Sentencing for Drug Offences: Difference between revisions
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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. | 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>...<Br> | <br>...<Br> | ||
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. | 1996, c. 19, s. 10; {{LegHistory90s|1999, c. 5, s. 49}}; 2012, c. 1, s. 43; 2017, c. 7, s. 7; {{LegHistory|2018, c. 16, s. 198.}} | ||
|[http://canlii.ca/t/7vtc#sec10 CDSA] | |[http://canlii.ca/t/7vtc#sec10 CDSA] | ||
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; Dial-a-Dope | ; 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> | ||
{{CanLIIR|Dickey|gpn8k|2016 BCCA 177}}{{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> | ||
{{CanLIIR|Cisneros|g6nm3|2014 BCCA 154}}{{perBCCA|Groberman JA}} | |||
</ref> | </ref> | ||
Accordingly, denunciation and deterrence are primary goals in sentencing.<ref> | Accordingly, denunciation and deterrence are primary goals in sentencing.<ref> | ||
Revision as of 18:40, 9 November 2019
Purpose of Sentencing for Drug Offences
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.
...
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
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]
- ↑
USA v Dynar, 1997 CanLII 359 (SCC), (1997), 115 CCC (3d) 481 (SCC), 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”)
- ↑
R v Dickey, 2016 BCCA 177, per Lowry JA, at para 28
- ↑ R v Cisneros, 2014 BCCA 154, per Groberman JA
- ↑ Cisneros, ibid.
- ↑
Dickey, supra, at para 28
- ↑
Dickey, supra, at para 28
General Factors
Under the Controlled Drugs and Substances Act, there are further factors that should be considered:
s. 10
...
- Factors to take into consideration
(2) If a person is convicted of a designated substance offence for which the court is not required to impose a minimum punishment, 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.
...
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
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
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]
- ↑
R v Oickle, 2015 NSCA 87 (CanLII), 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]
- ↑ see R v Andrews, [2005] OJ No 5708 (S.C.)(*no CanLII links)
- ↑ R v Lively, 2006 NSSC 274 (CanLII), per Gruchy J, at para 39
- ↑
R v Matias-Pedro, 2003 BCCA 590 (CanLII), per Rowles JA, at para 18
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.
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
- ↑ R v Fifield, 1978 CanLII 812 (NS CA), (1978) 25 NSR (2d) 407, per MacKeigan CJ
- ↑
R v Williams, [2010] OJ No 2971 (ONSC)(*no CanLII links)
, at para 20
R v Woolcock, [2002] OJ No 4927 (C.A.)(*no CanLII links) , at para 5
R v Mandolino, [2001] OJ No 289 (C.A.)(*no CanLII links) , at para 1
R v Belenky, 2010 ABCA 98 (CanLII), per McDonald JA, at para 3
R v Lau, 2004 ABCA 408 (CanLII), (2004), 193 CCC (3d) 51 (Alta. C.A.), per Hunt JA, at para 33
R v Nguyen, 2001 BCCA 624 (CanLII), per Ryan JA, at para 7
- ↑
R v Bui, 2004 CanLII 7201 (ON CA), [2004] OJ No 3452 (C.A.), per curiam, at para 2
Woolcock, supra, at para 17
Nguyen, supra, at para 14
- ↑ see e.g. R v Salame, 1999 ABCA 318 (CanLII), per Fraser CJ, at para 3
- ↑ e.g. see R v Murray, 2012 ABPC 123 (CanLII), per Semenuk J
Ranges
In British Columbia, a trafficker should expect a prison sentence, absent exceptional circumstances.[1]
- ↑
R v Voong, 2015 BCCA 285 (CanLII), per Bennett JA, at para 1
Sentencing Ranges by Type of Drug
- Drug Trafficking, Schedule I (Sentencing): Maximum penalty of life
- 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
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