Drug Trafficking, Schedule I (Sentencing)

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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).

The societal costs of drug abuse and trafficking are significant. 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. Trafficking and use of cocaine has a close connection with violent crime.

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".

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

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

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

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

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

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.

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

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

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

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

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.
2. Low-Mid (mere courier): sentences for couriers can be between 3 to 6 years.
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.
4. High: (multi-kilogram trafficker): sentences typically range from 8 to 12 years

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.”

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.

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".

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

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.

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

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. Larger amounts upward of 3 kg will attract a range of 6 to 8 years. It has also be articulated as "substantial amounts" of cocaine attracting a range of 5 to 8 years.

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".

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

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.

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

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

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.

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.

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

Ancillary Sentencing Orders

Offence-specific Orders

Order	Conviction	Description
DNA Orders	s. 5(a) CDSA	For conviction under s. 5(a), a DNA order is discretionary as a secondary designated offence listed under s. 487.04 (a) or (b).
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

• 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