How Many Years in Jail for Drug Offences in Canada

If you have been accused of possessing, trafficking or importing cocaine, meth, heroin, magic mushrooms, LSD, or any other substance listed in the Controlled Drugs and Substances Act (CDSA), you need guidance and legal representation from an experienced drug offence…

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Defining and Understanding Possession

Drug possession offences are dictated by the CDSA. Possession, however, is defined by the Criminal Code. With respect to the Criminal Code, an individual is considered to be in possession of narcotics or substances in any of the following circumstances:

Individuals knowingly have the substance/narcotic on their person;
The defendant knowingly has the substance/narcotic in possession, custody of another person, or in any place (whether or not that place belongs to or is occupied by the defendant and/or whether or not the drug is in that place for the defendant’s own benefit); or
More than one person, with consent or knowledge of other people, has anything in custody or possession, the substance/narcotic is deemed to be in the custody and possession of each person. For example, Person B owns a substance, but has given Person A consent to have it in Person A’s possession. Although Person B does not have physical possession of the substance, both individuals are considered to be in possession of the substance/narcotic.

Therefore, if an individual is charged with possession of a narcotic or substance, the Crown is required to prove the following elements of the offence in front of a judge or jury:

That the accused had physical possession or custody of the prohibited substance;
That the accused knew the prohibited substance was physically retained;
That the accused intended to possess the substance; and
That the substance is prohibited under the CDSA.

Drug Schedules

The CDSA prohibits a wide range of controlled substances that are categorized into different schedules. The punishment for drug offences will depend on which schedule it falls into.

Schedule I Drugs:

Full list of Schedule I substances in the Controlled Drugs and Substances Act

Opium
Cocaine
Heroin
Oxycodone
Fentanyl
Morphine
Methamphetamine
Amphetamines

Schedule II Drugs:

Full list of Schedule II substances in the Controlled Drugs and Substances Act

Synthetic cannabinoids and derivatives (i.e.: hashish)

Schedule III Drugs:

Full list of Schedule III substances in the Controlled Drugs and Substances Act

LSD
DMT
Psilocybin (i.e.: magic mushrooms)
Mescaline
Methylphenidate (i.e.: Ritalin)

Schedule IV Drugs:

Full list of Schedule IV substances in the Controlled Drugs and Substances Act

Barbiturates
Diazepam
Benzodiazepines
Anabolic steroids (including testosterone)
Clozapine

Schedule V Drugs:

Schedule V drugs have been repealed.

Schedule VI Drugs:

Full list of Schedule VI substances in the Controlled Drugs and Substances Act

Factors that Determine the Seriousness of the Drug Offence – Summary vs Indictable Offence

Drug possession are hybrid offences. This means that when an accused is charged with the possession of a scheduled drug, the Crown can proceed to prosecute the accused by way of indictment or summary conviction. Typically, the Crown proceeds to prosecute by way of indictment when the circumstances of the offence are more serious. For example, factors include the quantity and type of drugs possessed, and whether the accused has previous drug charges or convictions. The punishment for indictable offences is more severe than punishments for summary convictions.

How Many Years in Jail for Drug Possession?

Punishment for Possessing Drugs

The CDSA prohibits individuals from possessing a substance included in Schedule I, II, III or IV. The sentence a defendant will face if found guilty of possessing scheduled drugs will be different depending on the scheduled category of the drug, and whether the Crown proceeds by way of indictment or summary conviction. The following table lists the sentences for possessing scheduled drugs:

Possession of	Indictable Offence	Summary Conviction	CDSA Offence
Schedule I	Imprisonment not exceeding seven years.	• For a first offence: a fine not exceeding $1,000 or imprisonment not exceeding six months, or both; and • For a subsequent offence: a fine not exceeding two thousand dollars or imprisonment not exceeding one year, or both.	Section 4(3)
Schedule II	Imprisonment not exceeding five years less a day.	• For a first offence: a fine not exceeding $1,000 or to imprisonment for a term not exceeding six months, or to both, and • For a subsequent offence: to a fine not exceeding $2,000 or to imprisonment for a term not exceeding one year, or to both.	Section 4(4)
Schedule III	Imprisonment not exceeding three years.	• For a first offence: a fine not exceeding $1,000 or to imprisonment for a term not exceeding six months, or to both, and • For a subsequent offence: to a fine not exceeding $2,000 or to imprisonment for a term not exceeding one year, or to both.	Section 4(6)

Obtaining Substance

Under the CDSA offence of possession, individuals are also prohibited from seeking or obtaining a substance included in Schedule I, II, III, or IV, or from seeking and obtaining an authorization to obtain a substance included in Schedule I, II, III, or IV.

