Sentencing for Drug Offences: Difference between revisions

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[[fr:Condemnation_pour_infractions_liées_aux_drogues]]
{{Currency2|January|2023}}
{{HeaderSentencing}}
{{HeaderSentencing}}
==Purpose of Sentencing for Drug Offences==
==Purpose of Sentencing for Drug Offences==
Drug offences have added purpose as stated in section 10 of the Controlled Drugs and Substances Act:
{{seealso|Drug Offences (Crime)|Purpose and Principles of Sentencing}}
{{Quotation|
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'''<br>
{{quotation2|
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.
; Purpose of sentencing
<br>
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.<br>
|[http://canlii.ca/t/7vtc#sec10 CDSA]
{{removed|(2), (3), (4) and (5)}}
{{LegHistory90s|1996, c. 19}}, s. 10; {{LegHistory90s|1999, c. 5}}, s. 49; {{LegHistory10s|2012, c. 1}}, s. 43; {{LegHistory10s|2017, c. 7}}, s. 7; {{LegHistory10s|2018, c. 16}}, s. 198.
|{{CDSASec2|10}}
|{{NoteUpCDSA|10|1}}
}}
}}


It has further been stated that the purpose of the laws concerning controlled substances is general deterrence.<ref>
It has further been stated that the purpose of the laws concerning controlled substances is general deterrence.<ref>
U.S.A. v Dynar [http://canlii.ca/t/1fr0t 1997 CanLII 359] (SCC), (1997), 115 CCC (3d) 481 (SCC){{perSCC|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”)<br>
{{CanLIIRPC|USA v Dynar|1fr0t|1997 CanLII 359 (SCC)|115 CCC (3d) 481}}{{perSCC|Cory and Iacobucci JJ}}{{atL|1fr0t|81}} (“[T]he purpose of the law of attempt is universally acknowledged to be the deterrence of subsequent attempts”)<br>
</ref>
</ref>


'''Dial-a-Dope'''<br>
; Dial-a-Dope
A dial-a-dope operation relates to the "ordering delivery of illicit substances by phone".<ref>
A dial-a-dope operation relates to the "ordering delivery of illicit substances by phone."<ref>
''R v Dickey'', [http://canlii.ca/t/gpn8k 2016 BCCA 177] (CanLII){{perBCCA|Lowry JA}}{{at|28}}<Br>
{{CanLIIRP|Dickey|gpn8k|2016 BCCA 177 (CanLII)|335 CCC (3d) 478}}{{perBCCA|Lowry JA}}{{atL|gpn8k|28}}<Br>
</ref>
</ref>
A dial-a-dope operations "enable a pervasive and rapid dissemination of illicit narcotics" that wreak havoc on individuals and communities.<ref>   
A dial-a-dope operations "enable a pervasive and rapid dissemination of illicit narcotics" that wreak havoc on individuals and communities.<ref>   
''R v Cisneros'', [http://canlii.ca/t/g6nm3 2014 BCCA 154] (CanLII){{perBCCA|Groberman JA}}
{{CanLIIRx|Cisneros|g6nm3|2014 BCCA 154 (CanLII)}}{{perBCCA|Groberman JA}}
</ref> Accordingly, denunciation and deterrence are primary goals in sentencing.<ref>
</ref>
Accordingly, denunciation and deterrence are primary goals in sentencing.<ref>
{{ibid1|Cisneros}}</ref>
{{ibid1|Cisneros}}</ref>
The operation "facilitates the ease of obtaining drugs in communities and the infiltration of a criminal trade".<ref>
The operation "facilitates the ease of obtaining drugs in communities and the infiltration of a criminal trade."<ref>
{{supra1|Dickey}}{{at|28}}<Br>
{{supra1|Dickey}}{{atL|gpn8k|28}}<Br>
</ref>
</ref>
It also "requires forethought and planning".<ref>
It also "requires forethought and planning."<ref>
{{supra1|Dickey}}{{at|28}}<br>
{{supra1|Dickey}}{{atL|gpn8k|28}}<br>
</ref>
</ref>


