Drug Trafficking, Schedule I (Sentencing): Difference between revisions

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Ovid{{ibid}} at para 27<br>
Ovid{{ibid}} at para 27<br>
''R v Bryan'', [http://canlii.ca/t/fkxlx 2011 ONCA 273] (CanLII), [2011] O.J. No. 1581{{TheCourt}} at paras 1-2<br>
''R v Bryan'', [http://canlii.ca/t/fkxlx 2011 ONCA 273] (CanLII), [2011] O.J. No. 1581{{TheCourt}} at paras 1-2<br>
See also R. v Muise, [2007] O.J. No. 5553 (C.J.) {{NOCANLII}} at para 47, aff'd [http://canlii.ca/t/20zf3 2008 ONCA 665] (CanLII){{TheCourt}}<br>
See also R v Muise, [2007] O.J. No. 5553 (C.J.) {{NOCANLII}} at para 47, aff'd [http://canlii.ca/t/20zf3 2008 ONCA 665] (CanLII){{TheCourt}}<br>
''R v Peltier'', [http://canlii.ca/t/fwfwk 2013 ONCA 141] (CanLII){{perONCA|MacPherson JA}} at para 15<br>
''R v Peltier'', [http://canlii.ca/t/fwfwk 2013 ONCA 141] (CanLII){{perONCA|MacPherson JA}} at para 15<br>
''R v Italiano'', [http://canlii.ca/t/gh5kc 2015 ONSC 2216] (CanLII), [2013] O.J. No. 6459{{perONSC|O'Marra J}}, at paras 25-31<br>
''R v Italiano'', [http://canlii.ca/t/gh5kc 2015 ONSC 2216] (CanLII), [2013] O.J. No. 6459{{perONSC|O'Marra J}}, at paras 25-31<br>

Revision as of 00:40, 13 January 2019


Drug Trafficking, Schedule I
s. 5(1), (2) of the Controlled Drugs and Substances Act
Election / Plea
Crown Election Indictment
Jurisdiction Prov. Court

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

* Must be indictable. Preliminary inquiry also available.
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)
Minimum None
Maximum Life
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;

...
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

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) are straight indictable. The maximum penalty is life.

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.

Available Dispositions

Offence(s) Crown
Election		 Discharge
s. 730		 Suspended
Sentence
s. 731(1)(a)		 Stand-alone
Fine
s. 731(1)(b)		 Custody
s. 718.3, 787		 Custody and
Probation
s. 731(1)(b)		 Custody and
Fine
s. 734		 Conditional
Sentence (CSO)
s. 742.1
s. 5(3)(a) N/A

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.

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

Principles

Gravity
There is a distinction made in law between hard drugs (such as cocaine) and soft drugs (such as marijuana).[1]

The societal costs of drug abuse and trafficking are significant.[2] They include the effects on health care, lost productivity and financial loss due to enforcement.

Many courts have spoken to the societal harm of drug trafficking.[3] Trafficking and use of cocaine has a close connection with violent crime.[4]

Schedule I drugs, including cocaine, heroin, and methamphetamines, are "highly addictive and inflict great harm on individuals and society. Trafficking in these drugs is rightly considered a serious offence". [5]

The destructive nature of methamphetamines “mirror those of two other hard drugs, heroin and cocaine”.[6]

Fentanyl is considered one of the "most highly addictive and dangerous drugs" and so objectives in sentencing should focus on general deterrence and denunciation.[7]

Disposition
Trafficking in cocaine is typically a jail sentence. [8] This is particularly true in "dial-a-dope" schemes which are a form of commercial trafficking.[9]


Exceptional Circumstances
It has been suggested that only in "exceptional circumstances" should a sentence be outside of the normal range of jail.[10] These circumstances can take the form of the existence of "multiple mitigating factors".[11]

Factors
Smuggling any amount of drugs into a correctional facility is an aggravating factor.[12]

