Any substantive changes in this Legislative Summary that have been made since the preceding issue are indicated in bold print.
Bill C-37, An Act to amend the Controlled Drugs and Substances Act and to make related amendments to other Acts was introduced in the House of Commons by the Minister of Health, the Honourable Jane Philpott, on 12 December 2016. The bill was debated in the House of Commons on 31 January and 1 February 2017, and referred to the House of Commons Standing Committee on Health on that same day. The Standing Committee on Health held one meeting on the bill on 9 February 2017, during which it completed clause-by-clause consideration, adopting one amendment to the bill. Bill C-37 was reported back to the House of Commons as amended on 10 February 2017. The bill was passed on third reading in the House of Commons on 15 February 2017. It had first reading in the Senate on 16 February 2017, was debated at the end of February and the beginning of March, and was referred to the Standing Senate Committee on Legal and Constitutional Affairs on 9 March 2017.1
A number of amendments contained in Bill C-37 were introduced during the 2nd Session of the 41st Parliament as part of Bill C-70, An Act to amend the Controlled Drugs and Substances Act and to make related amendments to other Acts (short title: Protection of Communities from the Evolving Dangerous Drug Trade Act).2 Bill C-70 died on the Order Paper with the dissolution of Parliament at the call of the federal election in August 2015.
Bill C-37 amends the Controlled Drugs and Substances Act3 (CDSA) to, among other things:
The bill also makes related amendments to the Customs Act,4 the Proceeds of Crime (Money Laundering) and Terrorist Financing Act,5 the Criminal Code6 and the Seized Property Management Act.7
The amendments to the Customs Act and the Proceeds of Crime (Money Laundering) and Terrorist Financing Act permit officers to open mail that is being imported and exported and weighs 30 g or less.
The CDSA regulates certain types of drugs and associated substances, which are listed in Schedules I to VIII of the Act. The offences in the Act include possession, “double doctoring,”8 trafficking, importing and exporting, and production of substances included in the schedules. The punishment for these offences depends on which schedule applies to the drug in question; however, there are mandatory prison terms under the CDSA, and the most serious drug offences have a maximum penalty of life imprisonment.
Schedule I of the CDSA includes the drugs that are commonly thought of as the most “dangerous,” e.g., opium, cocaine and methamphetamine. Schedule II lists cannabis and its derivatives, while Schedule III includes lysergic acid diethylamide (LSD), psilocybin and mescaline. Schedule IV includes barbiturates, benzodiazepines and anabolic steroids, while Schedule V lists a single drug - propylhexedrine. Schedule VI is a list of drug precursors, including ephedrine, potassium permanganate, sulphuric acid and toluene. Finally, Schedules VII and VIII list specific amounts of cannabis resin and cannabis (marijuana) with reference to the possession and trafficking offences.
The CDSA is designed to meet Canada’s obligations under several international protocols. Three international conventions on illicit drugs cover cannabis, cocaine, heroin, other psychotropic substances and their precursors: the Single Convention on Narcotic Drugs, 1961;9 the Convention on Psychotropic Substances, 1971;10 and the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, 1988.11 The 1961 Single Convention calls for states to limit the production of and trade in prohibited substances to the quantity needed to meet their medical and scientific needs. Each state is expected to implement domestic legislative and regulatory measures to establish the controls necessary within its own territory to fulfill the commitments of the convention. Under the 1971 Convention, psychotropic substances (such as tetrahydrocannabinol [THC] in cannabis) are to be subjected to controls similar to those that apply under the 1961 Single Convention. The 1988 Convention calls on parties to take action to control the illicit cultivation, production and distribution of drugs of abuse.
Canada’s drug laws do not prohibit all possession or use of controlled drugs and substances. Thus, the Narcotic Control Regulations12 allow for the distribution of narcotic drugs by pharmacists, medical practitioners and hospitals, and outline the records that must be kept to account for their distribution. For example, pursuant to section 53(3) of the regulations, a medical practitioner may administer methadone, if he or she has an exemption under section 56 of the CDSA with respect to this drug. Section 56 of the CDSA gives the power to the Minister of Health to exempt any person or controlled substance from the application of the CDSA if the exemption is necessary for a medical or scientific purpose or is otherwise in the public interest. The minister may also issue a licence to cultivate, gather or produce opium poppy or cannabis for scientific purposes.13
In April 2016, a significant increase in the number of illicit drug overdose deaths in British Columbia prompted its provincial health officer to declare a public health emergency.14 According to the report of the Coroners Service of British Columbia issued on 17 March 2017, the total number of deaths resulting from the use of illicit drugs in British Columbia was nearly 80% higher in 2016 (922 deaths) than it was in 2015 (513 deaths).15 Other provinces have experienced increases in the number of opioid-related deaths, but to a lesser extent than in British Columbia.
