A federal regulatory blunder could affect an unknown number of drug cases
Defence lawyers could use the government's mistake to seek better deals for their clients
Hundreds of drug cases before Canadian courts could be affected by a mistake made by the federal government when it updated Canada's drug laws and legalized cannabis several years ago, CBC has learned.
The government and police are downplaying the potential impact of the error. They maintain it has not affected any drug investigations and say they are not aware of it affecting any cases before the courts.
At the heart of the problem are regulations designed to protect police officers who are required to commit crimes in the course of undercover investigations. Exemptions were adopted in the late 1990s 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 regulations.
As a result, during the period from 2017 to just a few weeks ago — when the government moved to correct its mistake — undercover police officers across Canada weren't legally protected from criminal liability for some things they might 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 had to be adopted because the error "may jeopardize law enforcement operations and the successful prosecution of criminal offences committed under these Acts."
"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," the government wrote.
Police activities put on hold by error
It said police investigation activities affected by the oversight "may have occurred in the past but are not currently being performed and will not be performed in the absence of the regulatory proposal."
The notice said drug investigations were still 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 (eg: encrypted cell phones, cars with hidden compartments, or a pill press) to further their investigations as this would result in potential criminal liability," the government wrote.
"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."
The regulations proposed to fix the mistake also would help Canadian police officers work with police in other countries that don't face the same limitation, the government added.
The updated regulations are now in effect.
'No negative implications' for court cases: government
According to Statistics Canada, 143,892 people were charged with various drug-related offences between 2018 and 2021.
It is not known how many of those cases may have involved undercover police officers committing offences in the course of an investigation — offences which would have been affected by the government's error. It is also not known whether any of those charges resulted from undercover police investigations that took place before the oversight was discovered.
Nic Defalco, spokesperson for Public Safety Canada, said the problem was identified "during the course of the Public Prosecution Service of Canada (PPSC) regular engagement on police investigations" and has "not had negative implications for drug investigation cases before the courts."
The PPSC refuses to say when the error was identified or how it came about.
Lawyer Jack Lloyd, who specializes in drug cases, said the legal community hadn't been aware of the federal government's mistake. He said it could affect a lot of cases investigated during that period.
"Hundreds, if not thousands of cases … I have dozens," said Lloyd.
Error could lead to lighter sentences: lawyer
Lloyd said the error could complicate cases for Crown prosecutors and likely will be used by defence lawyers to get their clients better deals.
"It's a pretty serious problem and so they're going to be motivated to resolve things in a manner that all parties can agree to," Lloyd said. "And so that may involve no jail, that may involve no criminal record, things of this nature."
Eugene Oscapella, a professor at the University of Ottawa and an expert on drug legislation, said some defence lawyers may try to use the government's mistake to get cases thrown out.
"I suspect that some defence lawyers will try to use it to get the case thrown out as an abuse of process. But I don't think they'll be all that successful," he said. "I think what may happen is ... [judges] may just ship it back to the trial court to rehear the case."
Rachel Huggins, deputy director of the Ontario Provincial Police and co-chair of the Canadian Association of Chiefs of Police Drug Advisory Committee, said she doesn't think the federal government's mistake will have much of an impact because the investigative techniques affected by the error are only some of the techniques open to police.
"Police officers have (many) tools and investigative techniques, not just one," she said. "So there was very little impact of this unintended omission and, in fact, I think it's beneficial that it was recognized that there was this omission and that now it's addressed in the police enforcement regulations."
RCMP spokesperson Camille Boily-Lavoie said the force "is not aware of any prosecutions impacted by the language of the former regulations."