A federal regulatory blunder could affect an unknown number of drug cases

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.

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.

According to Statistics Canada, 143,892 people were charged with various drug-related offences between 2018 and 2021.