The increase in deaths is largely linked to the importation of fentanyl and fentanyl analogues and their use in the manufacture of illicit substances. Fentanyl is a synthetic opioid analgesic that is similar to morphine but is 50 to 100 times more potent.16 Carfentanil, a fentanyl analogue, is approximately 10,000 times more potent than morphine and 100 times more potent than fentanyl.17
As part of the Government of Canada’s response to the opioid crisis, on 6 July 2016, the federal Minister of Health signed an interim order to allow the antidote naloxone, which can stop or reverse the effects of an overdose, to be made available in Canada as a nasal spray on a temporary basis.18 Prior to this interim order, naloxone was only available in Canada in an injectable form.
In addition, the minister announced an action plan on opioid misuse, which seeks to address the crisis by:19
On 18 November 2016, a national opioid conference was co-hosted by the federal Minister of Health and Ontario’s Minister of Health and Long-Term Care, the Honourable Eric Hoskins. The following day, an opioid summit was held. The product of that summit was a Joint Statement of Action to Address the Opioid Crisis,20 which included commitments by Health Canada, most provincial and territorial health ministries, and various stakeholders, including health profession regulatory authorities.
Also on 18 November 2016, Regulations Amending the Precursor Control Regulations (Fentanyl Precursors) were registered.21 These regulations added six precursor chemicals that are used in the production of fentanyl to Part I of Schedule VI (Class A Precursors)22 of the CDSA. Chemicals listed in Schedule VI can be imported, exported or possessed for the purpose of export only in accordance with the regulations.
On 22 September 2016, the House of Commons Standing Committee on Health adopted a motion to “undertake an emergency study of the opioid crisis in Canada.”23 The Committee heard from a range of stakeholders over the course of five meetings held in October 2016, and presented its report, entitled Interim Report and Recommendations on the Opioid Crisis in Canada, to the House of Commons on 18 November 2016.24 The report contained 38 recommendations, some of which are reflected in Bill C-37, including the recommendation that Canada Border Services Agency officials be allowed to open suspect packages that weigh less than 30 g (recommendation 33), and that the Government of Canada regulate commercial pill presses (recommendation 35).
In its report, the Committee also recommended that the CDSA provisions relating to exemptions for supervised consumption sites be repealed or significantly amended (recommendation 8). The Committee heard that the existing provisions contained in the CDSA relating to exemptions that could be granted by the Minister of Health “for medical or scientific purposes” or because the exemption “is otherwise in the public interest” were a barrier to establishing supervised consumption sites.25
Bill C-37 contains a preamble and 73 clauses. The following discussion highlights the more substantive aspects of the bill; it does not review every clause.
Section 7.1 of the CDSA deals with the offence of possessing, producing, selling or importing anything with the knowledge that it will be used to produce or traffic in methamphetamine.26 The maximum penalty for the section 7.1 offence is imprisonment for 10 years less a day.
Clause 6 of Bill C-37 amends section 7.1 of the CDSA in a number of ways. For the first time, it includes the transport of substances in the offence and specifies that there be an “intention” to produce or traffic in what is now called a “controlled substance” (as opposed to simply knowing that this will occur). Further, the offence is no longer restricted to methamphetamines. A “controlled substance” is defined in section 2(1) of the CDSA as a substance included in Schedule I, II, III, IV or V. The punishment for this offence is changed from a solely indictable offence to a hybrid offence (one that can be punished as an indictable or a summary conviction offence). The punishment is also now tied to the type of controlled substance being produced or trafficked. The maximum punishment is 10 years’ imprisonment for indictable offences in relation to Schedule I, II, III or V substances (18 months on summary conviction), but there is a lesser maximum punishment of three years’ imprisonment for an indictable offence in relation to a Schedule IV substance (12 months on summary conviction).
