Drug Schedules and Penalties in Canada

The short answer

Drug penalties in Canada depend on two things: which schedule the drug is listed in, and what offence you are charged with. The same drug can carry up to 7 years for possession and up to life for trafficking. There have been no mandatory minimum sentences for these offences since the 2022 changes, so judges have a wide range of options when deciding a sentence. This guide sets out the schedules, the maximum penalties for each offence and the factors that move a sentence up or down.

The schedules

The Controlled Drugs and Substances Act groups drugs into schedules:

• Schedule I: This includes cocaine, heroin, fentanyl and other opioids, and methamphetamine.
• Schedule II: This includes synthetic cannabinoids.
• Schedule III: This includes psilocybin, LSD and some stimulants.
• Schedule IV: This includes some prescription drugs, such as certain sedatives and anabolic steroids.
• Schedule V: This includes a small group of other substances.

The lab certificate in your disclosure identifies the substance and its schedule, which is why it is one of the first documents your lawyer should review. The schedule can change both the maximum penalty and the options available.

Maximum penalties by charge

The following are the maximums by indictment. Many of these offences can also be prosecuted summarily, with lower maximums.

Possession (s. 4)

• Schedule I: The maximum is 7 years.
• Schedule II: The maximum is 5 years less a day.
• Schedule III: The maximum is 3 years.
• Schedule IV: Possession is not an offence under s. 4(1).

Trafficking or possession for the purpose (s. 5)

• Schedule I or II: The maximum is life.
• Schedule III or V: The maximum is 10 years.
• Schedule IV: The maximum is 3 years.

Importing or exporting (s. 6)

• Schedule I or II: The maximum is life.
• Schedule III or V: The maximum is 10 years.
• Schedule IV: The maximum is 3 years.

Production (s. 7)

• Schedule I or II: The maximum is life.
• Schedule III or V: The maximum is 10 years.
• Schedule IV: The maximum is 3 years.

How judges decide

Every sentence must fit the seriousness of the offence and your degree of responsibility. In drug cases, judges look closely at how dangerous the drug is, the amount involved, your role in the operation, whether you were motivated by profit or by addiction, and any steps you have taken toward treatment. A person who sold small amounts to support their own addiction is usually treated very differently from someone running a commercial operation.

Aggravating factors

The CDSA lists specific aggravating factors in s. 10. They include trafficking in or near a school or another place where young people gather, selling to a person under 18 or using a person under 18 to commit the offence, and prior convictions for designated drug offences. The presence of weapons or violence is also treated as aggravating.

Sentencing options

Because there are no mandatory minimums, judges can choose from the full range of sentences. Depending on the charge and the facts, options can include a discharge, a suspended sentence with probation, a conditional sentence served in the community, or jail. For simple possession, diversion and withdrawal are often available before the case reaches sentencing.

Other consequences

• Weapons prohibition: This is mandatory after a conviction or discharge for trafficking, importing or production (Criminal Code s. 109).
• Forfeiture: Cash, vehicles and property connected to the offence can be taken by the court.
• Immigration: Trafficking, importing and production convictions can make a permanent resident inadmissible for serious criminality.
• Travel: A drug conviction can lead to being refused entry to the United States.

How the schedule is proven

The prosecutor usually proves the type of drug with a certificate from a Health Canada lab, called a certificate of analyst. The certificate states what the substance was and sometimes its weight. The defence receives a copy in disclosure. If the certificate is missing, late or unclear, or if the drug was never tested, the prosecutor may have trouble proving the charge as laid.

Summary conviction or indictment

Many drug offences are hybrid, which means the prosecutor can choose to proceed summarily or by indictment. A summary proceeding has lower maximum penalties and a shorter waiting period for a record suspension. Possession and trafficking of Schedule I or II drugs by indictment are much more serious, and trafficking in those drugs can only be prosecuted by indictment.

Forfeiture

When drugs are seized, police often also seize cash, phones, vehicles and other property. If you are convicted, the prosecutor can ask the court to forfeit property that was used in the offence or that came from it. Property owned by someone else, such as a family member's car, may be returned if that person had no involvement in the offence. Get advice early if seized property belongs to you or a relative.

Possible outcomes

Treatment and sentencing

When drug use is behind the offence, judges often give real weight to treatment. A person who has completed a residential program, attends counselling or has stayed sober for a long period may receive a much lower sentence than they otherwise would. Proof of treatment, such as letters from counsellors and attendance records, should be gathered well before the sentencing hearing.

What to do now

• Ask your lawyer to review the lab certificate and the weight of the drugs.
• Keep records of any treatment, counselling or support you have started.
• Do not discuss the case by phone, text or social media.

How we can help

We can explain the realistic sentencing range for your charge and schedule, and argue for the lowest outcome the facts allow. Call (647) 223-1980 for a free consultation.

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