Drug Trafficking, Schedule II (Sentencing)

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Drug Trafficking, Schedule II
s. 5(1), (2) of the Controlled Drugs and Substances Act
Election / Plea
Crown Election Indictment(>1g Res. or 30g Mj)
Hybrid (<1g Res. or 30g Mj)
summary proceedings must initiate within 6 months of the offence (786(2))
Jurisdiction Prov. Court

Sup. Court w/ Jury (*)
Sup. Court w/ Judge-alone (*)

* Must be indictable. Preliminary inquiry also available.
Types of Release Release by Officer, Officer-in-Charge, or Judge (varies on charge)
Summary Dispositions
Avail. Disp. Discharge (730)

Suspended Sentence (731(1)(a))
Fine (734)
Fine + Probation (731(1)(b))
Jail (718.3, 787)
Jail + Probation (731(1)(b))
Jail + Fine (734)

Conditional Sentence (742.1)
Minimum None
Maximum $1,000 fine or 6 months incarceration
Indictable Dispositions
Avail. Disp. Discharge (730)*

Suspended Sentence (731(1)(a))
Fine (734)
Fine + Probation (731(1)(b))
Jail (718.3, 787)
Jail + Probation (731(1)(b))
Jail + Fine (734)
Conditional Sentence (742.1)*

(* varies)
Minimum None
Maximum 5 years less a day incarceration (<3kg)
Life (>3kg)
Reference
Offence Elements
Sentence Digests

Overview

See Drug Trafficking (Offence)

Legislation

Trafficking in substance
5. (1) No person shall traffic in a substance included in Schedule I, II, III or IV or in any substance represented or held out by that person to be such a substance.
Possession for purpose of trafficking
(2) No person shall, for the purpose of trafficking, possess a substance included in Schedule I, II, III or IV.
Punishment
(3) Every person who contravenes subsection (1) or (2)

(a) subject to paragraph (a.1), if the subject matter of the offence is a substance included in Schedule I or II, is guilty of an indictable offence and liable to imprisonment for life, and
(i) to a minimum punishment of imprisonment for a term of one year if
(A) the person committed the offence for the benefit of, at the direction of or in association with a criminal organization, as defined in subsection 467.1(1) of the Criminal Code,
(B) the person used or threatened to use violence in committing the offence,
(C) the person carried, used or threatened to use a weapon in committing the offence, or
(D) the person was convicted of a designated substance offence, or had served a term of imprisonment for a designated substance offence, within the previous 10 years, or
(ii) to a minimum punishment of imprisonment for a term of two years if
(A) the person committed the offence in or near a school, on or near school grounds or in or near any other public place usually frequented by persons under the age of 18 years,
(B) the person committed the offence in a prison, as defined in section 2 of the Criminal Code, or on its grounds, or
(C) the person used the services of a person under the age of 18 years, or involved such a person, in committing the offence;
(a.1) if the subject matter of the offence is a substance included in Schedule II in an amount that is not more than the amount set out for that substance in Schedule VII, is guilty of an indictable offence and liable to imprisonment for a term of not more than five years less a day;

...
Interpretation
(5) For the purposes of applying subsection (3) in respect of an offence under subsection (1), a reference to a substance included in Schedule I, II, III or IV includes a reference to any substance represented or held out to be a substance included in that Schedule.
...
1996, c. 19, s. 5; 2012, c. 1, s. 39.


CDSA

Schedule VII sets cannabis resin and cannabis marijuana at 3kg.

Schedule VIII sets the cannabis resin at 1 g and cannabis marijuana at 30 g.

Sentencing Principles and Ranges

For General Sentencing Principles for all drug offences, see Sentencing for Drug Offences

Maximum Penalties
Offences under s. 5(3)(a) [exceeding 3 kg] are straight indictable. The maximum penalty is life.

Offences under s. 5(3)(a.1)[not exceeding 3 kg] are straight indictable. The maximum penalty is 5 years.

Minimum Penalties
For offences under s. 5(3)(a) or (a.1) there is a mandatory minimum penalty of 1 year or 2 years incarceration.

The minimum penalties under s. 5(3)(a)(i)(D) has been found to be unconstitutional for violating s. 12 of the Charter.[1]

Available Dispositions
Offences under s. 5(3)(a) [with aggravating factors] have mandatory minimums. There are no discharges, suspended sentences, stand-alone fines, or conditional sentences available.

All dispositions are available.The judge may order a discharge (s. 730), suspended sentence (s. 731(1)(a)), fine (s. 731(1)(b)), custody (s. 718.3, 787), custody with probation (s. 731(1)(b)), custody with a fine (s. 734), or a conditional sentence (s. 742.1).

Consecutive Sentences
There are no statutory requirements that the sentences be consecutive.

Principles

Offenders found trafficking in a Schedule II controlled substance (e.g. Cannabinoids) in an amount greater than 3kg are liable for an indictable offence with a maximum penalty of life in jail. Where the amount is equal or less than 3kg, the offender is liable for an indictable offence with a maximum penalty of 5 years jail.

The primary sentencing principles for these offences involving soft drugs are protection of the public through denunciation and deterrence. [2]

The courts do recognize a distinction between hard and soft drugs, where soft drugs are treated less seriously from hard drugs.

Trafficking in cannabis is typically a sentence of incarceration.[3] There has been a benchmark set by some courts of 6 months.[4]

The upper range of marijuana trafficking is typically 12 months jail and above.[5]

The mid range of sentence is around 12 months on a conditional sentence order.[6] Though will be actual jail in certain cases.[7]

The lower end of the range is around 6 months jail, served either conditionally or on a straight-time basis.[8]

At the very lowest end there will be the rare granting of suspended sentences, fines, or discharges.[9] This usually involves exceptional circumstances such as the offenders position in the community or a benevolent intent behind the act.

