Drug Charge Mandatory Minimum Sentencing in Ontario
You are probably already aware that charges for drug possession, production, and trafficking in Ontario carry serious consequences.
But did you know that some drug charges carry mandatory minimum sentences?
This means that, regardless of the circumstances, if you are convicted of the offence, the judge will be compelled to impose a jail sentence.
Since the passing of the Safe Streets & Communities Act in 2012, mandatory minimum penalties have applied to the following serious drug offences in Canada:
- Drug production
- Drug trafficking
- Drug possession for the purpose of trafficking
- Drug possession for the purpose of exporting
A seasoned drug charge lawyer may be able to present a strong defence and help you escape a conviction.
However, it’s important to understand the potential consequences if you are arrested and charged with a serious drug crime.
When do mandatory minimum sentences apply for drug charges?
Mandatory minimum sentences apply when there are “aggravating” circumstances for serious drug charges in Ontario.
In the Controlled Drugs and Substances Act (CDSA) these aggravating factors are subdivided into three different categories, as follows:
The aggravating factors include offences committed:
- for the benefit of organized crime;
- involving use or threat of violence;
- involved use or threat of use of weapons;
- by someone who was previously convicted of a designated drug offence or had served a term of imprisonment for a designated substance offence in the previous 10 years; and,
- through the abuse of authority or position or by abusing access to restricted area to commit the offence of importation/exportation and possession to export.
The aggravating factors include offences committed:
- in a prison;
- in or near a school, in or near an area normally frequented by youth or in the presence of youth;
- in concert with a youth; and
- in relation to a youth (e.g. selling to a youth).
Health and Safety Factors
- the accused used real property that belongs to a third-party to commit the offence;
- the production constituted a potential security, health or safety hazard to children 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; and
- the accused placed or set a trap.
Are there mandatory penalties for drug possession?
For simple possession of a controlled substance, no mandatory sentences apply in Ontario.
The severity of the penalty you will receive for a drug possession conviction depends on two main factors:
- The classification of the drug you are found with – ranging from Schedule I to V, with Schedule I being the most addictive substances and those of least medical value
- The quantity of drugs you were found in possession of
According to the CDSA, sample penalties include the following:
- Schedule I drugs: from six months to seven years in prison
- Schedule II drugs: from six months to five years in prison
- Schedule III drugs: from six months to three years in prison
- Schedule IV drugs: from six months to 18 months in prison
However, the following types of possession do attract mandatory minimum sentencing penalties:
- Drug possession for the purpose of trafficking substances listed in Schedule I and Schedule II
- Drug possession for the purpose of exporting substances listed in Schedule I and Schedule II
Depending on the aggravating factor (see Schedules A and B above), the mandatory minimum sentence for these offences is either one or two years in jail.
What are the penalties for drug trafficking?
For some serious drug offences, mandatory minimum penalties apply regardless of whether or not an aggravating factor is present.
- Producing or importing a schedule 1 substance: a mandatory minimum sentence of between two and three years applies
- Producing more than five marijuana plants: a mandatory minimum sentence of between six months and three years applies, depending on the number of plants involved
Standard penalties for drug trafficking (with no aggravating factors present) include:
- A maximum of life imprisonment (25 years) for Schedules I and/or II drugs
- A maximum of 18 months to 10 years in prison for Schedule III drugs
- A maximum of one to three years in prison for Schedule IV drugs
If any of the aggravating factors outlined in Appendices A and B, or certain health and safety factors are present, mandatory minimum sentencing penalties will apply for drug trafficking offences – either one or two years in prison.
What’s the difference between possession and possession for the purpose of trafficking?
To be convicted of drug possession for the purpose of trafficking, the prosecution must prove that the substance found was illegal, that you were in possession of it, AND that you had the intention to sell (or give) it to other people.
A simple possession charge has no element of intention to sell the substance. Usually, in drug trafficking charges, a large quantity of drugs is involved but this alone is not enough to convict you of possession for the purpose of trafficking.
Can you be convicted of drug possession even if it was not on your person?
In legal terms, constructive possession means that you had both knowledge and control over the controlled substance.
This could mean that you can be charged and convicted of possession even if you did not have physical possession of the drugs if other available evidence can prove that you knew about it and were in control of it.
What if the police searched me illegally?
Drug charges are frequently dropped not because of doubt over possession of the drugs but because of the way in which evidence was obtained by law enforcement.
There are strict search and seizure laws in Canada that are part of every citizen’s Charter Rights. If these are violated, evidence may be declared inadmissible.
For this reason, many drug-related cases never make it to trial. So, even if the evidence against you is overwhelming, you should seek legal guidance immediately.
If you are facing a drug charge, call 613-223-4089 to speak to one of our lawyers and arrange a free case evaluation.