Importing

An accused is not required to physically bring the drugs into Canada on their person. The act of causing the drugs to be brought into Canada may be sufficient to establish the actus reus of the offence.

The Crown is not necessarily required to prove that the accused knew the precise identity of the controlled substance imported. However, the Crown must prove the required elements of the offence, including the accused’s knowledge relating to the controlled substance, beyond a reasonable doubt.

Factual Innocence: Failure of the Crown to prove every essential element of the specific offence beyond a reasonable doubt.

Duress: Under section 17 of the Criminal Code, the defence of duress exists where one commits an offence under compulsion of threats of immediate death or bodily harm from a person who is present when the offence is committed. The accused must have believed that the threats would be carried out and cannot be a party to a conspiracy or association whereby a person is subject to compulsion. This defence cannot be invoked with certain offences, including specified assault-related offences, bodily harm offences, murder, arson, kidnapping, and others.

Necessity: The defence of necessity may be invoked in emergency-type situations. In R v Latimer, 2001 SCC 1, the Supreme Court of Canada set out three factors relevant to the defence of necessity:

• The accused must be in a situation of imminent peril or danger;
• The accused must have had no reasonable legal alternative to breaking the law; and
• The harm inflicted by the accused must be proportional to the harm avoided by the accused.

Entrapment: Entrapment may arise where police induce a person to commit a criminal act in circumstances recognized by Canadian law as entrapment. The defence may be available where police provide an opportunity to commit an offence without reasonable suspicion or induce a person suspected of criminal activity to commit an offence through improper means.

Violation of Charter Rights: Under the Canadian Charter of Rights and Freedoms, individuals are afforded specific rights, including:

• the right against unreasonable search and seizure;
• the right to not be arbitrarily detained;
• the right to be informed promptly of the reasons for arrest;
• the right to retain and instruct counsel without delay; and
• the right to be tried within a reasonable time.

A successful Charter challenge may also result in a stay of proceedings or evidence from your case being excluded.

Depending on the type and amount of the drug involved, the penalties for importing narcotics can be severe. Certain offences may carry mandatory minimum sentences in specific circumstances. Those found guilty of importing certain serious drugs could face significant terms of imprisonment, including life imprisonment where provided for by law.

Importing refers to the illegal transportation of controlled substances into Canada. It is one of the most serious categories of offences under Canadian criminal and regulatory laws.

Under section 6(1) of the Controlled Drugs and Substances Act, it is a criminal offence to import into Canada or export from Canada a substance included in Schedules I through VI, subject to the applicable provisions of the legislation.

Depending on the nature and type of contraband, different sentences may apply under section 6 of the Controlled Drugs and Substances Act. Furthermore, in certain circumstances, the court can consider such factors as whether an accused, while committing the offence, abused a position of trust or authority, or had access to an area restricted to authorized persons and used that access to commit the offence.

The Crown must prove the required elements beyond a reasonable doubt for the accused to be found guilty, which may include:

• Identity of the accused;
• Date, time, and jurisdiction;
• That the accused imported into Canada or exported from Canada a substance;
• That the substance is included under the applicable Schedule of the Controlled Drugs and Substances Act;
• That the accused had the required knowledge concerning the controlled substance; and
• That the importation or exportation was not authorized under the applicable legislation or regulations.