Drug Importing Into Canada
As per section 6(1) of the Controlled Drugs and Substances Act (CDSA), except as authorised under a regulation, no person shall import into Canada or export from Canada a substance included in Schedules I to VI.
With an offence of importing/exporting is one of possession under section 6(2) of the CDSA.
The punishment for an importing/exporting conviction varies depending on which Schedule the substance belongs to and the amount. The punishment is outlined in section 6(3) of the CDSA.
If the substance is included in Schedule I in an amount that is not more than one kilogram, or in Schedule II, the individual is guilty of an indictable offence and liable to imprisonment for life, and to a minimum punishment of imprisonment for a term of one year if:
- The offence is committed for the purpose of trafficking,
- The person, while committing the offence, abused a position of trust or authority, or
- The person had access to an area that is restricted to authorised persons and used that access to commit the offence.
Therefore, if you’re facing charges related to importing/exporting controlled substances, it’s essential to seek legal advice from a criminal defence lawyer who can provide expert guidance and representation to protect your rights and navigate the legal complexities effectively.
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Common Defences for Importing Drugs: Necessity, Duress and Entrapment
Necessity is a common law defence for voluntariness. The defence of necessity was used in the Supreme Court Case of Perka in 1984.
In this case, drug smugglers were going through international waters off the coast of Alaska, but when their boat was having trouble and could have sunk, they unloaded 33 tonnes of marijuana.
The smugglers were charged with importing, but used the defence of necessity because they did not have intent to import the drugs to Canada.
At the heart of this defence is the perceived injustice of punishing violations of the law, and circumstances in which those who did the act did not have another viable, reasonable choice available.
Therefore, this defence does not try to say the act wasn’t wrong, but rather, excused because it was realistically unavoidable.
In order to prove necessity, there are three components:
- It is restricted to instances of non-compliance in urgent situations of clear and imminent peril, where compliance with the law is demonstrably impossible.
- If there is a reasonable legal alternative to disobeying the law, then the decision to disobey becomes a voluntary one because the person’s decision is induced by something beyond necessity, and
- The harm inflicted must be less than the harm that was sought to be avoided. Proportionality is measured on an objective standard.
Duress
Section 17 of the Criminal Code outlines the defence of duress. It states, a person who commits a drug offence under compulsion by threats of immediate death or bodily harm from a person who is present when the offence is committed is excused for committing the offence if the person believes that the threats will be carried out and if the person is not a party to a conspiracy or association whereby the person is subject to compulsion.
In the Supreme Court case of R v Ruzic, the individual was charged with importing 2kg of heroin into Canada, admitted to it, but claimed she was acting under duress.
She had said that someone threatened to kill her mother unless she brought the heroin to Canada, and did not tell the police because she believed they were corrupt.
She was acquitted and the Court explained that although section 17 requires immediacy, that requirement alludes to a section 7 Charter infringement.
Difference Between Necessity and Duress
For necessity, there is that clean and imminent or urgent peril but under duress, the threat can be future harm, it doesn’t have to be imminent peril.
Entrapment
The law of entrapment is intended to prevent police from attracting someone who is not already involved in criminal activity into committing a crime by offering an opportunity to commit the criminal act.
The defence is available when:
- The authorities (e.g. police officers) provide a person with an opportunity to commit an offence without acting on a reasonable suspicion that this person is already engaged in criminal activity;
- The authorities provide a person with an opportunity to commit an offence without acting pursuant to bona fide inquiries; or
- Although having such a reasonable suspicion or acting in the course of a bona fide inquiry, they go beyond providing an opportunity and induce the commission of an offence.
What is the Maximum Sentence for Drug Importing?
The maximum sentence for drug importation, as per section 6(3) of the CDSA, depends on the type of drug or substance, their corresponding Schedule, and the amount.
If the substance is included in Schedule I, and it is not more than one kilogram, the maximum punishment is life imprisonment. If the substance is in Schedule I, with an amount more than one kilogram, the maximum punishment remains life imprisonment.
If the substance is included in Schedule II, regardless of amount, the maximum punishment is life imprisonment.
If the substance is included in Schedule III, V or VI, the maximum punishment is imprisonment for a term not exceeding ten years.
If the substance is included in Schedule IV, the maximum punishment is imprisonment for a term not exceeding three years.