Alberta does not have a starting point for sentence on soft drugs. However, the norm is for a sentence of incarceration regardless of prior record with a range between 6 and 12 months.[10]

  1. R v Hofer, 2016 BCSC 1442 (CanLII)
  2. R v Butt, 2007 NLTD 57 (CanLII), (2007), 265 Nfld. & P.E.I.R. 98 (N.L.S.C.)
    R v Murray, 2012 ABPC 123 (CanLII) at para 92
  3. R v Butt and Gallant, 1993 CanLII 7743 (NL CA), (1993), 106 Nfld. & P.E.I.R. 92 (N.L.C.A.)
  4. R v McKie (1981), 29 Nfld. & P.E.I.R. 181 (P.E.I.C.A.)(*no link)
  5. R v Chen, 2007 ONCA 230 (CanLII) (18 months jail)
    R v Nguyen, 2007 ONCA 222 (CanLII), (2007), 227 CCC (6th) 356 (C.A.) (15 months)
  6. R v Imoro, 2011 ONSC 1445 (CanLII), [2011] O.J. No. 996
    R v Nagtzaam, 2009 ONCJ 596 (CanLII), [2009] O.J. No. 5409 (O.C.J.)
  7. R v Do, [2002] O.J. No. 5491 (O.C.J.)
  8. R v Schweitzer, [2000] O.J. No. 5228 (O.C.J.)(*no link) (5 months jail)
    R v Stover, [2004] O.J. No. 3736 (O.C.J.)(*no link) (4 months CSO)
  9. R v Small 2001 BCCA 91 (CanLII)
    R v Lucas, 2002 BCPC 268 (CanLII), [2002] BCJ No. 1631 (Prov. Ct.)
  10. R v Murray, 2012 ABPC 123 (CanLII) at para 93

Ancillary Sentencing Orders

See also: Ancillary Orders

Offence-specific Orders

Order Conviction Description
Weapons Prohibition Orders s. 5 CDSA
  • For offences under s. 5 that are enumerated under s. 109(b) or (c), the prohibition order is mandatory regardless of election. The order prohibits "the person from possessing any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition and explosive"The order prohibits "the person from possessing any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition and explosive".
      • Duration (first offence): The Order prohibiting to "firearms" (other than a prohibited firearm or restricted firearm) and "crossbow, restricted weapon, ammunition and explosive substance" is for not less than 10 years starting at release from custody or at sentencing where custody is not ordered. The Order prohibiting "prohibited firearm, restricted firearm, prohibited weapon, prohibited device" is for life.
      • Duration (subsequent s. 109 offence): The duration must be life for all enumerated weapons and firearms. Notice of increased penalty under s. 727 required.

Under s. 487.04, convictions for trafficking of Schedule II drugs, unlike the other schedules, is not eligible for a secondary designated DNA Order.

Circumstance-specific Forfeiture Orders

Forfeiture Conviction Description
Forfeiture of Proceeds of Crime (s. 462.37(1) or (2.01)) any Where there is a finding of guilt for an indictable offence under the Code or the CDSA in which property is "proceeds of crime" and offence was "committed in relation to that property", the property shall be forfeited to Her Majesty the Queen on application of the Crown.
Fine in Lieu of Forfeiture (s. 462.37(3)) any Where a Court is satisfied an order for the forfeiture of proceeds of crime under s. 462.37(!) or (2.01) can be made, but that property cannot be "made subject to an order", then the Court "may" order a fine in "an amount equal to the value of the property". Failure to pay the fine will result in a default judgement imposing a period of incarceration.
Forfeiture of Weapons or Firearms (s. 491) any Where there is finding of guilt for an offence where a "weapon, an imitation firearm, a prohibited device, any ammunition, any prohibited ammunition or an explosive substance was used in the commission of [the] offence and that thing has been seized and detained", or "that a person has committed an offence that involves, or the subject-matter of which is, a firearm, a cross-bow, a prohibited weapon, a restricted weapon, a prohibited device, ammunition, prohibited ammunition or an explosive substance has been seized and detained, that the item be an enumerated weapon or related item be connected to the offence", then there will be a mandatory forfeiture order. However, under s. 491(2), if the lawful owner "was not a party to the offence" and the judge has "no reasonable grounds to believe that the thing would or might be used in the commission of an offence", then it should be returned to the lawful owner.
Forfeiture of Offence-related Property (s. 490.1) any Where there is a finding of guilt for an indictable offence, "any property is offence-related property" where (a) by means or in respect of which an indictable offence under this Act or the Corruption of Foreign Public Officials Act is committed, (b) that is used in any manner in connection with the commission of such an offence, or (c) that is intended to be used for committing such an offence". Such property is to be forfeited to Her Majesty in right of the province.

Other Sentencing Orders

Order Conviction Description
Non-communication order while offender in custody (s. 743.21) any The judge has discretion to order that the offender be prohibited "from communicating...with any victim, witness or other person" while in custody except where the judge "considers [it] necessary" to communicate with them.
Restitution Orders (s. 738) any A discretionary Order is available for things such as the replacement value of the property; the pecuniary damages incurred from harm, expenses fleeing a domestic partner; or certain expenses arising from the commission of an offence under s.402.2 or 403.
Victim Fine Surcharge (s. 737) any A mandatory surcharge under s. 737 of 30% of any fine order imposed, $100 per summary conviction or $200 per indictable conviction. If offence occurs on or after October 23, 2013, the order is discretionary based on ability to pay and the minimum amounts are smaller (15%, $50, or $100).

See Also