  1. ↑ R v Tuck, 2007 ONCA 495 (CanLII), [2007] O.J. No. 2626 (C.A.), per curiam at para 2
    R v Wellington, 1999 CanLII 3054 (ON CA), (1999), 132 CCC (3d) 470 (Ont. C.A.), per Feldman JA at 476
    R v Cunningham, 1996 CanLII 1311 (ON CA), (1996), 104 CCC (3d) 542 (Ont. C.A.), per curiam at 547
  2. ↑ Pushpanathan v Canada (Minister of Citizenship and Immigration), 1998 CanLII 778 (SCC), [1998] 1 SCR 982, per Bastarache J, at pp. 1039-1040
  3. ↑ see R v Aitkens, 2004 BCCA 411 (CanLII), per Newbury JA at para 7: "Drug trafficking has become a blight in our society"
    R v Beaudry, 2000 ABCA 243 (CanLII), (2002), 37 C.R. (5th) 1 (Alta. C.A.), per Berger JA at para 158 and 165 ("The damage to the community from trafficking in cocaine is substantial, and extends well beyond the offender and his prospective customers ... it contributes to a variety of other offences, with the potential for extremely serious health and economic consequences. Drug trafficking remains a serious problem in Canada.")
    R v Woolcock, [2002] OJ No 4927(*no CanLII links) at para 8 (“There is no dispute that crack cocaine is an extremely dangerous and insidious drug with potential to cause a great deal of harm to individuals and to society.”)
    R v Daya, 2007 ONCA 693 (CanLII), 227 CCC (3d) 367, per Moldaver and LaForme JJA at para 18
    R v Harris, 2008 CanLII 23493 (ON SC), [2008] O.J. No. 1976 (S.C.J.), per DM Brown J, at paras 21-22
    R v Johnson, 2010 BCCA 57 (CanLII), [2010] BCJ No. 301 (C.A.), per Bennett JA at para 29 ("correctly took into account the serious effect that cocaine has on fellow citizens and [the offender's] role in spreading this 'disease'.")
    R v Sem (S.), 2005 MBQB 208 (CanLII), per MacInnes J at paras 37-38
  4. ↑ R v Hamilton, 2004 CanLII 5549 (ON CA), (2004), 72 O.R. (3d) 1, per Doherty JA, at para 104
  5. ↑ R v Lloyd, 2016 SCC 13 (CanLII), per McLachlin CJ at para 26
  6. ↑ R v Villanueva, 2007 ONCJ 87 (CanLII), per MacDonnell J at para 27
    see also R v Nguyen, 2011 ONSC 6229 (CanLII), per McWatt J at para 41 (“The danger of methamphetamine to human life is becoming uncontrovertibly clear.”)
  7. ↑ R v Lu, 2016 ONCA 479 (CanLII), per curiam at para 9
  8. ↑ R v Al-Amiri, 2015 NLCA 37 (CanLII), per Barry JA, at para 61
  9. ↑ R v Sawatsky, 2007 ABCA 353 (CanLII), per Martin JA
    R v Maskill, (1981), 1981 ABCA 50 (CanLII), 29 A.R. 107, 58 CCC (2nd) 408, per Moir JA at para 20 and
    R v Rahime, 2001 ABCA 203 (CanLII), per curiam
  10. ↑ R v Peters (R.N.), 2015 MBCA 119 (CanLII), 323 Man.R. (2d) 237, per Monnin JA
    R v Tran (A.), 2015 MBCA 120 (CanLII), per Monnin JA
    R v Racca (R.A.), 2015 MBCA 121 (CanLII), per Burnett JA
  11. ↑ Tran, supra at para 24
    R v Voong (D.M.) et al., 2015 BCCA 285 (CanLII), per Bennett JA at para 59
  12. ↑ R v Taylor, 2013 SKCA 33 (CanLII), per Richards JA at para 15, 16

Ranges

See also: Drug Trafficking, Schedule I (Sentencing Cases) and Drug Trafficking, Schedule I, Cocaine (Sentencing Cases)

General Ranges
Sentencing ranges vary between provinces.

