penalty Notes
  w/
Aggravating Factor -
List A
Table note 1
w/
Aggravating Factor -
List B
Table note 2
w/
Health and Safety Factors
Table note 3
7(1)
Production
2 Years n/a n/a 3 Years  
5(1)
Trafficking
  1 Year 2 Years n/a  
5(2)
Possession for the Purpose of Trafficking
  1 Year 2 Years n/a  
6(1)
Importing
Exporting
1 Year n/a n/a n/a

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. 
2 YEARS
(if more than 1 kg)
6(2)
Possession For the Purpose of Exporting
1 Year n/a n/a n/a

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.
2 YEARS
(if more than 1 kg)
Schedule II drugs (cannabis marihuana)
Offence Mandatory Minimum Penalty Notes
  w/
Aggravating Factors -
List A
Table note 1
w/
Aggravating Factor -
List BTable note 2
w/
Health and Safety Factors
Table note 3
5(1)
Trafficking
  1 Year 2 Years n/a Offence would have to involve more than 3 kg of cannabis marihuana or cannabis resin
5(2)
Possession for the Purpose of Trafficking
  1 Year 2 Years n/a Offence would have to involve more than 3 kg of cannabis marihuana or cannabis resin
6(1)
Importing
Exporting
1 Year n/a n/a n/a

One year for Schedule II 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.
6(2)
Possession for the Purpose of Exporting
1 Year n/a n/a n/a

One year for Schedule II 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.
7(1)
Production of
6 - 200 plants
6 Mos n/a n/a 9 Mos Offence is committed for the purpose of trafficking.

Maximum penalty will be increased to 14 years imprisonment
7(1)
Production of
201 – 500 plants
1 Year n/a n/a 18 Mos Maximum penalty will be increased to 14 years imprisonment
7(1)
Production of over 500 plants
2 Years n/a n/a 3 Years Maximum penalty will be increased to 14 years imprisonment
*7(1)
Production of
substances in schedule II other than marihuana (i.e. resin/oil)
1 Year n/a n/a 18 Mos If offence is committed for the purpose of trafficking.

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