Clause 50 of Bill C-37 has the effect of eliminating all substances from Schedule V of the CDSA. Clause 45 then provides the means by which substances can be added to Schedule V. New section 60.1 of the CDSA allows the Minister of Health to add, by order, any item to Schedule V for up to one year, or to extend that period for up to another year, if the minister has reasonable grounds to believe that the item:
The minister can also order the deletion of any item from Schedule V.
The addition and deletion of items from Schedule V by ministerial order is more expeditious than the traditional regulation-making process for Schedules I to IV and VI to VIII as set out in section 60 of the CDSA. The backgrounder to Bill C-70, Bill C-37’s predecessor, states that this process will allow for a quicker response to emerging illicit drugs.27 The change to the process for adding items to Schedule V is significant for the many other amendments in Bill C-37 that make reference to it: the bill amends section 5 of the CDSA (“Trafficking in substance”), section 6 (“Importing and exporting”), section 7 (“Production of substance”) and section 10 (“Purpose of sentencing”) to add a reference to the items that may be found in the new Schedule V.
The current CDSA provisions dealing with offence-related property are divided in two. Part II (“Enforcement”) consists of sections 11 to 13 (“Search, Seizure and Detention”), sections 14 and 15 (“Restraint Orders”) and sections 16 to 22 (“Forfeiture of Offence-related Property”), while Part III deals with the “Disposal of Controlled Substances.” As the headings imply, Part II deals with all types of property considered to be related to the offence, while Part III deals specifically with the means to dispose of controlled substances that have been seized. Section 13 of the CDSA states that sections 489.1 and 490 of the Criminal Code apply to offence-related property but not to controlled substances that have been seized; those are dealt with under the provisions of the CDSA and its regulations. Section 489.1 of the Criminal Code deals with the disposition of property seized by a peace officer, while section 490 sets out the procedure to follow when seized items are brought before a court or a report is made and further detention of items is requested. The forfeiture of offence-related property, however, remains governed by sections 16 to 22 of the CDSA.
A similar division of seized property is maintained in the amended CDSA. Clause 1(6) of Bill C-37 sets out a new definition of “chemical offence-related property” as offence-related property that is a chemical or a precursor. There is also a new category of “non-chemical offence-related property.”
Under the amended CDSA, Part II (“Enforcement”) is shortened to sections 11 to (new) 12.1. New section 12.1 sets out detailed reporting requirements when any law enforcement officer acquires a controlled substance, a precursor or chemical offence-related property (clause 10).
A new Part III to the CDSA, entitled “Disposition,” begins with an amended section 13, which specifies that the Criminal Code sections dealing with restitution and detention of seized property apply to non-chemical offence-related property, while the CDSA and its regulations apply to seized property that is a controlled substance, a precursor or chemical offence-related property. Division 1 of this part (sections 14 to 22) sets out the ways to deal with non-chemical offence-related property, while Division 2 (sections 23 to 29) deals with the treatment of controlled substances, precursors and chemical offence-related property.
Section 14 of the current CDSA provides for restraint orders, which are orders by a court prohibiting any person from dealing with offence-related property otherwise than in the manner specified in the order. Bill C-37 restricts restraint orders to non-chemical offence-related property. Section 14.1 of the current CDSA provides for management orders, that is, orders by a judge for someone to take control of and manage offence-related property. The powers of the property manager explicitly include the power to make a sale of property that is perishable or rapidly depreciating and the power to destroy property that has little or no value. In the renumbered section 15.1, Bill C-37 adds to this list a power to have property (other than real property) forfeited to the state. The person managing offence-related property must give notice specifying a period of 60 days within which a person may apply to the court asserting his or her interest in the property. If no such application is made, the property at issue is forfeited.
Sections 16 to 22 of the current CDSA provide for the forfeiture of offence-related property upon conviction for a designated substance offence.28 These sections are amended by Bill C-37 in the following ways:
Sections 24 to 29 of the current CDSA deal with the disposal of controlled substances. Section 24 provides for an application to be made to a court for an order that a seized substance be returned. If the court is satisfied that the applicant is legally entitled to possession of the controlled substance and that it is not needed in any legal proceeding, then it is to be returned to the applicant. Under section 25, if no application for the return of a controlled substance is made within 60 days of seizure, and it is not required for any legal proceeding, it is to be delivered to the minister to be disposed of in accordance with the regulations. Under section 26, if the minister has reasonable grounds to believe that a seized controlled substance constitutes a potential security, public health or safety hazard, he or she may apply to the court for an order that the substance be forfeited to the Crown. Section 27 provides for the disposal of a controlled substance at the conclusion of legal proceedings, while section 28 allows for the disposal of such substances with the consent of the lawful owner.
