Hundreds of drug cases before Canadian courts may be affected by a mistake made by the federal government when it updated Canada’s drug laws and legalized cannabis several years ago, the CBC has learned.
The government and police played down the potential impact of the mistake. They say it has not affected any drug investigations and say they are not aware of any cases before the courts being affected.
At the heart of the problem are provisions designed to protect police officers who are required to commit crimes in the course of undercover investigations. In the late 1990s, exceptions were passed to protect police from criminal liability when they are required to do things like buy or sell drugs as part of an investigation.
But when the Liberal government updated the Controlled Drugs and Substances Act in 2017 and then legalized cannabis in 2018, it failed to update those provisions.
As a result, between 2017 and just a few weeks ago — when the government moved to correct its mistake — undercover police officers across Canada were not legally protected from criminal liability for some of the things they may have been called upon to do as part of an investigation.
In a notice published in the Canada Gazette on Aug. 3, the government warned that new regulations must be enacted because the error “could jeopardize law enforcement operations and the successful prosecution of offenses committed under these laws.”
“In light of the missing exemptions, a number of criminal investigations involving Canadian citizens or Canadian companies operating on Canadian soil cannot be conducted by the RCMP,” the government wrote.
Police operations have been suspended by mistake
It said police investigative activities affected by the omission “may have occurred in the past but are not currently being carried out and will not be carried out in the absence of a regulatory proposal”.
The release said drug investigations are still ongoing.
“However, undercover law enforcement members may not provide anything related to the possession, manufacture, sale or importation of anything intended to be used to traffic controlled substances (eg: encrypted cell phones, cars with hidden wards or pill presses) from continuing their investigations as doing so would result in potential criminal liability,” the government wrote.
“Currently, there is nothing preventing law enforcement agencies from prosecuting drug-related cases. However, the quality of evidence that can be obtained is limited by the inability to use these additional tools that would provide the best evidence.’
The proposed provisions to correct the error will also help Canadian police officers work with police in other countries that do not face the same restriction, the government added.
The updated regulations are now in effect.
‘No negative consequences’ for lawsuits: Govt
According to Statistics Canada, 143,892 people were charged with various drug-related offenses between 2018 and 2021.
It is not known how many of those cases may have involved undercover police officers committing crimes in the course of an investigation — crimes that would have been affected by the government’s error. It is also not known if any of these charges were the result of undercover police investigations conducted before the breach was discovered.
Nick Defalco, a spokesman for the Public Safety Service of Canada, said the problem was identified “during the regular engagement of the Public Prosecutor’s Office of Canada (PPSC) in police investigations” and “has not had a negative impact on drug investigation cases before the courts.” .
The PPSC declined to say when the error was discovered or how it occurred.
Attorney Jack Lloyd, who specializes in drug cases, said the legal community was unaware of the federal government’s mistake. He said it could affect many cases investigated during that period.
“Hundreds if not thousands of cases … I have dozens,” Lloyd said.
Mistake can lead to lighter sentences: attorney
Lloyd said the error could complicate cases for Crown prosecutors and would likely be used by defense attorneys to get better deals for their clients.
“It’s a pretty serious issue, and so they’re going to be motivated to resolve things in a way that all parties can agree to,” Lloyd said. “And so that might not include prison, that might include no criminal record, things of that nature.”
Attorney Jack Lloyd says the government’s mistake could affect hundreds or thousands of drug cases before the courts. (Martin Trainor/CBC)
Eugene Oscapella, a University of Ottawa professor and drug law expert, said some lawyers may try to use the government’s mistake to get the cases dismissed.
“I suspect some defense attorneys will try to use it to dismiss the case as an abuse of process.” But I don’t think they will succeed that much,” he said. “I think what could happen is… [judges] may simply send it back to the trial court to retry the case.”
University of Ottawa professor Eugene Oscapella says lawyers may try to get the drug charges dismissed because of government error, but he’s not convinced they’ll succeed. (Radio-Canada)
Rachel Huggins, deputy director of the Ontario Provincial Police and co-chair of the Canadian Association of Chiefs of Police’s Drug Advisory Committee, said she doesn’t think the federal government’s mistake will have much of an impact because investigative techniques affected by the mistake are just some of the techniques available to the police.
“Police officers have (many) investigative tools and techniques, not just one,” she said. “So there was very little impact from that inadvertent oversight, and I actually think it’s helpful to acknowledge that there was that oversight and that it’s now being addressed in the police enforcement regulations.”
RCMP spokeswoman Camille Boily-Lavoie said the force was “not aware of any prosecutions affected by the language of the previous regulations.”
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