Drug Trafficking, Schedule I (Sentencing): Difference between revisions
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===Principles=== | ===Principles=== | ||
'''Gravity'''<br> | '''Gravity'''<br> | ||
There is a distinction made in law between hard drugs (such as cocaine) and soft drugs (such as marijuana).<ref>''R v Tuck'', [http://canlii.ca/t/1rxq0 2007 ONCA 495] (CanLII), [2007] OJ No 2626 (C.A.){{TheCourt}} at | There is a distinction made in law between hard drugs (such as cocaine) and soft drugs (such as marijuana).<ref>''R v Tuck'', [http://canlii.ca/t/1rxq0 2007 ONCA 495] (CanLII), [2007] OJ No 2626 (C.A.){{TheCourt}}{{at|2}}<br> | ||
''R v Wellington'', [http://canlii.ca/t/1f993 1999 CanLII 3054] (ON CA), (1999), 132 CCC (3d) 470 (Ont. C.A.){{perONCA|Feldman JA}} at 476<br> | ''R v Wellington'', [http://canlii.ca/t/1f993 1999 CanLII 3054] (ON CA), (1999), 132 CCC (3d) 470 (Ont. C.A.){{perONCA|Feldman JA}} at 476<br> | ||
''R v Cunningham'', [http://canlii.ca/t/6j8q 1996 CanLII 1311] (ON CA), (1996), 104 CCC (3d) 542 (Ont. C.A.){{TheCourt}} at 547 <br> | ''R v Cunningham'', [http://canlii.ca/t/6j8q 1996 CanLII 1311] (ON CA), (1996), 104 CCC (3d) 542 (Ont. C.A.){{TheCourt}} at 547 <br> | ||
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Fentanyl is considered one of the "most highly addictive and dangerous drugs" and so objectives in sentencing should focus on general deterrence and denunciation.<ref> | Fentanyl is considered one of the "most highly addictive and dangerous drugs" and so objectives in sentencing should focus on general deterrence and denunciation.<ref> | ||
''R v Lu'', [http://canlii.ca/t/gs5s0 2016 ONCA 479] (CanLII){{TheCourt}} at | ''R v Lu'', [http://canlii.ca/t/gs5s0 2016 ONCA 479] (CanLII){{TheCourt}}{{at|9}}<br> | ||
</ref> | </ref> | ||
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AB: ''R v Maskill'', (1981), [http://canlii.ca/t/fp6dc 1981 ABCA 50] (CanLII), 29 A.R. 107, 58 CCC (2d) 408 (C.A.){{perABCA|Moir J}}<br> | AB: ''R v Maskill'', (1981), [http://canlii.ca/t/fp6dc 1981 ABCA 50] (CanLII), 29 A.R. 107, 58 CCC (2d) 408 (C.A.){{perABCA|Moir J}}<br> | ||
''R v Rahime'', [http://canlii.ca/t/5rfb 2001 ABCA 203] (CanLII), 286 A.R. 377{{TheCourt}} at para 26<br> | ''R v Rahime'', [http://canlii.ca/t/5rfb 2001 ABCA 203] (CanLII), 286 A.R. 377{{TheCourt}} at para 26<br> | ||
''R v Marchesi'', 460 A.R. 294, [http://canlii.ca/t/25q69 2009 ABCA 304] (CanLII){{TheCourt}} at | ''R v Marchesi'', 460 A.R. 294, [http://canlii.ca/t/25q69 2009 ABCA 304] (CanLII){{TheCourt}}{{at|4}}<br> | ||
''R v McCulloch'', [http://canlii.ca/t/fl5rh 2011 ABCA 124] (CanLII){{TheCourt}} at para 8 - starting point sentence “for commercial trafficking in cocaine in small quantities”<br> | ''R v McCulloch'', [http://canlii.ca/t/fl5rh 2011 ABCA 124] (CanLII){{TheCourt}} at para 8 - starting point sentence “for commercial trafficking in cocaine in small quantities”<br> | ||
''R v Rainville'', [http://canlii.ca/t/2ct06 2010 ABCA 288] (CanLII){{perABCA| Rowbotham JA}} at | ''R v Rainville'', [http://canlii.ca/t/2ct06 2010 ABCA 288] (CanLII){{perABCA| Rowbotham JA}}{{at|6}}<br> | ||
''R v Chung'', [http://canlii.ca/t/5s9k 1999 ABCA 86] (CanLII), (1999), 135 AR 351 (CA), 18 WCB (2d) 611{{perABCA|Fraser CJ}}<br> | ''R v Chung'', [http://canlii.ca/t/5s9k 1999 ABCA 86] (CanLII), (1999), 135 AR 351 (CA), 18 WCB (2d) 611{{perABCA|Fraser CJ}}<br> | ||
