Canadian Criminal Sentencing/Offences/Drug Offences
Purpose of Sentencing for Drug Offences
[edit | edit source]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.
– CDSA
General Factors
[edit | edit source]Under the Controlled Drugs and Substances Act, there are further factors that should be considered:
s. 10
...
Circumstances to take into consideration
(2) If a person is convicted of a designated substance offence, 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,[1]
- (iii) trafficked in a substance included in Schedule I, II, III or IV 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 eighteen years, or
- (iv) trafficked in a substance included in Schedule I, II, III or IV, or possessed such a substance for the purpose of trafficking, to a person under the age of eighteen years;
(b) was previously convicted of a designated substance offence; or
(c) used the services of a person under the age of eighteen years to commit, or involved such a person in the commission of, a designated substance 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.
– 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.
- ↑ see also Dobbin [2009] N.J. No. 348
General Principles and Factors for Trafficking
[edit | edit source]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 commercial 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) 25 NSR (2d) 407
- ↑
R v Williams [2010] OJ No 2971 at 20
R. v. Woolcock, [2002] O.J. No. 4927 (C.A.) at para. 5
R. v. Mandolino, [2001] O.J. No. 289 (C.A.) at para. 1
R. v. Belenky, 2010 ABCA 98, at para. 3
R. v. Lau 2004 ABCA 408 (CanLII), (2004), 193 C.C.C. (3d) 51 (Alta. C.A.) at para. 33
R. v. Nguyen, 2001 BCCA 624, at para. 7
- ↑
R. v. Bui, [2004] O.J. No. 3452 (C.A.) at para. 2
R v Woolcock, [2002] OJ No 4927 at para. 17
R v Nguyen, 2001 BCCA 624 at para. 14
- ↑ see e.g. R. v. Salame, 1999 ABCA 318 at para. 3
- ↑ e.g. see R. v. Murray, 2012 ABPC 123