As per section 6(1) of the Controlled Drugs and Substances Act (CDSA), except as authorized 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:
(i) The offence is committed for the purpose of trafficking,
(ii) The person, while committing the offence, abused a position of trust or authority, or
(iii) The person had access to an area that is restricted to authorized persons and used that access to commit the offence.
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 sank, 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, bur rather, excused because it was realistically unavoidable.
In order to prove necessity, there are three components:
Section 17 of the Criminal Code outlines the defence of duress. It states, a person who commits an 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 allures 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, doesn’t have to be imminent peril.
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 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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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 boarder with an automobile or train, a plane, or crossing international waters.
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 organization”.
Therefore, proof that the accused may have been the orchestrator of others importing the substance may be sufficient to bring an importation conviction.
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.
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.