Sentencing for Drug Offences

From Criminal Law Notebook
This page was last substantively updated or reviewed January 2023. (Rev. # 96004)

Purpose of Sentencing for Drug Offences

See also: Drug Offences (Crime) and Purpose and Principles of Sentencing

In addition to the sentencing purposes and principles outlined in s. 718 to 719.2 of the Criminal Code, drug offences have added purpose as stated in section 10 of the Controlled Drugs and Substances Act:

Purpose of sentencing

10 (1) Without restricting the generality of the Criminal Code, the fundamental purpose of any sentence for an offence under this Part is to contribute to the respect for the law and the maintenance of a just, peaceful and safe society while encouraging rehabilitation, and treatment in appropriate circumstances, of offenders and acknowledging the harm done to victims and to the community.
[omitted (2), (3), (4) and (5)]
1996, c. 19, s. 10; 1999, c. 5, s. 49; 2012, c. 1, s. 43; 2017, c. 7, s. 7; 2018, c. 16, s. 198.

– Template:CDSASec2

Note up: 10(1)

It has further been stated that the purpose of the laws concerning controlled substances is general deterrence.[1]

Dial-a-Dope

A dial-a-dope operation relates to the "ordering delivery of illicit substances by phone."[2] A dial-a-dope operations "enable a pervasive and rapid dissemination of illicit narcotics" that wreak havoc on individuals and communities.[3] Accordingly, denunciation and deterrence are primary goals in sentencing.[4] The operation "facilitates the ease of obtaining drugs in communities and the infiltration of a criminal trade."[5] It also "requires forethought and planning."[6]

  1. ↑ USA v Dynar, 1997 CanLII 359 (SCC), 115 CCC (3d) 481, per Cory and Iacobucci JJ, at para 81 (“[T]he purpose of the law of attempt is universally acknowledged to be the deterrence of subsequent attempts”)
  2. ↑ R v Dickey, 2016 BCCA 177 (CanLII), 335 CCC (3d) 478, per Lowry JA, at para 28
  3. ↑ R v Cisneros, 2014 BCCA 154 (CanLII), per Groberman JA
  4. ↑ Cisneros, ibid.
  5. ↑ Dickey, supra, at para 28
  6. ↑ Dickey, supra, at para 28

General Factors

Under the Controlled Drugs and Substances Act, there are further factors that should be considered:

s. 10
[omitted (1)]

Factors to take into consideration

(2) If a person is convicted of a designated substance offence, the court imposing sentence on the person shall consider any relevant aggravating factors including that the person

(a) in relation to the commission of the offence,
(i) carried, used or threatened to use a weapon,
(ii) used or threatened to use violence,
(iii) trafficked in a substance included in Schedule I, II, III, IV or V, or possessed such a substance for the purpose of trafficking, 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, or
(iv) trafficked in a substance included in Schedule I, II, III, IV or V, or possessed such a substance for the purpose of trafficking, to a person under the age of 18 years;
(b) was previously convicted of a designated substance offence, as defined in subsection 2(1) of this Act, or a designated offence, as defined in subsection 2(1)of the Cannabis Act;
(c) used the services of a person under the age of eighteen years to commit, or involved such a person in the commission of, the offence.
Reasons

(3) If, under subsection (1), the court is satisfied of the existence of one or more of the aggravating factors enumerated in paragraphs (2)(a) to (c), but decides not to sentence the person to imprisonment, the court shall give reasons for that decision.
[omitted (4) and (5)]
1996, c. 19, s. 10; 1999, c. 5, s. 49; 2012, c. 1, s. 43; 2017, c. 7, s. 7; 2018, c. 16, s. 198; 2022, c. 15, s. 19.

– Template:CDSASec2

Note up: 10(2) and (3)

Section 10(3) suggests that where aggravating factors are found under s.10(2) that there should be a jail sentence unless there are reasons not to do so.

Weapons

See also: Definition of Weapons

A weapon that is "in immediate proximity and readily accessible by the person who possessed narcotics" will generally amount to an aggravating factor under s. 10(2) of the CDSA.[1]

  1. ↑ R v Oickle, 2015 NSCA 87 (CanLII), 330 CCC (3d) 82, per Scanlan JA, at para 25 - relates to offender with weapon in vehicle next to him

Addiction

There is a significant difference between a drug addict trafficking to support habit and the non-addict trafficking for monetary gain.[1]

The onus is on the offender to establish that the offender is trafficking to support a habit. Specifically, there must be a causal connection.[2]

Lower end drug trafficking where the offender is motivated by addiction over profit will have a lower penalty.[3]

  1. ↑ see R v Andrews, [2005] OJ No 5708 (S.C.)(*no CanLII links)
  2. ↑ R v Lively, 2006 NSSC 274 (CanLII), 796 APR 1, per Gruchy J, at para 39
  3. ↑ R v Matias-Pedro, 2003 BCCA 590 (CanLII), 180 CCC (3d) 304, per Rowles JA, at para 18

Breach of Trust

See also: Sentencing Factors Relating to the Offence#Breach of Trust

Breach of trust will exist when trafficking offences are committed by offenders who use their position of employment to facilitate the crime. Most frequently this is seen in prison staff, sheriffs or lawyers smuggling drugs into jail and prisons. Other circumstances include medical or legal professionals dealing drugs to their clients and transportation professionals facilitating the importation of drugs. There also exist cases where law enforcement professionals steal drugs from exhibit lockers.