Clauses 22 to 24 of Bill C-37 amend sections 24 to 29 of the CDSA to create Division 2 of Part III concerning controlled substances, precursors and chemical offence-related property. New section 23 of the CDSA reflects the wording of section 489.1 of the Criminal Code. This provision specifies that where the lawful possession of seized property is not at issue and the continued detention of the property is not required for the purposes of any legal proceeding, it shall be returned to the lawful owner. The other amendments in this section of the bill extend the disposition measures beyond controlled substances to encompass precursors and chemical offence-related property. In the case of property whose storage or handling poses a risk to health or safety (new section 26), the circle of those persons legally able to dispose of it is expanded beyond the minister to include a peace officer or a person prescribed by regulation, presumably in order to facilitate the disposal of dangerous substances. New section 29 of the CDSA requires a detailed report of the disposition of a controlled substance, a precursor or chemical offence-related property to be sent to the minister within 30 days of the disposition. This kind of reporting is currently required for property seized pursuant to a warrant. Under section 489.1 of the Criminal Code, a report using Form 5.2 must be made to the justice who issued the warrant in question.
Part IV of the CDSA (“Administration and Compliance” [sections 30 to 32]) sets out the powers of inspectors designated by the minister to enforce the Act, as well as offences relating to inspection. Under section 31 of the CDSA, an inspector may search a place of business of any person authorized to deal in a controlled substance or a precursor and seize materials and may also search a dwelling-place with the consent of the occupant or, if entry is refused, under the authority of a warrant. In addition to the offence of obstructing an inspector, section 32 of the CDSA makes it an offence to make a false or misleading statement to an inspector or to remove, alter or interfere with anything seized or detained by an inspector.
Clause 26(1) of Bill C-37 amends section 31 of the CDSA to specify that an inspector may enter a vehicle to ensure compliance with the Act and may order it to be seized or its movement restricted. Inspectors are also now able to order a person to start or stop an activity and to have persons found in an inspected place identify themselves. Sections 31(1.1) to 31(3) of the CDSA are replaced by new section 31(1.1), which sets out the reasons an inspector may enter a place, including a place where an authorized activity was taking place but the licence has now expired. A warrant to enter a dwelling-place must now make reference to these conditions of entry.
Part V of the CDSA (“Administrative Orders for Contraventions of Designated Regulations” [sections 33 to 43]) sets out the procedure by which the minister can deal with suspected contraventions of designated regulations by serving a notice to appear.32 In cases where the contravention poses a substantial risk of immediate danger to the health or safety of any person, the minister may, without notice, make an interim order prohibiting any activity that would otherwise be permitted under a licence, permit or authorization. A notice to appear and any interim order are sent by the minister to an adjudicator, who is to hear the matter expeditiously. Where the adjudicator determines that a person has contravened the designated regulation, he or she must notify the person of the opportunity to make representations to the minister.
After considering the adjudicator’s determination and any representations from the person, the minister may make an order either to prohibit activities or to subject them to conditions; in order to do this, the minister may suspend, cancel or amend any licence, permit or authorization granted to the person. It is an offence to contravene an order or an interim order under Part V of the CDSA. Section 46 of the Act indicates that this is a hybrid offence punishable as an indictable offence by up to three years’ imprisonment and/or a maximum fine of $5,000, or as a summary conviction offence punishable by up to six months’ imprisonment and/or a maximum fine of $1,000.
Bill C-37 changes the title of Part V to “Administrative Monetary Penalties.” This part now creates a streamlined means of prosecuting violations of the CDSA and its regulations that does not rely on the criminal process. New section 34 provides for the designation of each violation of the Act or regulations as a minor, serious or very serious violation. The maximum penalty for a violation is increased to $30,000. New section 35 sets out factors to be taken into account when determining a penalty (unless there is a fixed penalty), including the offending person’s history of compliance with the provisions of the Act or regulations, any harm to public health or safety that resulted or could have resulted from the violation, and whether the person made reasonable efforts to mitigate or reverse the violation’s effects.
