Bill S-10

3rd Session, 40th Parliament,

59 Elizabeth II, 2010

senate of canada

BILL S-10

An Act to amend the Controlled Drugs and Substances Act and to make related and consequential amendments to other Acts

Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:

SHORT TITLE

1. This Act may be cited as the Penalties for Organized Drug Crime Act.

CONTROLLED DRUGS AND SUBSTANCES ACT

2. (1) Paragraph 5(3)(a) of the Controlled Drugs and Substances Act is replaced by the following:

(a) subject to paragraph (a.1), if the subject matter of the offence is a substance included in Schedule I or II, is guilty of an indictable offence and liable to imprisonment for life, and

(i) to a minimum punishment of imprisonment for a term of one year if

(A) the person committed the offence for the benefit of, at the direction of or in association with a criminal organization, as defined in subsection 467.1(1) of the Criminal Code,

(B) the person used or threatened to use violence in committing the offence,

(C) the person carried, used or threat-ened to use a weapon in committing the offence, or

(D) the person was convicted of a designated substance offence, or had served a term of imprisonment for a designated substance offence, within the previous 10 years, or

(ii) to a minimum punishment of impris-onment for a term of two years if

(A) the person committed the offence in or near a school, on or near school grounds or in or near any other public place usually frequented by persons under the age of 18 years,

(B) the person committed the offence in a prison, as defined in section 2 of the Criminal Code, or on its grounds, or

(C) the person used the services of a person under the age of 18 years, or involved such a person, in committing the offence;

(a.1) if the subject matter of the offence is a substance included in Schedule II in an amount that is not more than the amount set out for that substance in Schedule VII, is guilty of an indictable offence and liable to imprisonment for a term of not more than five years less a day;

(2) Subsections 5(4) to (6) of the Act are replaced by the following:

(5) For the purposes of applying subsection (3) in respect of an offence under subsection (1), a reference to a substance included in Schedule I, II, III or IV includes a reference to any substance represented or held out to be a substance included in that Schedule.

(6) For the purposes of paragraph (3)(a.1) and Schedule VII, the amount of the substance means the entire amount of any mixture or substance, or the whole of any plant, that contains a detectable amount of the substance.

3. Paragraph 6(3)(a) of the Act is replaced by the following:

(a) if the subject matter of the offence is a substance included in Schedule I in an amount that is not more than one kilogram, or in Schedule II, 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 purposes 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;

(a.1) if the subject matter of the offence is a substance included in Schedule I in an amount that is more than one kilogram, is guilty of an indictable offence and liable to imprisonment for life and to a minimum punishment of imprisonment for a term of two years;

4. (1) Paragraphs 7(2)(a) and (b) of the Act are replaced by the following:

(a) if the subject matter of the offence is a substance included in Schedule I, is guilty of an indictable offence and liable to imprisonment for life and to a minimum punishment of imprisonment for a term of three years if any of the factors set out in subsection (3) apply and for a term of two years in any other case;

(a.1) if the subject matter of the offence is a substance included in Schedule II, other than cannabis (marihuana), is guilty of an indictable offence and liable to imprisonment for life, and to a minimum punishment of imprisonment

(i) for a term of one year if the production is for the purpose of trafficking, or

(ii) for a term of 18 months if the production is for the purpose of trafficking and any of the factors set out in subsection (3) apply;

(b) if the subject matter of the offence is cannabis (marihuana), is guilty of an indictable offence and liable to imprisonment for a term of not more than 14 years, and to a minimum punishment of

(i) imprisonment for a term of six months if the number of plants produced is less than 201 and more than five, and the production is for the purpose of trafficking,

(ii) imprisonment for a term of nine months if the number of plants produced is less than 201, the production is for the purpose of trafficking and any of the factors set out in subsection (3) apply,

(iii) imprisonment for a term of one year if the number of plants produced is more than 200 and less than 501,

(iv) imprisonment for a term of 18 months if the number of plants produced is more than 200 and less than 501 and any of the factors set out in subsection (3) apply,

(v) imprisonment for a term of two years if the number of plants produced is more than 500, or

(vi) imprisonment for a term of three years if the number of plants produced is more than 500 and any of the factors set out in subsection (3) apply;

(2) Section 7 of the Act is amended by adding the following after subsection (2):

(3) The following factors must be taken into account in applying paragraphs (2)(a) to (b):

(a) the person used real property that belongs to a third party in committing the offence;

(b) the production constituted a potential security, health or safety hazard to persons under the age of 18 years who were in the location where the offence was committed or in the immediate area;

(c) the production constituted a potential public safety hazard in a residential area; or

(d) the person set or placed a trap, device or other thing that is likely to cause death or bodily harm to another person in the location where the offence was committed or in the immediate area, or permitted such a trap, device or other thing to remain or be placed in that location or area.

5. The Act is amended by adding the following after section 7:

Notice

8. The court is not required to impose a minimum punishment unless it is satisfied that the offender, before entering a plea, was notified of the possible imposition of a minimum punishment for the offence in question and of the Attorney General’s intention to prove any factors in relation to the offence that would lead to the imposition of a minimum punishment.

Report to Parliament

8.1 (1) Within five years after this section comes into force, a comprehensive review of the provisions and operation of this Act, including a cost-benefit analysis of mandatory minimum sentences, shall be undertaken by such committee of the Senate, of the House of Commons or of both Houses of Parliament as may be designated or established for that purpose.

(2) The committee referred to in subsection (1) shall, within one year after a review is undertaken pursuant to that subsection, submit a report to Parliament including a statement of any changes the committee recommends.