NS: ''R v Knickle'', [http://canlii.ca/t/23tc9 2009 NSCA 59] (CanLII){{perNSCA|Roscoe JA}}<br> | NS: ''R v Knickle'', [http://canlii.ca/t/23tc9 2009 NSCA 59] (CanLII){{perNSCA|Roscoe JA}}<br> | ||
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</ref> | </ref> | ||
# Low-Mid (mere courier): sentences for couriers can be between 3 to 6 years.<ref>''R v Rocha'', [http://canlii.ca/t/22qvh 2009 MBCA 26] (CanLII){{perMBCA|Chartier JA}} at paras 61 to 64<br> | # Low-Mid (mere courier): sentences for couriers can be between 3 to 6 years.<ref>''R v Rocha'', [http://canlii.ca/t/22qvh 2009 MBCA 26] (CanLII){{perMBCA|Chartier JA}} at paras 61 to 64<br> | ||
R v Traimany (P.), [http://canlii.ca/t/fpg4m 2011 MBCA 104] (CanLII), 270 Man.R. (2d) 291{{perMBCA|Chartier JA}} at | R v Traimany (P.), [http://canlii.ca/t/fpg4m 2011 MBCA 104] (CanLII), 270 Man.R. (2d) 291{{perMBCA|Chartier JA}}{{at|3}}</ref> | ||
# 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.<ref>{{supra1|Rocha}} at paras 61 to 64</ref> | # 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.<ref>{{supra1|Rocha}} at paras 61 to 64</ref> | ||
# High: (multi-kilogram trafficker): sentences typically range from 8 to 12 years<ref>''R v Oddleifson'', [http://canlii.ca/t/29tj0 2010 MBCA 44] (CanLII){{perMBCA|Chartier JA}}</ref> | # High: (multi-kilogram trafficker): sentences typically range from 8 to 12 years<ref>''R v Oddleifson'', [http://canlii.ca/t/29tj0 2010 MBCA 44] (CanLII){{perMBCA|Chartier JA}}</ref> | ||
Revision as of 14:32, 13 January 2019
- < Criminal Law
- < Offences
- < Drugs
| 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 (*) |
| Indictable Dispositions | |
| Avail. Disp. | Suspended Sentence (731(1)(a)) |
| 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]
- ↑ R v Tuck, 2007 ONCA 495 (CanLII), [2007] OJ 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
- ↑ Pushpanathan v Canada (Minister of Citizenship and Immigration), 1998 CanLII 778 (SCC), [1998] 1 SCR 982, per Bastarache J, at pp. 1039-1040
- ↑
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] OJ 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
- ↑ R v Hamilton, 2004 CanLII 5549 (ON CA), (2004), 72 O.R. (3d) 1, per Doherty JA, at para 104
- ↑ R v Lloyd, 2016 SCC 13 (CanLII), per McLachlin CJ at para 26
- ↑ 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.”) - ↑
R v Lu, 2016 ONCA 479 (CanLII), per curiam, at para 9
- ↑
R v Al-Amiri, 2015 NLCA 37 (CanLII), per Barry JA, at para 61
- ↑
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 - ↑
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
- ↑
Tran, supra at para 24
R v Voong (D.M.) et al., 2015 BCCA 285 (CanLII), per Bennett JA at para 59
- ↑
R v Taylor, 2013 SKCA 33 (CanLII), per Richards JA at para 15, 16
Ranges
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:
- Low (street dealer): sentences typically start at less than two years and can range up to four years. [9]
- Low-Mid (mere courier): sentences for couriers can be between 3 to 6 years.[10]
- 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]
- 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]
- ↑
R v Knickle, 2009 NSCA 59 (CanLII), per Roscoe JA
