Drug Offences in Canada -- Emerging Issues Bulletin

Issue #3

Bruce A. MacFarlane, Robert J. Frater, Croft Michaelson

The Emerging Issues Bulletin in Drug Offences in Canada, 4th edition is intended to provide updates on notable drug policy, legislative and enforcement issues. These are issues that may have started to be addressed in case law in trial courts, or reflected in legislation just passed or being contemplated, or concerning new enforcement techniques by the police. By focusing on percolating issues, it is hoped that the section may alert practitioners to emerging legal challenges.

A sample from the most recent Bulletin is excerpted here. To continue reading from Drug Offences in Canada, 4th edition, sign up at the bottom of the screen for a free 14-day trial of CriminalSource on westlaw Canada.

EMERGING ISSUES BULLETIN

The Changing Face of Drug Trafficking

Botanicals from South America and the Middle East, move over! There is a new player in town. Illicit chemists working in clandestine labs in China are flooding North America with synthetic opioids that are deadly. And it’s turning out to be a game-changer, with a soaring number of overdose deaths in Canada and the U.S.

The face of drug trafficking is starting to change. We propose to analyze this development from four different angles:

(a) Drug production in China
(b) International smuggling
(c) Street impact in Canada
(d) Judicial response in Canada

a) — Drug production in China

China’s chemical factories and drug traffickers have emerged as a major world source of synthetic opioids and chemical drugs. There are at least three reasons for this development. First, the country’s huge chemical industry is weakly regulated and poorly monitored.[1] Second, China has a well-developed shipping capacity that sends literally millions of packages to the world on a daily basis. Third, drugs are openly marketed on a network of ever-changing websites, then shipped in small packages throughout the world via established and legitimate courier companies.

Western governments have endeavored to keep up to the proliferation of synthetic chemicals through quickly enacted bans. However, clever Chinese chemists change a molecule or two, effectively creating new and not-yet illegal drugs. Some countries, including Canada, have banned entire ranges of drugs that mimic a listed drug, but many nations have not.[2] The European Union, with its open borders and widely varying drug laws, has proved to be a prime target for Chinese drug traffickers. A spokesperson for the European police agency Europol provided this telling observation: “As soon as a substance becomes illegal in Germany, they can just divert it to Denmark, Sweden or Austria.”[3]

Canada, on the other hand, has a two-pronged approach: the CDSA regulates specific drugs by naming them in Schedules appended to the Act. But it also refers to the drug’s preparations, derivatives, alkaloids, analogues and/or salts.[4] The purpose of the latter prong is to capture analogues — those which are similar in nature — more quickly, so that their listing need not go through a lengthy legislative process. It then becomes an issue of evidence in individual cases as to whether a seized substance is a prohibited analogue. For a detailed discussion of how this prohibitory scheme works, reference should be made to c. 32, Drug Variants and Analogues.

The number of synthetics that can be manufactured in China and elsewhere is virtually limitless. Some are starting to be known in the West: “Fentanyl” is believed to be around 100 times more potent than morphine. “Carfentanyl” is believed to be around 100 times more potent than fentanyl. Alpha-pvp, commonly known as Flakka, Ketamine (often referred to as “Special K”) and methamphetamine also come to mind.

But behind them lies a large number of drugs that are not that well known. Many have not yet even reached Canadian soil: “U-47700” (a little-known synthetic opioid), Methylone (a new designer drug banned quickly in other countries but not yet in Canada), W-18 (recently added to Schedule I in the CDSA, but little is known about it), Furanyl Fentanyl (a “molecule shift” analogue of Fentanyl), Hydrocodone, Duramorph, Etorphine, Hydromorphone, Meperidine, and Dextropropoxyphene are but a few examples.

[1] Dan Levin, “In China, Illegal Drugs are Sold Online in an Unbridled Market”, The New York Times, June 22, 2015 at p. A1, available online at: http://www.nytimes.com/2015/06/22/world/asia/in-china-illegal-drugs-are-sold-online-in-an-unbridled-market.html?_r=0 (”NYT”).

[2] NYT, above.

[3] NYT, above.

[4] Just which and how many of these analogue descriptors are attached to any one drug depends on the drug involved. For instance, Opium Poppy, item number one in Schedule I, refers to “its preparations, derivatives, alkaloids and salts”. “Fentanyls”, item 16 in Schedule I, refers to “their salts, derivatives, and analogues and salts of derivatives and analogues”. Barbiturates in Schedule IV simply refers to “their salts and derivatives”. Reference should therefore be made to the specific drug involved in any particular case to see how widely the net is cast.