6. (1) The portion of subsection 10(2) of the Act before paragraph (a) is replaced by the following:

(2) If a person is convicted of a designated substance offence for which the court is not required to impose a minimum punishment, the court imposing sentence on the person shall consider any relevant aggravating factors including that the person

(2) Section 10 of the Act is amended by adding the following after subsection (3):

(4) A court sentencing a person who is convicted of an offence under this Part may delay sentencing to enable the offender

(a) to participate in a drug treatment court program approved by the Attorney General; or

(b) to attend a treatment program under subsection 720(2) of the Criminal Code.

(5) If the offender successfully completes a program under subsection (4), the court is not required to impose the minimum punishment for the offence for which the person was convicted.

7. Schedule I to the Act is amended by adding the following after item 18:

19.       Amphetamines, their salts, derivatives, isomers and analogues and salts of derivatives, isomers and analogues including:

(1)       amphetamine (α-methylbenzene-ethanamine)

(2)       N-ethylamphetamine (N-ethyl-α-methylbenzeneethanamine)

(3)       4-methyl-2,5-dimethoxyamphetamine (STP) (2,5-dimethoxy-4,α-dimethylbenzeneethanamine)

(4)       3,4-methylenedioxyamphetamine (MDA) (α-methyl-1,3-benzodioxole-5-ethanamine)

(5)       2,5-dimethoxyamphetamine (2,5-di-methoxy-α-methylbenzene-ethanamine)

(6)       4-methoxyamphetamine (4-methoxy-α-methylbenzene­ethanamine)

(7)       2,4,5-trimethoxyamphetamine (2,4,5-trimethoxy-α-methylbenzene­ethanamine)

(8)       N-methyl-3,4-methylenedioxy- amphetamine (N,α-dimethyl-1,3-benzodioxole-5-ethanamine)

(9)       4-ethoxy-2,5-dimethoxyamphetamine (4-ethoxy-2,5-dimethoxy-α-methylbenzeneethanamine)

(10)       5-methoxy-3,4-methylenedioxy- amphetamine (7-methoxy-α-methyl-1,3-benzo­dioxole-5-ethanamine)

(11)       N,N-dimethyl-3,4-methylenedioxy- amphetamine (N,N, α-trimethyl-1,3-benzodioxole-5-ethanamine)

(12)       N-ethyl-3,4-methylenedioxy- amphetamine (N-ethyl-α-methyl-1,3-benzo­dioxole-5-ethanamine)

(13)       4-ethyl-2,5-dimethoxyamphetamine (DOET) (4-ethyl-2,5-dimethoxy-α-methylbenzeneethanamine)

(14)       4-bromo-2,5-dimethoxyamphetamine (4-bromo-2,5-dimethoxy-α-methylbenzeneethanamine)

(15)       4-chloro-2,5-dimethoxyamphetamine (4-chloro-2,5-dimethoxy-α-methylbenzeneethanamine)

(16)       4-ethoxyamphetamine (4-ethoxy-α-methylbenzene­ethanamine)

(17)       Benzphetamine (N-benzyl-N,α-dimethylbenzene­ethanamine)

(18)       N-Propyl-3,4-methylenedioxy- amphetamine (α-methyl-N-propyl-1,3-benzo­dioxole-5-ethanamine)

(19)       N-(2-Hydroxyethyl)-α-meth-ylbenzene­ethanamine

(20)       N-hydroxy-3,4-methylenedioxy- amphetamine (N-[α-methyl-3,4-(methylenedioxy)phenethyl]hydroxylamine)

(21)       3,4,5-trimethoxyamphetamine (3,4,5-trimethoxy-α-methyl-benzene­ethanamine)

20.       Flunitrazepam (5-(o-fluorophenyl)-1,3-dihydro-1-methyl-7-nitro-2H-1,4-benzodiazepin-2-one) and any of its salts or derivatives

21.       4-hydroxybutanoic acid (GHB) and any of its salts

8. Item 1 of Schedule III to the Act is repealed.

9. Items 25 and 26 of Schedule III to the Act are repealed.

RELATED AMENDMENTS

An Act to amend the Criminal Code (firearms) and the Firearms Act

10. Section 8 of An Act to amend the Criminal Code (firearms) and the Firearms Act, chapter 8 of the Statutes of Canada, 2003, is repealed.

Criminal Code

11. Paragraph 515(6)(d) of the Criminal Code is replaced by the following:

(d) with having committed an offence punishable by imprisonment for life under any of sections 5 to 7 of the Controlled Drugs and Substances Act or the offence of conspiring to commit such an offence.

National Defence Act

12. Subparagraph (a)(ii) of the definition “designated offence” in section 153 of the English version of the National Defence Act is replaced by the following:

(ii) an offence punishable by imprisonment for life under subsection 5(3), 6(3) or 7(2) of the Controlled Drugs and Substances Act, or

CONSEQUENTIAL AMENDMENTS

Criminal Code

13. Paragraph 515(4.1)(c) of the Criminal Code is replaced by the following:

(c) an offence relating to the contravention of any of sections 5 to 7 of the Controlled Drugs and Substances Act,

14. Subparagraph 553(c)(xi) of the Act is replaced by the following:

(xi) paragraph 5(3)(a.1) of the Controlled Drugs and Substances Act.

National Defence Act

15. Paragraph 147.1(1)(c) of the National Defence Act is replaced by the following:

(c) relating to the contravention of any of sections 5 to 7 of the Controlled Drugs and Substances Act, or

COMING INTO FORCE

16. The provisions of this Act, other than sections 11 and 12, come into force on a day or days to be fixed by order of the Governor in Council.