R v Conway, 2009 NSCA 95 (CanLII), per Bateman JA - ↑
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
- ↑ R v Taylor, 2012 CanLII 1915 (NL SCTD), per Dymond J at para 12
- ↑ R v Dawe 2002 NSCA 147 (CanLII), per Hamilton JA
- ↑ R v Jamieson, 2011 NSCA 122 (CanLII), per Saunders JA at para 38
- ↑ R v Ostertag, 2000 ABCA 232 (CanLII), 266 A.R. 57, per Veit J at paras 12-16
- ↑
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
- ↑
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
- ↑ R v Gilchrist, 2004 MBCA 21 (CanLII), per Freedman JA
R v Safaye, 2017 MBQB 217 (CanLII), per Greenberg J
- ↑ 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 - ↑ Rocha, supra at paras 61 to 64
- ↑ R v Oddleifson, 2010 MBCA 44 (CanLII), per Chartier JA
- ↑ R v Grant, 2007 MBQB 13 (CanLII), per Scurfeild J at para 73
- ↑
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
- ↑
Ovid, ibid. at para 27
R v Bryan, 2011 ONCA 273 (CanLII), [2011] OJ No 1581, per curiam at paras 1-2
See also R v Muise, [2007] OJ 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] OJ No 6459, per O'Marra J, at paras 25-31
R v Feeney, 2015 ONSC 3218 (CanLII), [2015] OJ No 2584, per Garton J, at paras 32-40, 44-45, 55-68
R v Ceballos, 2015 ONSC 720 (CanLII), [2015] OJ No 536, per MacDonnell J at paras 2, 5-12, 21-23
- ↑
R v Abdella, 2017 ONSC 1002 (CanLII), per O'Marra J at para 16
R v Farizeh, [1994] OJ No 2624 (O.C.A.), 1994 CanLII 1145 (ON CA), per curiam
R v Bahari, [1994] OJ No 2625 (O.C.A.), 1994 CanLII 1425 (ON CA), per curiam
- ↑
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
- ↑ Rocha, supra at para 64
Traimany, supra, at para 3 - ↑ R v Bajada, 2003 CanLII 15687 (ON CA), (2003), 169 O.A.C. 226 (C.A.), per Weiler JA at para 13
- ↑ R v Oraha, 2012 ONSC 1439 (CanLII), per Archibald J at para 31
- ↑
R v Rage, 2018 ONCA 211 (CanLII), per curiam at para 14
- ↑
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
- ↑ 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]
- the sophistication and significance of the offence and the accused's place in it;
- the type and quantity of drug;
- 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;
- the need for and the utility of the deterrence which will be provided by the sentence imposed;
- the factors relating to the community like the significance of the problem; and,
- 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.
- ↑
See List of Criminal Code Amendments
- ↑
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 - ↑ 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.")
- ↑ 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]
- ↑ R v Lloyd, 2014 BCPC 11 (CanLII), per Galati J - violates right against cruel and unusual punishment
- ↑ R v Carswell, 2018 SKQB 53 (CanLII), per Currie J
Ancillary Sentencing Orders
Offence-specific Orders
| Order | Conviction | Description |
|---|---|---|
| DNA Orders | s. 5(a) CDSA |
|
| Weapons Prohibition Orders | s. 5 CDSA |
|
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
- Offences by Penalty
- CDSA Schedules
- Drug Trafficking, Schedule II (Sentencing): Maximum penalty of life
- Drug Trafficking, Schedule III (Sentencing): Maximum penalty of 10 years
- Drug Trafficking, Schedule IV (Sentencing): Maximum penalty of 3 years
| ||||||||