6.2.1 Supplementary Guideline on Mandatory Minimum Penalties for Certain 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
June 24, 2016
Table of Contents
In light of recent rulings that have found four trafficking-related mandatory minimum penalties (MMPs) unconstitutional, effective immediately, prosecutors must no longer seek the imposition of the following MMPs for trafficking or possession for the purpose of trafficking in Schedule I drugs or large quantities of Schedule II drugs:
- One year when the offender carried a weapon in committing the offence (s. 5(3)(a)(i)(C));
- One year when the offender has been convicted of a drug offence (other than simple possession) in the previous 10 years (s. 5(3)(a)(i)(D));
- Two years when the offence was committed in or near a school or other public place usually frequented by persons under 18 (s. 5(3)(a)(ii)(A));
- Two years when the offender involves a person under 18 in the offence (s. 5(3)(a)(ii)(C)).
Other Controlled Drugs and Substances Act (CDSA) MMPs, including those under ss. 6 and 7, are unaffected by this guideline. The Public Prosecution Service of Canada (PPSC) will continue to seek these MMPs where appropriate.
On April 15, 2016, in R. v. Lloyd,Footnote 1 the Supreme Court of Canada struck down the one-year MMP for an offender with a drug record in the previous ten years who trafficked or possessed Schedule I or large amounts of Schedule II drugs for the purpose of trafficking. As a consequence, this MMP has been of no force or effect since that ruling and federal prosecutors are no longer able to seek its imposition.
On April 25, 2016, in light of Lloyd, the British Columbia Court of Appeal struck down in R. v. DickeyFootnote 2 the two-year MMPs applicable when the offence is committed in or near a school or other public place usually frequented by persons under 18Footnote 3 or when a young person is involved in the transaction.Footnote 4
The PPSC is not seeking leave to appeal the Dickey rulings to the Supreme Court of Canada. The PPSC is also abandoning an appeal to the British Columbia Court of Appeal from the provincial court ruling that struck down the one-year MMP for trafficking while carrying a weapon in Jackson-Bullshields.Footnote 5
3. Direction to Prosecutors
Regarding the offences listed above, prosecutors should simply seek the appropriate sentence based on relevant sentencing principles, including the aggravating factors in s. 10 of the CDSA, and the case law. In some instances the appropriate sentence may exceed the MMP. Prosecutors must no longer file or rely on the s. 8 notices in the CDSA regarding the MMPs listed above.
However, regarding s. 5(3)(a)(i)(C), the Court struck down only the
“carrying” aspect of the provision. Crown counsel must continue to file and rely on the s. 8 notice and seek the MMP in appropriate cases under this provision when the person used or threatened to use a weapon in committing the offence.
PPSC counsel must advise the courts and defence counsel of this position. Chief Federal Prosecutors (CFP) or their delegates must also advise the police forces in their jurisdictions of this position, since the police generally serve the s. 8 notices under the CDSA.
While PPSC counsel are directed to no longer seek the MMPs in the four circumstances identified above, absent binding appellate jurisprudence, counsel are not to concede the unconstitutionality of these MMPs. In any case, where defence counsel still wishes to argue the constitutionality of one or more of the MMPs listed above (despite the fact that the Crown is no longer seeking the MMP), counsel should notify the CFP to discuss next steps.
This guideline applies to all PPSC cases in the system where these MMPs are at issue, including appeals.
In all other respects, PPSC guidelines regarding MMPs continue to apply. In particular, the MMPs Guideline in Chapter 6.2, of the PPSC Deskbook, at paragraph 2.2., provides for non-reliance on the notice in situations where the Crown determines that the imposition of the MMP would likely result in an unduly harsh consequence in a particular case.
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