Line 32: Line 38:
==General Factors==
==General Factors==
Under the Controlled Drugs and Substances Act, there are further factors that should be considered:
Under the Controlled Drugs and Substances Act, there are further factors that should be considered:
{{Quotation|
{{quotation2|
s. 10<br>...<br>
s. 10<br>
'''Circumstances to take into consideration'''<br>
{{removed|(1)}}
(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
; 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,
:(a) in relation to the commission of the offence,
::(i) carried, used or threatened to use a weapon,
::(i) carried, used or threatened to use a weapon,
::(ii) used or threatened to use violence,<ref> see also Dobbin, [http://canlii.ca/t/25qjm 2009 NLCA 52] (CanLII), [2009] N.J. No. 348{{perNLCA|Barry JA}}</ref>
::(ii) used or threatened to use violence,
::(iii) trafficked in a substance included in Schedule I, II, III or IV 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 eighteen years, or
::(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 or IV, or possessed such a substance for the purpose of trafficking, to a person under the age of eighteen years;
::(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; or
:(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, a designated substance offence.
:(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
; 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.
(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.
<br>
<br>
|[http://canlii.ca/t/7vtc#sec10 CDSA]
{{removed|(4) and (5)}}
{{LegHistoryCDSA|1996, c. 19}}, s. 10;
{{LegHistory90s|1999, c. 5}}, s. 49;
{{LegHistory10s|2012, c. 1}}, s. 43;
{{LegHistory10s|2017, c. 7}}, s. 7;
{{LegHistoryCDSA|2018, c. 16}}, s. 198;
{{LegHistoryCDSA|2022, c. 15}}, s. 19.
 
|{{CDSASec2|10}}
|{{NoteUpCDSA|10|2|3}}
}}
}}


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===Weapons===
===Weapons===
{{seealso|Definition of Weapons}}
{{seealso|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.<ref>''R v Oickle'', [http://canlii.ca/t/gldmr 2015 NSCA 87] (CanLII){{perNSCA|Scanlan JA}} at para 25 - relates to offender with weapon in vehicle next to him<br>
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.<ref>
{{CanLIIRP|Oickle|gldmr|2015 NSCA 87 (CanLII)|330 CCC (3d) 82}}{{perNSCA|Scanlan JA}}{{atL|gldmr|25}} - relates to offender with weapon in vehicle next to him<br>
</ref>  
</ref>  


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===Addiction===
===Addiction===
There is a significant difference between a drug addict trafficking to support habit and the non-addict trafficking for monetary gain.<ref>
There is a significant difference between a drug addict trafficking to support habit and the non-addict trafficking for monetary gain.<ref>
see ''R v Andrews'', [2005] OJ No 5708 (S.C.){{NOCANLII}}
see {{CanLIIR-N|Andrews|, [2005] OJ No 5708 (S.C.)}}
</ref>
</ref>


The onus is on the offender to establish that the offender is trafficking to support a habit. Specifically, there must be a causal connection.<ref>
The onus is on the offender to establish that the offender is trafficking to support a habit. Specifically, there must be a causal connection.<ref>
''R v Lively'', [http://canlii.ca/t/1q96j 2006 NSSC 274] (CanLII){{perNSSC|Gruchy J}} at para 39
{{CanLIIRP|Lively|1q96j|2006 NSSC 274 (CanLII)|796 APR 1}}{{perNSSC|Gruchy J}}{{atL|1q96j|39}}
</ref>
</ref>


Lower end drug trafficking where the offender is motivated by addiction over profit will have a lower penalty.<ref>
Lower end drug trafficking where the offender is motivated by addiction over profit will have a lower penalty.<ref>
''R v Matias-Pedro'', [http://canlii.ca/t/25r 2003 BCCA 590] (CanLII){{perBCCA|Rowles JA}}{{at|18}}<br>
{{CanLIIRP|Matias-Pedro|25r|2003 BCCA 590 (CanLII)|180 CCC (3d) 304}}{{perBCCA|Rowles JA}}{{atL|25r|18}}<br>
</ref>
</ref>


