Regulations Amending the Controlled Drugs and Substances Act (Police Enforcement) Regulations and the Cannabis Act (Police Enforcement) Regulations: SOR/2022-174

Canada Gazette, Part II, Volume 156, Number 16

Registration
SOR/2022-174 July 15, 2022

CONTROLLED DRUGS AND SUBSTANCES ACT

CANNABIS ACT

P.C. 2022-877 July 14, 2022

Her Excellency the Governor General in Council, on the recommendation of the Minister of Public Safety and Emergency Preparedness, makes the annexed Regulations Amending the Controlled Drugs and Substances Act (Police Enforcement) Regulations and the Cannabis Act (Police Enforcement) Regulations under

Regulations Amending the Controlled Drugs and Substances Act (Police Enforcement) Regulations and the Cannabis Act (Police Enforcement) Regulations

Controlled Drugs and Substances Act

Controlled Drugs and Substances Act (Police Enforcement) Regulations

1 Section 2 of the Controlled Drugs and Substances Act (Police Enforcement) Regulations footnote 1 is replaced by the following:

Authority to designate

2 The Minister of Public Safety and Emergency Preparedness and every provincial minister are authorized to designate any police force within the jurisdiction of that Minister or the provincial minister for the purposes of these Regulations or any of its provisions.

2 The heading “Sections 5, 6 or 7 of the Act” before section 3 of the Regulations is replaced by the following:

Sections 5 to 7.1 of the Act

3 The portion of section 3 of the Regulations before paragraph (a) is replaced by the following:

Street drugs

3 A member of a police force is exempt from the application of any of sections 5 to 7.1 of the Act if the member engages or attempts to engage in conduct referred to in any of those sections that involves a substance other than a substance referred to in any of subsections 8(1), 11(1) and 13(1) of these Regulations, of which the member has come into possession during a particular investigation, if the member

4 The portion of section 4 of the Regulations before paragraph (a) is replaced by the following:

Direction and control

4 A person is exempt from the application of any of section 5 to 7.1 of the Act if the person engages or attempts to engage in conduct referred to in any of those sections that involves a substance, other than a substance referred to in any of subsections 8(1), 11(1) and 13(1) of these Regulations, of which the person has come into possession, if the person

5 The Regulations are amended by replacing “Solicitor General of Canada” with “Minister of Public Safety and Emergency Preparedness” in the following provisions:

Cannabis Act

Cannabis Act (Police Enforcement) Regulations

6 The heading “Section 8, 9, 10, 11, 12 or 14 of the Act” before section 3 of the Cannabis Act (Police Enforcement) Regulations footnote 2 is replaced by the following:

Sections 8 and 9 to 14 of the Act

7 The portion of section 3 of the Regulations before paragraph (a) is replaced by the following:

Offences — general — police

3 A member of a police force or of the military police is exempt from the application of any of sections 8 and 9 to 14 of the Act, as applicable, if the member engages in any activity referred to in those sections involving cannabis — other than cannabis that has been forfeited to Her Majesty, that is imported or exported under the exemption provided for in section 17 of these Regulations or that is produced under the exemption provided for in section 19 of these Regulations — of which the member has come into possession during a particular investigation, if the member

8 The portion of section 4 of the Regulations before paragraph (a) is replaced by the following:

Offences — general — direction and control

4 A person is exempt from the application of any of sections 8 and 9 to 14 of the Act, as applicable, if the person engages in any activity referred to in those sections involving cannabis — other than cannabis that has been forfeited to Her Majesty, that is imported or exported under the exemption provided for in section 17 of these Regulations or that is produced under the exemption provided for in section 19 of these Regulations — of which the person has come into possession, if the person

Coming into Force

9 These Regulations come into force on the day on which they are registered.

REGULATORY IMPACT ANALYSIS STATEMENT

(This statement is not part of the Regulations.)

Issues

The Controlled Drugs and Substances Act [CDSA] (Police Enforcement) Regulations and the Cannabis Act [CA] (Police Enforcement) Regulations (the Regulations) allow for designated law enforcement personnel to be exempted from certain criminal acts committed in good faith through the course of conducting or directing a drug investigation. However, an infraction created through the 2017 amendments to the CDSA prohibits to possess, produce, sell, import or transport anything intended to be used for the production or trafficking in a controlled substance, was not subsequently included in the CDSA Police Enforcement Regulations (PER). Given that the CA Police Enforcement Regulations were copied from those of the CDSA, a similar omission is found in relation to the section prohibiting to possess, produce, sell, distribute or import anything intended that it will be used to produce, sell or distribute illicit cannabis. The absence of these sections from the list of exemptions does not align with the policy intent of the regulations and may jeopardize law enforcement operations and the successful prosecution of criminal offences committed under these Acts. Regulatory amendments are therefore necessary to address this administrative error.

