Canada's Previous Drug Laws (before the Controlled Drugs and Substances Act came into force in May 1997)  

Canada's previous drug laws -- the Narcotic Control Act and the Food and Drugs Act -- were enacted by the Parliament of Canada. These were federal laws that applied across Canada. They prohibited activities such as possession, possession for the purpose of trafficking, trafficking, importing and exporting and cultivation. The Controlled Drugs and Substances Act completely repealed (replaced) the Narcotic Control Act and repealed parts III and IV of the Food and Drugs Act.

Canada's main criminal law, the Criminal Code, contains further provisions dealing with drug paraphernalia. These Criminal Code provisions remain in force; they were not replaced by the Controlled Drugs and Substances Act.

Narcotic Control Act (completely repealed by the Controlled Drugs and Substances Act )

The Narcotic Control Act covers drugs such as heroin, cocaine and cannabis, calling them "narcotics". The Act prohibits several activities:

    . possession of a "narcotic" covered by the Act

    . possession for the purpose of trafficking

    . trafficking

    . cultivating

    . importing, and

    . exporting.

Possession: Section 3 prohibits the possession of a narcotic. If the prosecutor decides to prosecute the offence as an indictableSee footnote 1 offence, the maximum penalty is 7 years imprisonment. If the prosecutor decides to prosecute the offence as a summary convictionSee footnote 1 offence, the maximum penalty for the first offence is 6 months imprisonment or a $1000 fine, or both. The maximum penalty for any subsequent offence is one year imprisonment or a $2000 fine, or both.

Possession for the purposes of trafficking and trafficking: Section 4 prohibits the trafficking of a narcotic or the possession of a narcotic for the purposes of trafficking. The maximum penalty is imprisonment for life. Section 2 of the Act defines "traffic" to mean:

    (a) to manufacture, sell, give, administer, transport, send, deliver or distribute, or

    (b) to offer to do anything referred to in paragraph (a).

Trafficking therefore covers a wide range of activities that a person might not normally think of as "trafficking" -- even delivering a small package of marijuana to a friend for no money.

Importing or exporting: Section 5 prohibits importing or exporting a narcotic. This is an indictable offence with a maximum penalty of life imprisonment. The section states that the minimum penalty is 7 years imprisonment, but in 1987 the Supreme Court of Canada held that the minimum penalty was a cruel and unusual punishment and thus unconstitutional.

Cultivation: Section 6 prohibits the growing of opium or marihuana without a federal licence. This is an indictable offence, and the penalty is imprisonment for no more than 7 years.

Possession of proceeds of a drug offence: Section 19.1 prohibits the possession in Canada of property or money which was obtained directly or indirectly from the commission of an offence under section 4, 5, or 6 of this Act anywhere in the world. If the value of the property or money is more than $1000, the penalty is no more than 10 years imprisonment. If the value of the property or money is less than $1000, this is a hybrid offence; the penalty is imprisonment for no more than 2 years if the prosecutor prosecutes the offence as an indictable offence, or no more than 6 months imprisonment or a fine of no more than $2000, or both, if the prosecutor treats the offence as a summary conviction offence.

"Laundering" of proceeds of a drug offence: Section 19.23 prohibits the laundering in Canada of money obtained from the commission of an offence under section 4, 5, or 6 anywhere in the world. This is a hybrid offence. The penalty is imprisonment for no more than 10 years if the prosecutor prosecutes the offence as an indictable offence, or no more than 6 months imprisonment or a fine of no more than $2000, or both, if the prosecutor treats the offence as a summary conviction offence.

Food and Drugs Act (parts III and IV were repealed by the Controlled Drugs and Substances Act)

Controlled Drugs

Part III of the Act deals with "Controlled Drugs". A controlled drug is any drug listed in Schedule G of the Act. Such drugs include amphetamine, methamphetamine and testosterone.

It is not illegal to possess a controlled drug, unless the possession is for the purpose of trafficking.