In Nova Scotia, an appropriate sentence for trafficking of Schedule I substances will range will typically span from 3 to 5 years. As such, conditional sentences are rarely available.[1]

In Saskatchewan, the range is between 18 months to 4 years for trafficking.[2]

In Newfoundland, trafficking in small quantities of cocaine is a sentence in the range of 6 to 18 months.[3]

It is infrequent that it will go below two years[4] and so will virtually guarantee a federal sentence.[5] There is no fixed minimum, however. There is still significant discretion.[6]

However, it is not unreasonable in certain exceptional circumstances to have sentences below two years.[7] The starting point for commercial trafficking in cocaine in small quantities is three years for most provinces.[8]

In Manitoba, there are several recognized levels of trafficking in cocaine:

  1. Low (street dealer): sentences typically start at less than two years and can range up to four years. [9]
  2. Low-Mid (mere courier): sentences for couriers can be between 3 to 6 years.[10]
  3. Mid (more than mere courier of large quantities): sentences typically range from 5 to 8 years if they are an insider, while couriers are in the range of 3 to 6 years.[11]
  4. High: (multi-kilogram trafficker): sentences typically range from 8 to 12 years[12]

It has been further suggested that “a person who traffics in a sophisticated manner at a kilogram level should, absent significant mitigating factors, expect no less a penalty than 10 years' incarceration. It should not matter whether that drug is cocaine or methamphetamine.” [13]

In Ontario, for possession of "a substantial amount of cocaine for the purpose of trafficking" the range is usually 5 to 5.5 years even with a guilty plea and no record.[14]

The Ontario "normal" range for "someone, without a record, convicted of possession for the purpose of trafficking in slightly more than a pound [or 453.59 grams] of cocaine".[15]

Trafficking heroin, even in small amounts, will result in federal sentences absent exceptional circumstances.[16]

Small amounts
In Ontario, the range of sentencing for trafficking in small amounts of crack cocaine is 6 months to 2 years less a day.[17]

Mid-range
Manitoba court has stated that the mid-level drug deal has a range of sentence between 7 to 8 years.[18]

Large amounts of Drugs (1kg+)
The range of sentence for trafficking of cocaine in the amounts of 1 kg or more will typically see sentences in the range of 5 years.[19] Larger amounts upward of 3 kg will attract a range of 6 to 8 years.[20] It has also be articulated as "substantial amounts" of cocaine attracting a range of 5 to 8 years.[21]

In Ontario, a first-time offender convicted for being a courier for large amounts of high-grade heroin should expect a range between 12 and 17 years jail absent "exceptional or extenuating circumstances".[22]

Couriers
The drug couriers' job is to transport drugs and protect their bosses from being detected.[23]