Background

Controlled Drugs and Substances Act (Police Enforcement) Regulations

In a 1999 decision (R. v. Campbell), the Supreme Court of Canada found that law enforcement was not immune from criminal liability for criminal acts they committed during the course of an investigation, even if those acts were executed in good faith. This case was a result of an investigation that took place in 1991. The trial decision was rendered in 1995, which was then successfully appealed in 1997.

As a consequence of the evolution of this case, the CDSA (Police Enforcement) Regulations were introduced in 1997 to authorize the Royal Canadian Mounted Police (RCMP), as well as provincial and municipal police forces, and anyone acting under their direction and control, to commit offences under the CDSA (trafficking, importation, exportation and production of controlled drugs and substances), when doing so in the course of an investigation conducted under an Act of Parliament. The CDSA (Police Enforcement) Regulations provide exemptions to law enforcement to conduct covert operations related to the possession of drugs scheduled under the Act, without facing criminal liability.

Bill C-37, An Act to amend the Controlled Drugs and Substances Act and to make related amendments to other Acts received royal assent on May 18, 2017. This Act amended the Controlled Drugs and Substances Act , the Customs Act and other legislation to better equip health and law enforcement officials in their efforts to reduce the harms associated with drug and substance use in Canada. One of the legislative amendments included the prohibition of possessing, producing, selling, importing or transporting anything intending that it would be used to produce or traffic in illegal substances. “Anything” could include, for example, a pill press, a vehicle with a hidden compartment, a vehicle without a hidden compartment, marihuana growing equipment, or a phone with or without an embedded decryption capability. This new prohibition was not added to the Regulations’ list of exemptions following the royal assent of the legislation.

On June 26, 2018, the Governor in Council approved the Cannabis Act (Police Enforcement) Regulations, which authorized the RCMP, provincial and municipal police forces, the military police and anyone acting under their direction and control to commit offences under the Cannabis Act (e.g. distribution, sale, importation, exportation, possession and production of cannabis) when doing so in the course of an investigation conducted under an Act of Parliament. However, the Cannabis Act’s prohibition on possessing, producing, selling, distributing or importing anything with the intention that it will be used to produce, sell or distribute illicit cannabis is not currently included in the list of exemptions in the Regulations.

The absence of these sections in the list of exemptions in the PER were unintended omissions at the time of amendment or enactment.

Consequential amendments are needed to update the Regulations to include exemptions for law enforcement when conducting or directing investigations under the CDSA, CA, or any other related Act of Parliament.

Description

The regulatory proposal makes amendments to the CDSA (Police Enforcement) Regulations and the CA (Police Enforcement) Regulations to exempt law enforcement (i.e. RCMP, provincial and municipal police forces, and anyone acting under their direction and control) from committing an offence related to (i) possessing, producing, selling, importing or transporting anything intending that it would be used to produce or traffic in illegal substances; and (ii) possessing, producing, selling, distributing or importing anything with the intention that it will be used to produce, sell or distribute illicit cannabis, if the acts are committed in good faith in the course of conducting or directing a drug investigation.

Regulatory development

Consultation

In consultation with the Public Prosecution Services of Canada and the RCMP, it was determined that these exemptions are required to ensure that law enforcement investigative techniques used to enforce drug laws are not unduly restricted. In light of the missing exemptions, a number of criminal investigations involving Canadian citizens or Canadian companies operating on Canadian soil could not be conducted by the RCMP.

As these amendments are designed to correct unintended omissions at the time when the CDSA was amended or the Cannabis Act proclaimed, and are aligned with the legislative intent of both Acts and with the other exemptions granted in the current regulations, no external consultations were conducted, and a prepublication comment period was not undertaken.

Modern treaty obligations and Indigenous engagement and consultation

As required by the Cabinet Directive on the Federal Approach to Modern Treaty Implementation, an assessment of modern treaty implications was conducted. The assessment examined the geographical scope and subject matter of the initiative in relation to modern treaties in effect and did not identify any potential modern treaty impacts or obligations.