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{{seealso|Sentencing Factors Relating to the Offence#Breach of Trust}}
{{seealso|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 importation of drugs. There also exist cases where law enforcement professionals steal drugs from exhibit lockers.
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==
==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.<ref>''R v Fifield'', [http://canlii.ca/t/2czmh 1978 CanLII 812] (NS CA), (1978) 25 NSR (2d) 407{{perNSCA|MacKeigan CJ}}</ref>
Some courts distinguish between levels gravity for trafficking. There is (1) social sharing; (2) petty retail operation; (3) full-time commercial operation.<ref>
{{CanLIIRP|Fifield|2czmh|1978 CanLII 812 (NSCA)|25 NSR (2d) 407}}{{perNSCA|MacKeigan CJ}}</ref>


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.<ref>
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.<ref>
R v Williams [2010] OJ No 2971 (ONSC){{NOCANLII}}{{at|20}}<br>
{{CanLIIR-N|Williams|, [2010] OJ No 2971 (ONSC)}}{{at-|20}}<br>
''R v Woolcock'', [2002] OJ No 4927 (C.A.){{NOCANLII}}{{at|5}}<br>  
{{CanLIIR-N|Woolcock|, [2002] OJ No 4927 (CA)}}{{at-|5}}<br>
''R v Mandolino'', [2001] OJ No 289 (C.A.){{NOCANLII}}{{at|1}}<br>  
{{CanLIIR-N|Mandolino|, [2001] OJ No 289 (CA)}}{{at-|1}}<br>
''R v Belenky'', [http://canlii.ca/t/28w7c 2010 ABCA 98] (CanLII){{perABCA|McDonald JA}}{{at|3}}<br>
{{CanLIIRP|Belenky|28w7c|2010 ABCA 98 (CanLII)|253 CCC (3d) 344}}{{perABCA|McDonald JA}}{{atL|28w7c|3}}<br>
''R v Lau'', [http://canlii.ca/t/1tbnn 2004 ABCA 408] (CanLII), (2004), 193 CCC (3d) 51 (Alta. C.A.){{perABCA|Hunt JA}}{{at|33}}<br>  
{{CanLIIRP|Lau|1tbnn|2004 ABCA 408 (CanLII)|193 CCC (3d) 51}}{{perABCA|Hunt JA}}{{atL|1tbnn|33}}<br>  
''R v Nguyen'', [http://canlii.ca/t/58vt 2001 BCCA 624] (CanLII){{perBCCA|Ryan JA}}{{at|7}}<br>
{{CanLIIRP|Nguyen|58vt|2001 BCCA 624 (CanLII)|160 BCAC 17}}{{perBCCA|Ryan JA}}{{atL|58vt|7}}<br>
</ref>
</ref>


Denunciation and deterrence are the paramount focus in commerical trafficking.<ref>
Denunciation and deterrence are the paramount focus in commerical trafficking.<ref>
''R v Bui'', [http://canlii.ca/t/1hp4g 2004 CanLII 7201] (ON CA), [2004] OJ No 3452 (C.A.){{TheCourtONCA}}{{at|2}}<br>  
{{CanLIIRP|Bui|1hp4g|2004 CanLII 7201 (ON CA)|[2004] OJ No 3452 (CA)}}{{TheCourtONCA}}{{atL|1hp4g|2}}<br>  
{{supra1|Woolcock}}{{at|17}}<br>  
{{supra1|Woolcock}}{{at-|17}}<br>  
{{supra1|Nguyen}}{{at|14}}<br>
{{supra1|Nguyen}}{{atL|58vt|14}}<br>
</ref>
</ref>


Court make some distinction between commercial and social trafficking.<ref>
Court make some distinction between commercial and social trafficking.<ref>
see e.g. ''R v Salame'', [http://canlii.ca/t/5s2b 1999 ABCA 318] (CanLII){{perABCA|Fraser CJ}}{{at|3}}</ref> 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.<ref>
see e.g. {{CanLIIRP|Salame|5s2b|1999 ABCA 318 (CanLII)|AJ No 1271}}{{perABCA|Fraser CJ}}{{atL|5s2b|3}}</ref>
e.g. see ''R v Murray'', [http://canlii.ca/t/frn0m 2012 ABPC 123] (CanLII){{perABPC|Semenuk J}}
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.<ref>
e.g. see {{CanLIIRx|Murray|frn0m|2012 ABPC 123 (CanLII)}}{{perABPC|Semenuk J}}
</ref>
</ref>