New section 38 of the CDSA amends the penalty structure for violations of designated regulations. If the person named in a notice of violation pays the amount of the penalty, he or she is deemed to have committed the offence in question, and the proceedings in respect of the violation are ended. Instead of paying the penalty, the person named in the notice of violation may, if the penalty is $5,000 or more, enter into a compliance agreement with the minister to adhere to the order to which the violation relates or request a review by the minister of the acts or omissions that constitute the alleged violation or the amount of the penalty. If the person named in the notice does not pay the penalty or exercise the option of entering into a compliance agreement or requesting a review, he or she is deemed to have committed the violation identified in the notice.
Under new section 39 of the CDSA, the successful completion of a compliance agreement ends any legal proceedings for a violation of a designated regulation and can lead to the reduction, in whole or in part, of the penalty for the violation. Failure to abide by the terms of a compliance agreement can lead to a doubling of the penalty or a forfeiting of any security that had been offered as part of the agreement. Under new section 41 of the CDSA, a ministerial review can result in a finding that there has been no violation of a designated regulation or in a correction of the amount of the penalty imposed. Once the confirmed or corrected penalty has been paid, any legal proceedings in respect of the violation are ended.
New sections 43.1 to 43.91 of the CDSA set out certain rules concerning violations. Although common law principles will apply to furnish justifications or excuses for violations (new section 43.1(2)), a person named in a notice of violation has no defence by reason that he or she exercised due diligence to prevent the violation or reasonably and honestly believed in the existence of facts that, if true, would exonerate him or her (new section 43.1(1)). New section 43.4 holds a corporate defendant liable if an employee or agent of that company committed a violation while acting in the course of his or her employment or scope of his or her authority. New section 43.7 indicates that proceedings in respect of a violation must begin within six months of the facts constituting the alleged violation becoming known by the minister.
Part VI of the CDSA (“General”) contains a number of miscellaneous provisions dealing with, among other things, “Offence and Punishment” (section 46), “Evidence and Procedure” (sections 47 to 54), “Regulations, Exemptions and Disqualifications” (sections 55 to 59), and “Amendments to Schedules” (section 60).
A new section 45.1, entitled “Ministerial Orders,” is added to the CDSA by Bill C-37 (clause 30). This section gives the minister the power to issue orders requiring a person authorized to deal with controlled substances or precursors to verify compliance with the Act or regulations or to address an issue of public health or safety. The minister may also order such a person to remedy any non-compliance with the Act or regulations. Again, this seems to be the creation of a procedure to deal expeditiously with public health issues. Such orders can be reviewed at the request of the person who was ordered to provide information or to take measures.
Clause 34 adds “Prohibitions” as a new heading to the CDSA after section 46, and prohibits the importation of a designated device unless it is registered with the minister (new section 46.3(1)). The definition of “designated device” is added to section 2(1) of the CDSA as a device included in new Schedule IX. This schedule (which targets tablet presses and encapsulators) is added to the CDSA by Bill C-37 (clause 51), and the information and other requirements related to registration are set out in new sections 46.3(2) to 46.3(7). Also included under the new “Prohibitions” heading is the requirement for holders of licences, permits, authorizations or exemptions to comply with established terms and conditions (new section 46.2).
Clause 39 replaces the existing heading, “Regulations, Exemptions and Disqualifications” with the new heading, “Regulations and Exemptions.” A number of new regulation-making authorities are added or amended to include references to designated devices. A new regulation-making authority with respect to tamper-resistant properties had been part of Bill C-70, but references to tamper resistance do not appear in Bill C-37.
References to law enforcement activities in the regulatory powers set out in section 55 of the CDSA are amended to include references to military police.
Existing section 56(1) permits the minister to grant an exemption from the application of the CDSA to persons, controlled substances or precursors if the exemption “is necessary for a medical or scientific purpose or is otherwise in the public interest.” Current section 56(2) prevents the minister from granting a section 56(1) exemption to:
Clause 41 of Bill C-37 amends section 56(2) to instead prevent the granting of an exemption for a medical purpose that would allow activities in relation to the aforementioned categories at a supervised consumption site. Exemptions that are necessary for medical purposes in relation to activities at supervised consumption sites that involve illegally obtained controlled substances or precursors are now permitted under revised section 56.1(1) (clause 42).
