Trafficking in hard drugs: must the punishment always be jail?
Date Updated: May 15, 2020
Written By: Ravi Prithipaul (Alberta Criminal Defence Lawyer)
Summary
The use of illicit and especially “hard” drugs like cocaine is inherently dangerous. The criminal law has long forbidden drug trafficking and the courts in Alberta, in particular, have consistently imposed substantial jail sentences for those convicted of trafficking in hard drugs. However, drug use and the drug trade are also undeniably symptoms of personal and social factors such as mental illness, poverty, and racism. A large proportion of drug trafficking cases involve persons who suffer from addiction themselves, come from economically depressed communities, and are members of racial minorities. Must these offenders invariably receive jail?
Detailed Law Breakdown
The answer, based on a reading of recent judgments from the Alberta Court of Appeal, seems to be “yes” – cocaine trafficking at the commercial level almost always results in jail. The Court’s approach originates in a 1981 decision known as R v Maskell, 1981 ABCA 50 which contains this passage: “This was clearly a commercial operation on something more than a minimal scale. It called for a penitentiary term”. Since Maskell was decided, courts in Alberta have consistently imposed jail for cocaine trafficking “on more than a minimal scale”.
To illustrate the reach of the Maskell decision, consider the case of R v Perrot, [2015] A.J. No. 681 (CA). Thirty four years after Maskell was decided, the Alberta Court of Appeal had to contend with the appeal of an impoverished aboriginal male, “a man on the skids”, who sold some crack cocaine to an undercover officer outside a homeless shelter. Mr. Perrot had lost all of his family, was addicted himself, and led “a painful existence”. The Court of Appeal nonetheless affirmed a 12 month jail sentence in what the Court recognized was “a sad case”.
More recent Alberta Court judgments continue to uphold the principle that anything more than minimal scale trafficking in cocaine must attract jail, despite factors such as the individual offender’s status as aboriginal and his or her prospects for rehabilitation: eg. R v L’Hirondelle, 2018 ABCA 33.
Thoughts from a Criminal Lawyer’s Perspective
Sentencing is one of the most difficult areas in criminal law. There exists a fundamental tension between the desire to denounce unlawful conduct on one hand, and the need to individualize a punishment to take into account the offender’s personal circumstances. For defence counsel, judicially-created principles that certain categories of offence must attract jail are inherently problematic because they inflict disproportionate harm on individuals whose personal circumstances call for rehabilitative or restorative sentencing options.
There are, in this writer’s opinion, two approaches that justify departures from the rule that trafficking must attract jail. The first is to recognize the availability of suspended sentences even for trafficking in hard drugs. To date, written judgments from courts in British Columbia, Manitoba, and Ontario, have either imposed or upheld on appeal probation instead of jail for convicted cocaine traffickers: R. v. Voong, [2015] B.C.J. No. 1335 (CA); R v Peters, [2015] M.J. No. 322 (CA); and R. v. McGill, [2016] O.J. No. 1346 (CJ). In some of these cases, the accused were aboriginal and had endured abuse, deprivation, and social dislocation. Rehabilitation is a crucial feature in all of the judgments where probation was imposed.
A second argument results from a recent decision of the Supreme Court of Canada: R. v. Friesen, [2019] S.C.J. No. 100. That case concerns itself with the appropriate sentence for very serious sexual crimes against children. However, the Supreme Court also commented on the correctness of what are known as starting point sentences and, in doing so, it referred pointedly to the Alberta Court of Appeal’s insistence on adhering to sentencing ranges for certain categories of offence: “Ranges of sentence and starting points cannot be binding in either theory or practice, and appellate courts cannot interpret or apply the standard of review to enforce them, contrary to R. v. Arcand, 2010 ABCA 363, 40 Alta. L.R. (5th) 199, at paras. 116-18 and 273” (Friesen, para. 37).
It is too early to tell to what extent the Supreme Court’s judgment in Friesen will force trial and provincial appellate courts to re-think their deference to starting point sentences. For this writer, there is a need for far more judicial flexibility towards the sentencing of drug offenders whose disadvantaged circumstances and prospects for rehabilitation are ill-served by harsh jail sentences.
What this brief discussion illustrates is how competent defence counsel can advocate for their clients. If you are charged with a narcotics offence, you should retain counsel who is experienced in these matters. Mr. Ravi Prithipaul, QC has over 25 years in defending drug trafficking and other criminal matters. Call Mr. Prithipaul at 780 705 7737 to arrange for a free initial consultation
Last modified: May 26, 2020