Line 113: Line 131:
* social trafficking (sharing drugs with friends) vs commercial trafficking
* social trafficking (sharing drugs with friends) vs commercial trafficking
* trafficking in other types of drugs at the same time  
* 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.<REF>
{{CanLIIRP|Burchnall and Dumont|fp5q7|1980 ABCA 219 (CanLII)|65 CCC (2d) 490, 24 A.R. 17}}{atL|fp5q7|29}}<Br>
{{CanLIIRP|Ma|57mr|2003 ABCA 220 (CanLII)|177 CCC (3d) 535}}{{TheCourtABCA}}{{AtL|57mr|8}}<Br>
{{CanLIIRP|Henderson|4zkh|2002 ABQB 442 (CanLII)|313 AR 182}}{{perABQB|Burrows J}}{{atL|4zkh|38}}<Br>
{{CanLIIRP|Lau|1tbnn|2004 ABCA 408 (CanLII)|193 CCC (3d) 51}}{{perABCA|Hunt JA}}{{atL|1tbnn|33}}
</ref>


{{reflist|2}}
{{reflist|2}}
Line 118: Line 143:


In British Columbia, a trafficker should expect a prison sentence, absent exceptional circumstances.<ref>
In British Columbia, a trafficker should expect a prison sentence, absent exceptional circumstances.<ref>
''R v Voong'', [http://canlii.ca/t/gjnwp 2015 BCCA 285] (CanLII){{perBCCA|Bennett JA}}{{at|1}}<br>
{{CanLIIRP|Voong|gjnwp|2015 BCCA 285 (CanLII)|325 CCC (3d) 267}}{{perBCCA|Bennett JA}}{{atL|gjnwp|1}}<br>
</ref>
 
In Ontario, conditional sentences are available but are restricted to "exceptional circumstances."<ref>
{{CanLIIRx|Mori|jcbxd|2020 ONCJ 620 (CanLII)}}{{AtL|jcbxd|39}}
</ref>
 
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".<REf>
{{CanLIIRP|Maskell|fp6dc|1981 ABCA 50 (CanLII)|58 CCC (2d) 408 , 29 A.R. 107}}{{perABCA|Moir JA}}<br>
{{CanLIIRP|Lau|1tbnn|2004 ABCA 408 (CanLII)|193 CCC (3d) 51}}{{perABCA|Hunt JA}}{{atL|1tbnn|20}}<br>
</ref>  
</ref>  
"Commercial" operations will vary from a few grams to 2 oz of cocaine.<ref>
{{ibid1|Lau}} at para 26
</ref>
When it is "wholesale commercial trafficking" the starting point is 4.5 years.<ref>
{{supra1|Lau}} at para 21<Br>
R. v. Chung (1999), 1999 ABCA 86 (CanLII), 232 A.R. 193 (C.A.)<br>
R. v. Honish (1989), 1989 ABCA 228 (CanLII), 100 A.R. 79 (C.A.)<br>
R. v. Ma (2003), 2003 ABCA 220 (CanLII), 330 A.R. 142 (C.A.)<br>
</ref>


{{reflist|2}}
{{reflist|2}}
==Drug Court==
{{quotation2|
{{removed|(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) {{AnnSec7|720(2)}} of the Criminal Code.
{{removed|(5)}}
{{LegHistoryCDSA|1996, c. 19}}, s. 10;
{{LegHistory90s|1999, c. 5}}, s. 49;
{{LegHistory10s|2012, c. 1}}, s. 43;
{{LegHistory10s|2017, c. 7}}, s. 7;
{{LegHistoryCDSA|2018, c. 16}}, s. 198;
{{LegHistoryCDSA|2022, c. 15}}, s. 19.
|{{CDSASec2|10}}
|{{NoteUpCDSA|10|4}}
}}


==Sentencing Ranges by Type of Drug==
==Sentencing Ranges by Type of Drug==

Latest revision as of 10:35, 26 July 2024

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.

– CDSA (CanLII), (DOJ)

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.

– CDSA (CanLII), (DOJ)

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.

– CDSA (CanLII), (DOJ)

Note up: 10(4)

Sentencing Ranges by Type of Drug

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