General Principles and Factors for Trafficking

Some courts distinguish between levels gravity for trafficking. There is (1) social sharing; (2) petty retail operation; (3) full-time commercial operation.[1]

Where the offender is not addict then he is not deserving of sympathy in committing the offence for the support of a habit as part of a disease.[2]

Denunciation and deterrence are the paramount focus in commerical trafficking.[3]

Court make some distinction between commercial and social trafficking.[4] The difference is considered an aggravating factor in sentence and so must be proven beyond a reasonable doubt. The factors of proof include the use of street lingo, cell phones, amount of drugs, method obtained, and method of dealing.[5]

Other factors include:

  • the offender’s level in the drug hierarchy
  • amount and value of the drug
  • number of transactions
  • prior related record
  • trafficking on impulse
  • planned and deliberate trafficking
  • social trafficking (sharing drugs with friends) vs commercial trafficking
  • trafficking in other types of drugs at the same time

Some courts have made a distinction in sentencing between traffickers motivated by addiction as opposed to financial gain and greed.[6]

  1. ↑ R v Fifield, 1978 CanLII 812 (NSCA), 25 NSR (2d) 407, per MacKeigan CJ
  2. ↑ R v Williams, [2010] OJ No 2971 (ONSC)(*no CanLII links) , at para 20
    R v Woolcock, [2002] OJ No 4927 (CA)(*no CanLII links) , at para 5
    R v Mandolino, [2001] OJ No 289 (CA)(*no CanLII links) , at para 1
    R v Belenky, 2010 ABCA 98 (CanLII), 253 CCC (3d) 344, per McDonald JA, at para 3
    R v Lau, 2004 ABCA 408 (CanLII), 193 CCC (3d) 51, per Hunt JA, at para 33
    R v Nguyen, 2001 BCCA 624 (CanLII), 160 BCAC 17, per Ryan JA, at para 7
  3. ↑ R v Bui, 2004 CanLII 7201 (ON CA), [2004] OJ No 3452 (CA), per curiam, at para 2
    Woolcock, supra, at para 17
    Nguyen, supra, at para 14
  4. ↑ see e.g. R v Salame, 1999 ABCA 318 (CanLII), AJ No 1271, per Fraser CJ, at para 3
  5. ↑ e.g. see R v Murray, 2012 ABPC 123 (CanLII), per Semenuk J
  6. ↑ R v Burchnall and Dumont, 1980 ABCA 219 (CanLII), 65 CCC (2d) 490, 24 A.R. 17{atL|fp5q7|29}}
    R v Ma, 2003 ABCA 220 (CanLII), 177 CCC (3d) 535, per curiam, at para 8
    R v Henderson, 2002 ABQB 442 (CanLII), 313 AR 182, per Burrows J, at para 38
    R v Lau, 2004 ABCA 408 (CanLII), 193 CCC (3d) 51, per Hunt JA, at para 33

Ranges

In British Columbia, a trafficker should expect a prison sentence, absent exceptional circumstances.[1]

In Ontario, conditional sentences are available but are restricted to "exceptional circumstances."[2]

In Alberta, the court recommends a starting point of 3 years for trafficking in cocaine in context of a "commercial operation or something more than a minimal scale".[3] "Commercial" operations will vary from a few grams to 2 oz of cocaine.[4] When it is "wholesale commercial trafficking" the starting point is 4.5 years.[5]

  1. ↑ R v Voong, 2015 BCCA 285 (CanLII), 325 CCC (3d) 267, per Bennett JA, at para 1
  2. ↑ R v Mori, 2020 ONCJ 620 (CanLII), at para 39
  3. ↑ R v Maskell, 1981 ABCA 50 (CanLII), 58 CCC (2d) 408 , 29 A.R. 107, per Moir JA
    R v Lau, 2004 ABCA 408 (CanLII), 193 CCC (3d) 51, per Hunt JA, at para 20
  4. ↑ Lau, ibid. at para 26
  5. ↑ Lau, supra at para 21
    R. v. Chung (1999), 1999 ABCA 86 (CanLII), 232 A.R. 193 (C.A.)
    R. v. Honish (1989), 1989 ABCA 228 (CanLII), 100 A.R. 79 (C.A.)
    R. v. Ma (2003), 2003 ABCA 220 (CanLII), 330 A.R. 142 (C.A.)

Drug Court

[omitted (1), (2) and (3)]

Drug treatment court program

(4) A court sentencing a person who is convicted of an offence under this Part may delay sentencing to enable the offender

(a) to participate in a drug treatment court program approved by the Attorney General; or
(b) to attend a treatment program under subsection 720(2) [Court-supervised programs] of the Criminal Code.

[omitted (5)]
1996, c. 19, s. 10; 1999, c. 5, s. 49; 2012, c. 1, s. 43; 2017, c. 7, s. 7; 2018, c. 16, s. 198; 2022, c. 15, s. 19.

– Template:CDSASec2

Note up: 10(4)

Sentencing Ranges by Type of Drug

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Drug Offences
Offences / Sentencing
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