Punishment for Obtaining Substance(s)

Schedule	Indictable Offence	Summary Conviction	CDSA Offence
Schedule I	Imprisonment not exceeding seven years.	• For a first offence: a fine not exceeding $1,000 or to imprisonment for a term not exceeding six months, or to both, and • For subsequent offence: to a fine not exceeding $2,000 or to imprisonment for a term not exceeding one year, or to both.	Section 4(2)
Schedule II	Imprisonment not exceeding five years less a day.	Same summary conviction punishment as Schedule I.
Schedule III	Imprisonment not exceeding three years.	Same summary conviction punishment as Schedule I.
Schedule IV	Imprisonment not exceeding eighteen months.	Same summary conviction punishment as Schedule I.

Exemption

Under the CDSA, a person will not be charged for possession under certain circumstances. However, drug charges are often complex and involve multiple Charter issues, such as the freedom from unreasonable search and seizure, and freedom from arbitrary detention or imprisonment. An experienced criminal lawyer at Pyzer Criminal Lawyers will help you navigate the legal realm of possession, and determine whether a legal defence of exemption can be considered for your case.

Under sections 4.1(2), (3), and (4) of the CDSA, an individual can be exempt from being charged with possession of a scheduled narcotic or substance if any of the following apply:

Medical emergency;
Persons at the scene; or
Evidence.

Defining and Understanding Drug Trafficking

The CDSA defines trafficking, in respect of a substance classified in Schedule I to V as:

(a) The selling, administration, giving, transferring, transporting, sending or delivering of the substance;
(b) The selling of authorization to obtain the substance; or
(c) To offer to do anything mentioned in (a) or (b).

An exchange of money is not required for the completion of a trafficking offence. Therefore, an accused can be found guilty of trafficking if they transferred a scheduled substance, or even gifted drugs to another person.

Punishment for Trafficking Drugs

There are two offences under the CDSA involving trafficking. First, no person shall traffic in a substance included in Schedule I, II, III, or IV, or any substance represented or held out by that person to be such a substance. Second, no person shall, for the purpose of trafficking, possess a substance included in Schedule I, II, III, or IV.

Trafficking drugs is more serious than possessing drugs. Therefore, not all trafficking offences are hybrid offences and many contain mandatory minimum sentences.

Trafficking of	Indictable Offence	Summary Conviction	CDSA Offence
Schedule I or Schedule II	Liable to imprisonment for life, and • (i) to a minimum punishment of imprisonment for a term of one-year if: (A) the person committed the offence for the benefit of, at the direction of or in association with a criminal organization, as defined in subsection 467.1(1) of the Criminal Code, (B) the person used or threatened to use violence in committing the offence, (C) the person carried, used or threatened to use a weapon in committing the offence, or (D) the person was convicted of a designated substance offence, or had served a term of imprisonment for a designated substance offence, within the previous 10 years, or • (ii) to a minimum punishment of imprisonment for a term of two years if (A) the person committed the offence in or near a school, on or near school grounds or in or near any other public place usually frequented by persons under the age of 18 years, (B) the person committed the offence in a prison, as defined in section 2 of the Criminal Code, or on its grounds, or (C) the person used the services of a person under the age of 18 years, or involved such a person, in committing the offence.		Section 5(3)(a)
Schedule III or Schedule V	Imprisonment not exceeding ten years.	Imprisonment not exceeding eighteen months.	Section 5(3)(b)
Schedule IV	Imprisonment not exceeding three years.	Imprisonment not exceeding one year.	Section 5(3)(c)

Other drug offences under the CDSA

Offence	Indictable Offence	Summary Conviction	CDSA Offence
Importing and exporting a substance included in Schedule I or II if the substance is less than one kilogram	Liable to imprisonment for life, and to a minimum punishment of one year if: • if the offence is committed for the purposes 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 authorized persons and used that access to commit the offence		Section 6(3)(a)
Importing and exporting a substance included in Schedule I if the substance is more than one kilogram	Liable to imprisonment for life, and to a minimum punishment of imprisonment for two years.		Section 6(3)(a.1)
Importing and exporting a substance included in Schedule III, V, or VI	Imprisonment not exceeding ten years.	Imprisonment not exceeding eighteen months.	Section 6(3)(b)
Importing and exporting a substance included in Schedule IV	Imprisonment not exceeding three years.	Imprisonment not exceeding one year.	Section 6(3)(c)
Possession for the purpose of exporting a substance included in Schedule I or II if the substance is less than one kilogram	Liable to imprisonment for life, and to a minimum punishment of one year if: • offence is committed for the purposes 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 authorized persons and used that access to commit the offence		Section 6(3)(a)
Possession for the purpose of exporting a substance included in Schedule I if the substance is more than one kilogram	Imprisonment for life, and to a minimum punishment of imprisonment for two years.		Section 6(3)(a.1)
Possession for the purpose of exporting a substance included in Schedule III, V, or VI	Imprisonment not exceeding ten years.	Imprisonment not exceeding eighteen months.	Section 6(3)(b)
Possession for the purpose of exporting a substance included in Schedule IV	Imprisonment not exceeding three years.	Imprisonment not exceeding one year.	Section 6(3)(c)
Production of substance included in Schedule I	Imprisonment for life and to a minimum punishment of imprisonment for three years if any of the following from section 7(3) apply: the person used real property that belongs to a third party in committing the offence; 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; the production constituted a potential public safety hazard in a residential area; or 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. If any other case and if none of the above apply, imprisonment for two years.		Section 7(2)
Production of substance included in Schedule II	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 eighteen months if the production is for the purpose of trafficking and any of the factors set out in subsection (3) apply (see above for factors in section 7 (3)).		Section 7(2)(a.1)
Production of substance included in Schedule III or V	Imprisonment not exceeding ten years.	Imprisonment not exceeding eighteen months.	Section 7(2)(c)
Production of substance included in Schedule IV	Imprisonment not exceeding three years.	Imprisonment not exceeding one year.	Section 7(2)(d)
Possession, sale, etc., for use in production of or trafficking in substance in Schedule I, II, III, or V	Imprisonment not exceeding ten years.	Imprisonment not exceeding eighteen months	Section 7.1(2)(a)
Possession, sale, etc., for use in production of or trafficking in substance in Schedule IV	Imprisonment not exceeding three years.	Imprisonment not exceeding one year.	7.1(2)(b)