Existing section 56.1 sets out definitions and information to be included with an application (listed in sections 56.1(3)(a) to 56.1(3)(z.1)), and principles related to granting exemptions for supervised consumption sites. The application criteria provisions are replaced by new section 56.1(2), which lists information to be included with an application. The information to be included, if any, relates to:
- the impact of the site on crime rates;
- the local conditions indicating a need for the site;
- the regulatory structure in place to support the site;
- the resources available to support the maintenance of the site; and
- expressions of community support or opposition.
During clause-by-clause consideration of the bill by the House of Commons Standing Committee on Health, the word “regulatory” in section 56.1(2)(c) was replaced with “administrative.”
Clauses 52 and 53 of Bill C-37 repeal the sections of the Customs Act and the Proceeds of Crime (Money Laundering) and Terrorist Financing Act that prohibit officers from opening imported or exported mail that weighs 30 g or less unless they have the consent of the addressee or the sender. These clauses also repeal the provision that permits an officer to cause mail to be opened in the officer’s presence by the addressee, the sender or an authorized person.
Clause 54 of the bill amends the provisions of the Criminal Code dealing with the seizure and restraint of property (section 83.13) to accord with the new language for restraint and management orders in the CDSA. For example, the amended provisions in both Acts regarding the forfeiture of seized property are very similar. By the same token, the management order provisions in section 462.331 of the Criminal Code are amended to accord with management orders under the CDSA, including a provision that property “shall” be (rather than “may” be) destroyed if a court is satisfied that it has little or no financial or other value (clause 58). A corresponding amendment is made to section 490.81 of the Criminal Code management orders (clause 68).
The Seized Property Management Act authorizes the Minister of Public Works and Government Services to manage certain property seized in connection with designated offences, seized pursuant to a warrant, restrained pursuant to a restraint order, or forfeited to the Crown. Where property is forfeited and disposed of, the Act provides authority for the sharing of the proceeds. As is the case in other parts of Bill C-37, section 7(2.4) of the Seized Property Management Act is amended to require that seized property be destroyed if a court is satisfied that it has little or no financial or other value. A new section 7(2.5) allows seized property to be forfeited where notice is given and no one asserts an interest in the property within a 60-day period (clause 72).
* Notice: For clarity of exposition, the legislative proposals set out in the bill described in this Legislative Summary are stated as if they had already been adopted or were in force. It is important to note, however, that bills may be amended during their consideration by the House of Commons and Senate, and have no force or effect unless and until they are passed by both houses of Parliament, receive Royal Assent, and come into force. [ Return to text ]
** Much of the content of this Legislative Summary is taken from a previous publication: Robin MacKay, Legislative Summary of Bill C-70: An Act to amend the Controlled Drugs and Substances Act and to make related amendments to other Acts, Publication no. 41-2-C70-E, Parliamentary Information and Research Service, Library of Parliament, Ottawa, 6 October 2015. [ Return to text ]
(667 kB, 64 pages), 1st Session, 42nd Parliament (as passed by the House of Commons, 15 February 2017). [ Return to text ] (664 kB, 44 pages). The Single Convention came into force for Canada on 13 December 1964, while the Protocol came into force on 4 September 1976. [ Return to text ] (813 kB, 28 pages). This convention came into force for Canada on 9 December 1988. [ Return to text ] (743 kB, 31 pages). This convention came into force for Canada on 11 November 1990. [ Return to text ] (416 kB, 19 pages), p. 5. [ Return to text ] (1 MB, 115 pages), SOR/2016-294, 18 November 2016, in Canada Gazette, Part II, Vol. 150, No. 24, 30 November 2016, p. 4251. [ Return to text ]the whole or any part of a building or structure that is kept or occupied as a permanent or temporary residence, and includes
- a building within the curtilage of a dwelling-house that is connected to it by a doorway or by a covered and enclosed passage-way, and
- a unit that is designed to be mobile and to be used as a permanent or temporary residence and that is being used as such a residence; (maison d’habitation) [ Return to text ]
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