Preliminary Considerations

• Author: Nathan Gorham/Jeremy Streeter/Breana Vandebeek
• Pages: 1-16

1

Preliminary

Considerations

1

I. Introduction ............................................. 

II. The Prosecuting Agency: The PPSC .......................... 

A. The Decision to Prosecute ............................ 

B. Recent Additions to the Deskbook ...................... 

III. The Governing Statute: The CDSA ........................... 

A. CDSA Oences ..................................... 

B. The CDSA Schedules ................................ 

C. Other Provisions in the CDSA ......................... 

D. Relevant Criminal Code Provisions ..................... 

IV. Situating the Accused ..................................... 

V. Assessing the Evidence .................................... 

© 2024 Emond Montgomery Publications. All Rights Reserved.

2 Prosecuting and Defending Drug Cases

I. Introduction

The COVID-19 pandemic has had a profound impact on all Canadians. Most would

agree, however, that the impact has been disproportionately felt by the most vulner-

able and disadvantaged members of our society. The pandemic has forced many of us

to acknowledge, and examine, these disparities. Hopefully, if there is a silver lining to

a global pandemic that has killed so many, it is that we as Canadians can emerge with

a greater commitment to helping those of us who need it most.

One such example is people suering from substance use issues. Many were strug-

gling even before COVID-19 came along. The rise in the prevalence of fentanyl in

particular was a troubling trend because it led to a dramatic increase in overdose-

related deaths. What has come to be known as the “opioid crisis” was in full swing.

COVID-19 did not help. During the first year of the pandemic, there was a

95 percent increase in apparent opioid toxicity deaths in Canada compared to the

year before. From January to September 2021, 5,368 Canadians died of apparent

opioid toxicity: that is a rate of 20 per day.1 To put that in perspective, about three

times more Canadians died of opioid overdoses in those nine months than in motor

vehicle crashes the year before.2

This grim reality had led to some new approaches to drug policy. On May 1, 2022,

the federal Minister of Mental Health and Addictions announced that the province

of British Columbia had been granted an exemption under section 56(1) of the

Controlled Drugs and Substances Act,3 decriminalizing the possession of up to

2.5 grams of all opioids (including fentanyl), cocaine, methamphetamine, and

MDMA for personal use. This exemption is in eect for three years, from January 31,

2023 until January 31, 2026. This is the first move of its kind in Canada.

At the same time, sentences imposed on those convicted of drug tracking, and

in particular fentanyl tracking, remain high. The Supreme Court of Canada made

the point bluntly in R v Parranto,4 where Moldaver J, in his concurring reasons, said:

The time has thus come for our perception of the gravity of largescale tracking in

fentanyl to accord with the gravity of the crisis it has caused. Largescale tracking in

fentanyl is not a crime marked merely by the distribution and sale of an illicit substance;

rather, it is a crime marked by greed and the pursuit of profit at the expense of violence,

death, and the perpetuation of a public health crisis previously unseen in Canadian

society. In many ways, “[t]racking infentanyl is almost the equivalent of putting

1 Special Advisory Committee on the Epidemic of Opioid Overdoses, “Opioid- and Stimulant-

related Harms in Canada” (last modified 27 March 2023), online: Government of Canada

<https://health-infobase.canada.ca/substance -related-harms/opioids-stimu lants>.

2 Transport Canada, “Canadian Motor Vehicle Trac Collision Statistics: 2020” (last modified

1 February 2022), online: Government of Canada <https://tc.canada.ca/en/road-transporta-

tion/statistics-data/canadian-motor-vehicle-trac-collision-statistics-2020>.

3 SC1996, c 19 [CDSA].

4 2021 SCC 46.

© 2024 Emond Montgomery Publications. All Rights Reserved.