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Past Successes in Cases Involving Drug Charges
Charges Stayed
R. v. J.M.
Client was charged with possession of heroin for the purpose of trafficking, possession of a prohibited weapon, possession of proceeds of crime, and carrying a concealed weapon. Police investigated the client following two confidential tips. Officers conducting surveillance alleged they observed the client engage in hand-to-hand transactions with two individuals. Police searched the client and his vehicle, allegedly finding heroin in separate bags, brass knuckles, and cash. We exploited issues with the police investigation and Crown disclosure delays, persuading the Crown not to pursue the charges.
Charges Withdrawn
R. v. S.A.
Client was charged with possession of marijuana for the purpose of trafficking and simple possession. Police observed the client littering while leaving a shopping mall and asked him to exit his vehicle to pick up the litter. Officers claimed to smell freshly burnt marijuana from the vehicle and arrested the client. A search allegedly revealed marijuana in a plastic bag, two empty bags, and $390 in cash. We demonstrated to the Crown that the client’s Charter rights under sections 8, 9, and 10(b) were violated and that the evidence would likely be excluded at trial.
Charges Stayed
R. v. J.M.
Client was charged with possession of heroin for the purpose of trafficking, possession of a prohibited weapon, possession of proceeds of crime, and carrying a concealed weapon. Police investigated the client following two confidential tips. Officers conducting surveillance alleged they observed the client engage in hand-to-hand transactions with two individuals. Police searched the client and his vehicle, allegedly finding heroin in separate bags, brass knuckles, and cash. We exploited issues with the police investigation and Crown disclosure delays, persuading the Crown not to pursue the charges.
Charges Withdrawn
R. v. S.A.
Client was charged with possession of marijuana for the purpose of trafficking, simple possession of marijuana, and possession of proceeds of crime. Police approached the client after observing him littering while leaving a shopping centre. Officers claimed to detect a strong odour of marijuana. The client was arrested and searched, and police found approximately 9 grams of marijuana, a digital scale, and a large quantity of cash. We conducted a thorough disclosure review and demonstrated serious Charter violations regarding arbitrary detention and illegal search and seizure. The Crown withdrew all charges. Five months later, we also secured the destruction of the client’s fingerprints and photographs.
Charges Withdrawn
R. v. M.B.
Client was charged with possession of marijuana for the purpose of trafficking and possession of proceeds of crime. Police observed the client in Toronto’s Kensington Market conducting a hand-to-hand drug transaction with another individual. We represented the client and successfully negotiated the withdrawal of all charges before a trial date was set.
Charges Withdrawn
R. v. N.C.
Client faced multiple charges including possession of heroin, two counts of possession of cocaine for the purpose of trafficking, possession of cocaine, and possession of marijuana. Police obtained a search warrant after receiving information about drug sales at a Toronto apartment. Officers found large quantities of heroin, cocaine, and marijuana along with drug trafficking paraphernalia. The client was arrested outside the apartment where her identification and clothing were found inside. We successfully negotiated the withdrawal of all charges before trial.
FAQs
What does it mean to Import Drugs in a Legal Sense?
The CDSA governs the importation, bringing into Canada, substances allocated in its Schedules. Therefore, if you were coming from the U.S. into Canada with a bottle of Advil, you would not be violating the Act, as Advil is not a substance found in the Schedules of the Act.
The word “import” does not have a special legal meaning, but rather, it is what is being brought into the country that differentiates what illegal from legal. Importation can take several modes: crossing the border with an automobile or train, a plane, or crossing international waters.
Can I be Convicted of Importing Drugs if I Personally Didn’t Bring Illegal Drugs into Canada?
Section 6(1) of the CDSA that governs importation states “no person shall import”. The Act defines a person to mean “an individual or an organisation”.
Therefore, proof that the accused may have been the orchestrator of others importing the substance may be sufficient to bring an importation conviction.
What must the Crown prove to establish that the Accused Imported drugs into Canada?
The Crown must prove both the act of importation, and the knowledge that the accused knew the drug was a controlled drug or substance, as per the Schedules in the CDSA.
What if the Accused thought they were importing a Different Illegal Drug. Is this a viable defence?
No. This is not a viable defence because the accused knew that the drug or substance was still illegal. Therefore, they are still importing an illegal drug or substance into the country.