  1. ↑ R v Knickle, 2009 NSCA 59 (CanLII), per Roscoe JA
    R v Conway, 2009 NSCA 95 (CanLII), per Bateman JA
  2. ↑ R v Aube, 2009 SKCA 53 (CanLII), per Smith JA at para 19
    R v Shawile, 2012 SKCA 51 (CanLII), per Herauf JA
    R v Taylor, 2013 SKCA 33 (CanLII), per Richards JA at para 14
  3. ↑ R v Taylor, 2012 CanLII 1915 (NL SCTD), per Dymond J at para 12
  4. ↑ R v Dawe 2002 NSCA 147 (CanLII), per Hamilton JA
  5. ↑ R v Jamieson, 2011 NSCA 122 (CanLII), per Saunders JA at para 38
  6. ↑ R v Ostertag, 2000 ABCA 232 (CanLII), 266 A.R. 57, per Veit J at paras 12-16
  7. ↑ R v Murphy (M.P.), 2011 MBCA 84 (CanLII), per Monnin JA
    R v Panko (D.), 148 Man.R. (2d) 138, 2000 MBCA 45 (CanLII), per Huband JA
    R v Reid (B.A.C.), 1998 CanLII 17760 (MB CA), (1998), 131 Man.R. (2d) 153, per Helper JA
    R v Champagne (D.A.), 2000 MBCA 66 (CanLII) 148 Man.R. (2d) 104, per Helper JA
  8. ↑ AB: R v Maskill, (1981), 1981 ABCA 50 (CanLII), 29 A.R. 107, 58 CCC (2d) 408 (C.A.), per Moir J
    R v Rahime, 2001 ABCA 203 (CanLII), 286 A.R. 377, per curiam at para 26
    R v Marchesi, 460 A.R. 294, 2009 ABCA 304 (CanLII), per curiam at para 4
    R v McCulloch, 2011 ABCA 124 (CanLII), per curiam at para 8 - starting point sentence “for commercial trafficking in cocaine in small quantities”
    R v Rainville, 2010 ABCA 288 (CanLII), per Rowbotham JA at para 6
    R v Chung, 1999 ABCA 86 (CanLII), (1999), 135 AR 351 (CA), 18 WCB (2d) 611, per Fraser CJ
    NS: R v Knickle, 2009 NSCA 59 (CanLII), per Roscoe JA
  9. ↑ R v Gilchrist, 2004 MBCA 21 (CanLII), per Freedman JA
    R v Safaye, 2017 MBQB 217 (CanLII), per Greenberg J
  10. ↑ R v Rocha, 2009 MBCA 26 (CanLII), per Chartier JA at paras 61 to 64
    R v Traimany (P.), 2011 MBCA 104 (CanLII), 270 Man.R. (2d) 291, per Chartier JA at para 3
  11. ↑ Rocha, supra at paras 61 to 64
  12. ↑ R v Oddleifson, 2010 MBCA 44 (CanLII), per Chartier JA
  13. ↑ R v Grant, 2007 MBQB 13 (CanLII), per Scurfeild J at para 73
  14. ↑ R v Bajada, 2003 CanLII 15687 (ON CA), per Weiler JA at paras 12 to 14
    R v Ovid, 2016 ONSC 2974 (CanLII), per Campbell J, para 27
  15. ↑ Ovid, ibid. at para 27
    R v Bryan, 2011 ONCA 273 (CanLII), [2011] O.J. No. 1581, per curiam at paras 1-2
    See also R v Muise, [2007] O.J. No. 5553 (C.J.) (*no CanLII links) at para 47, aff'd 2008 ONCA 665 (CanLII), per curiam
    R v Peltier, 2013 ONCA 141 (CanLII), per MacPherson JA at para 15
    R v Italiano, 2015 ONSC 2216 (CanLII), [2013] O.J. No. 6459, per O'Marra J, at paras 25-31
    R v Feeney, 2015 ONSC 3218 (CanLII), [2015] O.J. No. 2584, per Garton J, at paras 32-40, 44-45, 55-68
    R v Ceballos, 2015 ONSC 720 (CanLII), [2015] O.J. No. 536, per MacDonnell J at paras 2, 5-12, 21-23
  16. ↑ R v Abdella, 2017 ONSC 1002 (CanLII), per O'Marra J at para 16
    R v Farizeh, [1994] O.J. No. 2624 (O.C.A.), 1994 CanLII 1145 (ON CA), per curiam
    R v Bahari, [1994] O.J. No. 2625 (O.C.A.), 1994 CanLII 1425 (ON CA), per curiam
  17. ↑ R v Woolcock [2002] OJ No 4927(*no CanLII links) at 15
    R v Madeiros, [2001] OJ No 5664 (Ont. SCJ)(*no CanLII links)
    R v Radassao, 1994 CanLII 779 (ON CA), [1994] OJ No 1990 (ONCA), per Griffiths JA
  18. ↑ Rocha, supra at para 64
    Traimany, supra, at para 3
  19. ↑ R v Bajada, 2003 CanLII 15687 (ON CA), (2003), 169 O.A.C. 226 (C.A.), per Weiler JA at para 13
  20. ↑ R v Oraha, 2012 ONSC 1439 (CanLII), per Archibald J at para 31
  21. ↑ R v Rage, 2018 ONCA 211 (CanLII), per curiam at para 14
  22. ↑ R v Sidhu, 2009 ONCA 81 (CanLII), per curiam at para 14
    R v Deol, 2017 ONCA 221 (CanLII), per Juriansz JA at para 48
  23. ↑ Traimany at para 3
    Rocha, supra at para 64

