Canadian Criminal Sentencing/Offences/Drug Trafficking (Schedule I)

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. (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 subsection (4), where 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; ... Punishment in respect of specified substance (4) Every person who contravenes subsection (1) or (2), where the subject-matter of the offence is a substance included in Schedule II in an amount that does not exceed the amount set out for that substance in Schedule VII, is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years less a day. Interpretation (5) For the purposes of applying subsection (3) or (4) 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. ... CDSA Schedule I: Cocaine, Crack, Heroin, MDMA, etc. For principles on Drug Offences Generally, see Drug Offences Principles There is a distinction made in law between hard drugs (such as cocaine) and soft drugs (such as marijuana).R. v. Tuck, [2007[ O.J. No. 2626 (C.A.) at para. 2 R. v. Wellington 1999 CanLII 3054 (ON CA), (1999), 132 C.C.C. (3d) 470 (Ont. C.A.) at 476 R. v. Cunningham1996 CanLII 1311 (ON CA), (1996), 104 C.C.C. (3d) 542 (Ont. C.A.) at 547 The societal costs of drug abuse and trafficking are significant.Pushpanathan v. Canada (Minister of Citizenship and Immigration), 1998 CanLII 778 (SCC), [1998] 1 S.C.R. 982, at pp. 1039-1040 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.see R. v. Aitkens, 2004 BCCA 411 (CanLII), 2004 BCCA 411 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.) 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 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. Johnson, [2010] B.C.J. No. 301 (C.A.) 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'.") Trafficking and use of cocaine has a close connection with violent crime.R. v. Hamilton 2004 CanLII 5549 (ON CA), (2004), 72 O.R. (3d) 1, at para. 104 Offenders found trafficking in a Schedule I controlled substance (e.g. Opiates) are liable for an indictable offence with a maximum penalty of life in jail. Trafficking in cocaine is typically a jail sentence. This is particularly true in "dial-a-dope" schemes which are a form of commercial trafficking.R. v. Sawatsky, 2007 ABCA 353 R. v. Maskill, (1981), 29 A.R. 107, 58 C.C.C. (2nd) 408 at para. 20 and R. v. Rahime, 2001 ABCA 203 The destructive nature of methamphetamines “mirror those of two other hard drugs, heroin and cocaine”.R v Villanueva, 2007 ONCJ 87 at 27 see also R. v. Nguyen, 2011 ONSC 6229 at 41 (“The danger of methamphetamine to human life is becoming uncontrovertibly clear.”) 2 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.R. v. Knickle, 2009 NSCA 59 R. v. Conway, 2009 NSCA 95 In Saskatchewan, the range is between 18 months to 4 years for trafficking.R. v. Aube, 2009 SKCA 53 at para 19 R v Shawile, 2012 SKCA 51 In Newfoundland, trafficking in small quantities of cocaine is a sentence in the range of 6 to 18 months.R. v. Taylor, 2012 CanLII 1915 (NL SCTD) at para 12 It is infrequent that it will go below two yearsR. v. Dawe 2002 NSCA 147 and so will virtually guarantee a federal sentence.R. v. Jamieson, 2011 NSCA 122 at 38 There is no fixed minimum, however. There is still significant discretion.R. v. Ostertag, 2000 ABCA 232, 266 A.R. 57 at paras. 12-16 However, it is not unreasonable in certain exceptional circumstances to have sentences below two years.R. v. Murphy (M.P.), 2011 MBCA 84 R. v. Panko (D.), 148 Man.R. (2d) 138, 2000 MBCA 45 R. v. Reid (B.A.C.) 1998 CanLII 17760 (MB CA), (1998), 131 Man.R. (2d) 153 R. v. Champagne (D.A.), 2000 MBCA 66, 2000 MBCA 66, 148 Man.R. (2d) 104 The starting point for commercial trafficking in cocaine in small quantities is three years for most provinces.AB: R. v. Maskill, (1981), 29 A.R. 107, 58 C.C.C. (2d) 408 (C.A.); R. v. Rahime, 286 A.R. 377 at para. 26 2001 ABCA 203 R. v. Marchesi, 460 A.R. 294 at para. 4 2009 ABCA 304 R v Rainville, 2010 ABCA 288 at para 6 R v Chung, 135 AR 351 (CA), 18 WCB (2d) 611 NS: R. v. Knickle, 2009 NSCA 59 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.R. v. Bajada 2003 CanLII 15687 (ON CA), (2003), 169 O.A.C. 226 (C.A.)at para. 13 Larger amounts upward of 3 kg will attract a range of 6 to 8 years.R. v. Oraha, 2012 ONSC 1439 at 31 In Ontario, the range of sentencing for trafficking in small amounts of crack cocaine is 6 months to 2 years less a day.R v Woolcock [2002] OJ No 4927 at 15 R v MAdeiros, [2001] OJ No 5664 (Ont. SCJ) R v Radassao, [1994] OJ No 1990 (ONCA) 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. R v Gilchrist, 2004 MBCA 21 Low-Mid (mere courier): sentences for couriers can be between 3 to 6 years.R v Rocha, 2009 MBCA 26 at 61 to 64 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.R v Rocha 2009 MBCA 26 at 61 to 64 High: (multi-kilogram trafficker): sentences typically range from 8 to 12 yearsR v Oddleifson, 2010 MBCA 44 Manitoba court has stated that the mid-level drug deal has a range of sentence between 7 and 8 years.R. v. Rocha, 2009 MBCA 26 at para. 64; R. v. Traimany, 2011 MBCA 104 at 3 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.” R v Grant, 2007 MBQB 13 at 73 2 Conditional Sentences In Ontario and Newfoundland, the conditional sentence is available for trafficking in only rare cases. A conditional sentence is no longer available for any trafficking offences under the CDSA, s.742.1(c) Canadian Criminal Code. R v Ly 1997 CanLII 2983 (ONCA) at 286 ("will be looked to only rarely in cases of drug trafficking") R. v. Brown 1997 CanLII 10869 (NL CA) at 155 Those who are involved in a “dial-a-dope” operation will generally be sentenced to incarceration.R. v. Sawatsky, 2007 ABCA 353 (CanLII), 2007 ABCA 353 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.") In Saskatchewan, conditional sentences are available for trafficking in hard drugs. The appropriateness of a conditional sentences depends on several factors:R v Pankewich, 2002 SKCA 7 at para. 49 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. 2 See Also Canadian Criminal Sentencing/Offences/Offences by Penalty Canadian Criminal Law/Appendix/CDSA Schedules Drug Trafficking (Schedule I)