Drug charges in Canada can lead to serious legal consequences—including jail time, even for first-time offenders. While sentencing in most criminal cases allows for judicial discretion, certain drug offences under the Controlled Drugs and Substances Act (CDSA) have historically carried mandatory minimum sentences. These minimums remove flexibility and can dramatically raise the stakes for anyone facing charges.
Although some mandatory minimums have been struck down by the courts, others remain in place or are still pursued by prosecutors. Understanding which drug offences carry mandatory minimums—and how they may affect your defence—is critical if you’re facing a charge under the CDSA.
What Are Mandatory Minimum Sentences?
Mandatory minimums are the lowest possible sentence that a judge must impose when an offender is convicted of a particular offence. They eliminate the judge’s ability to consider lighter penalties, such as a discharge or a conditional sentence (house arrest), even if the circumstances would otherwise justify it.
In the context of drug offences, mandatory minimums are typically tied to:
- The type of drug involved (e.g., cocaine, fentanyl, heroin)
- The quantity of the substance
- The circumstances of the offence (e.g., trafficking near a school or involving a weapon)
- Prior convictions
While some mandatory minimums have been declared unconstitutional, others continue to affect sentencing outcomes—particularly in serious trafficking cases.
Drug Offences That Have Carried Mandatory Minimums
Under the Controlled Drugs and Substances Act, certain offences used to carry mandatory minimum penalties, especially for Schedule I and II drugs. Key examples included:
1. Trafficking or Possession for the Purpose of Trafficking
- Schedule I or II substances (e.g., cocaine, heroin, meth, fentanyl, cannabis before legalization)
- Minimums introduced in 2012 under the Safe Streets and Communities Act
Examples of mandatory minimums (now partially repealed or overturned) included:
- 1 year if the offence was committed for the benefit of a criminal organization
- 2 years if weapons or violence were involved
- 2 years if committed near a school, playground, or other designated area
- 1–2 years if the offender had a prior drug conviction in the previous 10 years
2. Importing and Exporting Controlled Substances
- Minimum 1-year sentence for Schedule I or II substances when aggravating factors applied
- Minimum 2 years if the offence involved more than one kilogram
3. Production of Controlled Substances
- Minimum 6 months to 2 years depending on the drug, number of plants (e.g., cannabis), or presence of aggravating factors like children in the home, traps, or use of electricity theft
Recent Changes to Mandatory Minimums for Drug Offences
In 2022, the Canadian government passed Bill C-5, which repealed several mandatory minimum penalties for drug-related offences. The goal was to promote rehabilitation and reduce the overrepresentation of marginalized communities in the criminal justice system.
Bill C-5 eliminated mandatory minimums for the following offences:
- Trafficking (s. 5(3)(a))
- Possession for the purpose of trafficking
- Importing and exporting
- Production
This change allows judges to once again impose conditional sentences for many non-violent drug offences, such as house arrest or community-based penalties, where appropriate.
However, this does not mean that all mandatory minimums are gone. For certain aggravated cases or where sentencing is governed by precedent, the Crown may still seek significant jail time—even without a statutory minimum.
Does This Mean You Won’t Go to Jail?
Not necessarily. Just because mandatory minimums have been removed or limited doesn’t mean the Crown will seek leniency. Judges still consider:
- The seriousness of the offence
- Quantity and purity of the drugs
- Evidence of trafficking or organized crime
- Criminal history
- Harm to the community
In serious drug trafficking cases, especially involving fentanyl or repeat offenders, jail remains a very real possibility.
What Are the Defences Against Drug Offences?
Even if no mandatory minimum applies, fighting a drug charge is critical to protecting your future. Possible defences include:
- Unlawful search or seizure (Charter breach)
- Lack of knowledge or control over the substance
- Entrapment by undercover officers
- Insufficient evidence that the substance was for trafficking
- Violation of procedural rights
An experienced criminal defence lawyer can challenge how the evidence was obtained, negotiate with the Crown to reduce or withdraw charges, or seek alternative sentencing options like diversion or treatment.
Conditional Sentences Are Back—What Does That Mean?
With the removal of mandatory minimums, conditional sentences (such as house arrest) may once again be available for many drug charges. This can be an alternative to jail where:
- The offence is non-violent
- There are no aggravating factors
- The offender accepts responsibility or is willing to undergo rehabilitation
A conditional sentence still counts as a conviction but can make a major difference in terms of employment, travel, and reintegration.
Schedule a Free Consultation with LichtmanLaw
If you’re facing drug charges and are concerned about mandatory minimums or potential jail time, don’t wait. The landscape of Canadian drug sentencing is changing—but only a skilled lawyer can help you take advantage of those changes.
Contact us now to schedule a free, confidential consultation.