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Major Studies of Drugs and Drug Policy | ||||
Canadian Senate Special Committee on Illegal Drugs | ||||
Volume 2 - Policies and Practices In Canada |
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Chapter 12 - The National Legislative ContextPart III – Disposal of
Controlled Substances
Under subsection 13(4) of the
Act, where a controlled substance has been seized, a report identifying the
place searched, the substance seized and the location where it is being
detained shall be filed with the justice of the peace of the territorial
division concerned. Sections 24 to 29 of the Act govern the disposal of
controlled substances. Section 24
establishes the pre‑trial procedure for the return of controlled
substances. For example, any person may, within 60 days after the date of
the seizure, finding or acquisition by a peace officer or inspector, apply to a
justice of the peace for a restitution order. If the justice is satisfied that
the application is valid, he shall order that the substance be returned to the
applicant. In the opposite case, the justice orders forfeiture to the Crown.
The substance is then disposed of in accordance with the applicable regulations
or as the Minister directs. Where no application for return is made, the
substance is delivered to the Minister and disposed of in accordance with the
applicable regulations or, failing such regulations, in such manner as the
Minister directs. It should be noted that
section 26 enables the Minister to ask the justice of the peace to order
that a controlled substance be forfeited, at any time, if he has reasonable
grounds to believe that it constitutes a potential security, public health or
safety hazard. The application is essentially made ex parte. If the justice of the peace finds that the Minister has
reasonable grounds to believe that the substance constitutes a potential
security, public health or safety hazard, he orders its forfeiture. The
substance is then disposed of in accordance with the applicable regulations or,
if there are no applicable regulations, in such a manner as the Minister
directs. Section 27 regulates the
post-trial procedure for returning controlled substances seized–the persons whose
substances were seized is entitled to have them returned where the court rules
his activities legitimate. Otherwise, the substance is returned to the true
legitimate owner, provided that that person can be identified. If neither is
possible, the substance is forfeited to the Crown, which disposes of it in
accordance with the applicable regulations or, if there are no applicable
regulations, in such manner as the Minister directs. Section 28 enables the Minister
to dispose of a controlled substance with the owner’s consent. Lastly,
under section 29, the Minister may destroy any plants from which a
Schedule I, II,
III or IV substance may be extracted and that is being produced without a
regulatory licence or in violation thereof.
This part concerns the powers
assigned to inspectors to ensure that holders of a regulatory authorization or
licence to deal in controlled substances or precursors are complying with the
regulations. The inspector may, at any reasonable
time, enter any place he believes on reasonable grounds is used for the purpose
of conducting that person's business or professional practice. The Act
authorizes inspectors to conduct a series of inspection acts, including seizing
and holding any controlled substance or precursor which he deems on reasonable
grounds must be seized or held. The Act makes provision for the return of
seized property. It should be noted that, in the case of dwelling-places, the
inspector must first obtain the occupant’s consent or hold a warrant. Part V – Administrative
Orders for Contraventions of Designated Regulations
This part makes provision for the
administrative procedure that is to be followed where a regulation designated
by the Governor in Council has been contravened. Under section 33 of the
CSDA, the Governor in Council may proclaim certain regulations made under
section 55 as “special regulations”. Non-compliance with those regulations
may result in administrative orders providing for severe penalties, including
revocation of the permit or licence issued by the Minister of Health
(subsection 40(4)). |