Conditional Sentences

Offences occurring before November 20, 2012 may be eligible for a conditional sentence in certain circumstances. Offences after that date are ineligible under s. 742.1 which prohibits conditional sentences for offences under s. 5(2) of the Controlled Drugs and Substances Act.[1]

In Ontario and Newfoundland, the conditional sentence is available for trafficking in only rare cases.[2] Those who are involved in a “dial-a-dope” operation will generally be sentenced to incarceration.[3]

In Saskatchewan, conditional sentences are available for trafficking in hard drugs. The appropriateness of a conditional sentences depends on several factors:[4]

  1. the sophistication and significance of the offence and the accused's place in it;
  2. the type and quantity of drug;
  3. the motivation for the offence: those who traffic to support their own habit may be more likely to receive a restorative disposition than those who traffic for other reasons;
  4. the need for and the utility of the deterrence which will be provided by the sentence imposed;
  5. the factors relating to the community like the significance of the problem; and,
  6. the age, lack of record and other personal circumstances of the accused.

The Code amendments concerning conditional sentences that came into force on November 6, 2012, prohibit conditional sentence for drug trafficking.

  1. ↑ See List of Criminal Code Amendments
  2. ↑ R v Ly, 1997 CanLII 2983 (ONCA), per Austin JA at 286 ("will be looked to only rarely in cases of drug trafficking")
    R v Brown, 1997 CanLII 10869 (NL CA), per Marshall JA at 155
  3. ↑ R v Sawatsky, 2007 ABCA 353 (CanLII), per Martin JA at para 4 ("We agree with the Crown that those who organize and manage "dial-a-dope" schemes to traffic in drugs, such as cocaine ... should usually be sentenced to terms of actual incarceration.")
  4. ↑ R v Pankewich, 2002 SKCA 7 (CanLII), per Jackson JA at para 49

Mandatory Minimums

Mandatory minimums were added in November 6, 2012.

The one year mandatory minimum for conviction under s. 5(3)(a)(i)(D) was found to be unconstitutional.[1]

The two year minimum for conviction under s. 5(3)(a)(ii)(B) relating to trafficking in prison.[2]

  1. ↑ R v Lloyd, 2014 BCPC 11 (CanLII), per Galati J - violates right against cruel and unusual punishment
  2. ↑ R v Carswell, 2018 SKQB 53 (CanLII), per Currie J

Ancillary Sentencing Orders

See also: Ancillary Orders

Offence-specific Orders

Order Conviction Description
DNA Orders s. 5(a) CDSA
Weapons Prohibition Orders s. 5 CDSA
  • For offences under s. 5 that are enumerated under s. 109(1)(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.

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 His Majesty the King on application of the Crown. NB: does not apply to summary offences.
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(1) 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. NB: does not apply to summary offences.

Other Sentencing Orders

Order Conviction Description
Non-communication order while offender in custody (s. 743.21) any The judge has the 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 discretionary surcharge under s. 737 of 30% of any fine order imposed, $100 per summary conviction or $200 per indictable conviction. If the offence occurs on or after October 23, 2013, the order has smaller minimum amounts (15%, $50, or $100).

See Also


v • e
 
Drug Offences
Offences / Sentencing
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