Possession for the purpose of trafficking and trafficking: Section 39 prohibits both the trafficking of any controlled drug and the possession of any controlled drug for the purpose of trafficking. This is a hybrid offence. The maximum penalty is imprisonment for no more than 10 years on indictment, or 18 months on summary conviction.

Possession of proceeds of a drug offence: Section 44.2 prohibits the possession in Canada of property or money which was obtained directly or indirectly from the trafficking of any controlled drug anywhere in the world. If the value of the property or money is more than $1000, this is an indictable offence with the punishment set at no more than 10 years imprisonment. If the value of the property or money is less than $1000, this is a hybrid offence; the penalty is a maximum 2 years imprisonment on indictment. On summary conviction, the maximum is 6 months or a fine of no more than $2000, or both.

"Laundering" of proceeds of a drug offence: Section 44.3 prohibits the laundering in Canada of money obtained from the trafficking of any controlled drug anywhere in the world. This is a hybrid offence. The maximum penalty is 10 years imprisonment on indictment. On summary conviction, the maximum is 6 months or a fine of no more than $2000, or both.

Restricted Drugs

Part IV of the Food and Drugs Act deals with "restricted" drugs. A restricted drug is any drug listed in Schedule H of the Act, and includes LSD and MDA.

Possession: Section 47 prohibits the possession of a restricted drug (remember that it is not an offence simply to possess a controlled drug). This is a hybrid offence. On indictment, the penalty is imprisonment for no more than 3 years, or a fine not exceeding $5000 or both. On summary conviction, the penalty for the first offence is imprisonment for no more than 6 months or a fine not exceeding $1000, or both, and for any subsequent offence is imprisonment for a term not exceeding one year or a fine not exceeding $2000, or both.

Possession for the purpose of trafficking or trafficking: Section 48 prohibits possession for the purpose of trafficking or trafficking in a restricted drug. This is a hybrid offence with the penalty set at imprisonment for no more than 10 years on indictment, or imprisonment for no more than 18 months on summary conviction.

Possession of proceeds of a drug offence: Section 50.2 prohibits the possession in Canada of property or money which was obtained directly or indirectly from the trafficking of any restricted drug anywhere in the world. If the value of the property or money is more than $1000, this is an indictable offence with the punishment set at no more than 10 years imprisonment. If the value of the property or money is less than $1000, this is a hybrid offence with a maximum penalty of 2 years imprisonment on indictment. On summary conviction, the maximum is 6 months imprisonment or a $2000 fine, or both.

"Laundering" of proceeds of a drug offence: Section 50.3 prohibits the laundering in Canada of money obtained from the trafficking of any restricted drug anywhere in the world. This is a hybrid offence with a maximum penalty of 10 years imprisonment on indictment. On summary conviction, the maximum is 6 months imprisonment or a $2000 fine, or both.

Criminal Code (These provisions remain in force, even after the enactment of the Controlled Drugs and Substances Act)

The Criminal Code is the main criminal law of Canada. One of its main provisions relating to drugs covers drug paraphernalia. Sections 462.1 and 462.2 prohibit the importation, exportation, manufacture, promotion or sale of "instruments or literature for illicit drug use". These are all summary conviction offences. The penalties are as follows:

    a) for a first offence, a fine not more than $100,000 or imprisonment not longer than 6 months, or both;

    b) for other offences, a fine not more than $300,000 or imprisonment not longer than 1 year, or both.

Footnote: 1 Under Canada's legal system, there are three types of criminal offences -- indictable, summary conviction and "hybrid" (sometimes called "Crown election offences"). "Indictable" offences are generally the more serious offences, such as murder or acts of serious violence, and attract the heaviest penalties. Summary conviction offences are generally less serious offences -- for example, taking a car without the owner's consent. In addition, with "hybrid offences", the law allows the prosecutor to decide whether to prosecute the offence as an indictable offence or a summary conviction offence.

If the prosecutor decides to prosecute an offence as a summary conviction offence, the accused person will face a lower penalty (generally no more than six months in prison or a $2000 fine, or both) than if the prosecutor prosecutes the offence as an indictable offence (where the penalty could be as high as 10 or more years in prison).