Buying cocaine or baking powder?

Drugs are insanely widespread.

Statistics on drug use vary, which isn’t surprising with the ‘self-reporting’ nature of those stats.

But, according to some stats, approximately 1/3 of youths (15 to 24 years old) have used marijuana in the past year. Other illicit drugs are less widespread, but according to some stats, 5-10% of youths have used one of the following illicit drugs in the past year: cocaine, speed, ecstasy, hallucinogens, or heroin.

Unless all users are growing or making all their own drugs, there must be a lot of buying and selling going on (which is obviously a criminal offence: Controlled Drugs and Substances Act, S.C. 1996, c. 19).

Now, with all that buying and selling, it is bound to happen that someone buys a substance that is claimed to be a drug, but isn’t… We’ve all heard these stories, mostly on television: someone thinks they bought a drug, but they actually bought oregano or baking powder.

If that happens, is it still illegal? If someone buys baking powder, is that really illegal? There wasn’t any harm, right?

Here’s the reality: attempting to buy a drug (and then inadvertently buying something that isn’t a drug) is still a crime. Put another way, ATTEMPTING to commit a crime is still a crime (section 24 of the Criminal Code). This is true regardless of whether or not it is possible under the circumstances to commit the offence.

Consider the following case: United States of America v. Dynar, [1997] 2 S.C.R. 462. Here, the accused person laundered money which he thought was the proceeds of crime. In this case, however, the police were conducting a sting operation and the money was not actually the proceeds of crime. So, in these circumstances, it was legally impossible to commit the crime. But, despite that impossibility, there was no bar in convicting the accused of attempting to launder the proceeds of crime. The attempt was still there…

Section 463 of the Code sets out the penalties for an attempted crime. Generally, the maximum penalty is half of what is available for the completed offence, except if otherwise stated in the Code. For instance, a person convicted of attempted murder can receive life imprisonment (s. 239 of the Code).

So, why are attempts illegal? Why punish someone who hasn’t actually completed a crime?

There are a few reasons.

First, there is a moral issue: people who attempt to commit a crime are demonstrating that they are inclined/willing to commit a criminal act. Clearly, someone who attempts to commit a crime deserves to be punished.

Also, if people who attempt to commit crimes are punished, then (hopefully) that will deter some people from committing the crime (or attempting to commit the crime).

Bottom-line: whether or not you actually buy real drugs, attempting to buy drugs will get you into trouble. So, don’t be stupid.

**The information contained in this column should not be treated by readers as legal advice and should not be relied on without detailed legal counsel being sought.

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About the Author

Jeff Zilkowsky is a lawyer practicing at MacLean Law in the Lower Mainland and in Kelowna, and focuses his practice on family law and litigation.  

In his column, Jeff provides information about current legal events or points of interest or concern relating to the law. 

The information contained in Jeff’s column should not be used or relied upon as legal advice.

Comments are always appreciated and encouraged, so don’t hesitate to email Jeff at [email protected]

Visit Jeff’s website at www.jeffzilkowsky.com or visit the website of MacLean Law.

The views expressed are strictly those of the author and not necessarily those of Castanet. Castanet does not warrant the contents.

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