Sentencing Factors That Courts Take Into Consideration

Several drug offences under the CDSA have a minimum punishment. As of February 2021, however, the Minister of Justice introduced proposed amendments to the Criminal Code and the Controlled Drugs and Substances Act to repeal mandatory minimum penalties. Although the amendments will likely repeal minimum sentences in the CDSA, minimum sentences remain until the amendments are accepted.

Therefore, if a drug offence punishment does not list a mandatory minimum sentence, section 10(2) of the CDSA lists aggravating factors for the court to take into consideration while sentencing an offender:

(a) in relation to the commission of the offence, the offender:
- carried, used, or threatened to use a weapon,
- used or threatened to use violence,
- trafficked in a substance included in Schedule I, II, III, IV or V, or possessed such a substance for the purpose of trafficking, in or near a school, on or near school grounds or in or near any other public place usually frequented by persons under the age of 18 years, or
- trafficked in a substance included in Schedule I, II, III, IV or V, or possessed such a substance for the purpose of trafficking, to a person under the age of 18 years;

(b) was previously convicted of a designated substance offence, as defined in subsection 2(1) of the CDSA, or a designated offence, as defined in subsection 2(1) of the Cannabis Act;
(c) used the services of a person under the age of eighteen years to commit, or involved such a person in the commission of the offence.

Aggravating factors are considered by the judge during sentencing and increase the accused’s sentence. Mitigating factors, on the other hand, are circumstances the judge considers that reduce the accused’s sentence.

Drug Treatment Court Program

Under section 10(4) of the CDSA, the court has discretion to delay an accused’s sentencing under two circumstances. First, to enable the offender to participate in a drug treatment court program, or, second, to attend a treatment program under subsection 720(2) of the Criminal Code. Additionally, if an offender successfully completes a drug treatment court program, the court is not required to impose the minimum punishment for the offence for which the person was convicted.

What Rights Do You Have in Your Own Residence?

In order to search your home for drugs, law enforcement must have a warrant. The search that ensues will be considered reasonable if it is authorized by law, that the law itself is reasonable, and the manner in which law enforcement carried out the search was reasonable.

A recent case from the Ontario Superior Court of Justice, R v Aisevho, re-stated the common law standard for the issuance of a search warrant:

…is that there are reasonable and probable grounds to believe that an offence has been committed and that there is evidence of that offence to be found at the place to be searched… The question is whether there are sufficient credible and reliable evidence to permit a justice of the peace to find reasonable and probable grounds to believe that an offence had been committed and that evidence of that offence would be found at the specific time and place. R v Aisevho 2021 ONSC 5116 at 57.

Reasonable and Probable Grounds

The Supreme Court in R v Morelli established what reasonable and probable grounds means in the context of a search warrant: “’reasonable and probable grounds’ means a ‘credibly based probability’ and does not mean proof beyond a reasonable doubt or even a prima facie case.”

The court in R v Aisevho defined the standard further, stating:

A credibly based probability requires that the grounds provided demonstrate a probability, as opposed to a suspicion, that the relevant facts could be true, and assuming the information to be true, that there are reasonable grounds to believe that the information relied upon is credible enough to support a conclusion that there is a reasonable probability that the relevant facts exist.

Conclusion

Drug related offences in Canada are complex. If you are being investigated or have been charged for a drug or other criminal offence, a conviction can permanently alter and obstruct your entire life. Our experienced drug offence lawyers in Toronto are here to provide expert legal assistance. Contact us for a free consultation to discuss your case and explore your options. We are dedicated to defending your rights and ensuring the best possible outcome for your situation.

Jonathan Pyzer

Jonathan Pyzer, B.A., L.L.B., is an experienced criminal defence lawyer and distinguished alumnus of McGill University and the University of Western Ontario. As the founder of Pyzer Criminal Lawyers, he brings over two decades of experience to his practice, having successfully represented hundreds of clients facing criminal charges throughout Toronto.