Regulatory analysis

The CDSA and Cannabis Act (Police Enforcement) Regulations exempt the RCMP, provincial and municipal police forces, and anyone acting under their direction and control (hereinafter referred to as “law enforcement”), from the application of the offence provisions (e.g. possession, production, trafficking of illegal substances in the CDSA, and distribution, sale, importation, exportation, possession and production of cannabis) when doing so in the course of an investigation conducted under an Act of Parliament.

This amendment exempts law enforcement personnel from prosecutions when conducting or directing certain investigations. The only method to achieve this result is through a regulatory amendment to change the authorities.

Benefits and costs

Activities for which the exemptions are being sought may have occurred in the past but are not currently being performed and will not be performed in the absence of the regulatory proposal.

Baseline scenario

In the baseline scenario, investigations of drug-related offences are being carried out. However, law enforcement members working undercover cannot provide anything related to the possession, production, selling or importing of anything intended to be used to traffic in controlled substances (e.g. encrypted cell phones, cars with hidden compartments, or a pill press) to further their investigations as this would result in potential criminal liability. Nothing currently prevents law enforcement from bringing drug-related cases to trial. However, the quality of evidence that can be obtained is limited by the inability to use these additional tools that would afford the best evidence.

Regulatory scenario

Under this regulatory proposal, law enforcement members working undercover are permitted to provide anything related to the possession, production, selling or importing of anything intended to be used to traffic in controlled substances. Proper authorizations (e.g. wiretapping) may need to be secured to ensure that the operation is legally conducted.

Costs

Activities covered by the regulatory proposal have occurred in the past. In carrying out these activities in the past, the necessary equipment and other needed resources were acquired. As a result, law enforcement organizations already have in place the tools and trained personnel to conduct these operations without requiring incremental resources. The regulatory proposal will, however, impose a small cost related to acquiring any incremental authorizations as may be required (i.e. authorizations to preform newly exempted actions) to ensure that the operation is legally conducted.

Benefits

The incremental benefit of the regulatory proposal is the increase in the probability of conviction in cases involving drug crimes and the consequent reduction in the availability of illicit substances and illicit cannabis.

Small business lens

Analysis under the small business lens concluded that the proposed regulations will not impact Canadian businesses.

One-for-one rule

The one-for-one rule does not apply, as there is no impact on business.

Regulatory cooperation and alignment

The proposed regulation will facilitate Canadian law enforcement cooperation with law enforcement agencies from other countries (e.g. the United States, France, Australia) which currently do not experience the same limitations.

Strategic environmental assessment

In accordance with the Cabinet Directive on the Environmental Assessment of Policy, Plan and Program Proposals, a preliminary scan concluded that a strategic environmental assessment is not required as the regulatory proposal has no impact on the environment and are not expected to impact Canada’s 2030 and net zero by 2050 emission targets.

Gender-based analysis plus

A preliminary gender-based analysis plus (GBA+) was completed and it was determined that the regulatory proposal is not expected to have any gendered-specific impacts.

Implementation, compliance and enforcement, and service standards

The regulatory proposal will come into force on the date that they are published in the Canada Gazette, Part II. The Minister of Public Safety will send a letter to the President of the Canadian Association of Chiefs of Police, as well as the Commissioner of the RCMP to ensure that law enforcement across the country are aware of the changes.

The regulatory proposal will be enforced by existing independent internal affairs organizations throughout Canada that work to ensure that improper conduct by law enforcement is appropriately dealt with. For example, in the case of the RCMP, the responsible organization is the Civilian Review and Complaints Commission for the RCMP; in the case of provinces, the responsible organizations are independent provincial offices set up to investigate complaints against the police as well as professional standards units within police services (e.g. in Ontario, the responsible body is the Office of the Independent Police Review Director, which may refer the case to the professional standards unit of the police service).

In addition to these enforcement mechanisms (which will involve disciplinary proceedings, if determined to be required), law enforcement will be criminally liable and therefore subject to a criminal investigation, should they act outside the scope and guidelines set out by the Regulations.

Contact

Kristin McLeod
Director
Drug Policy Division
Law Enforcement Directorate
Crime Prevention Branch
Public Safety Canada
269 Laurier Avenue West
Ottawa, Ontario
K1A 0P8
Telephone: 613‑697‑8615
Email: kristin.mcleod@canada.ca