Differences between USA Criminal Court Sentences vs Canada Court Sentences for similar criminal code convictions e.g. drug trafficking: Principles of sentencing in Canadian Law versus U.S. Federal Criminal Law , as applied to Drug Offences
Organized Criminal Gangs & Canada-US Cross Border Drug Trafficking/Smuggling: The Bacon Brothers, BC Bud - Marijuana Grow Ops, Hells Angels,
Red Scorpions, Independent Soldiers, UN Gang: Quite the colorful collage
of names we have here on the West Coast.
There has recently been a lot of news
coverage regarding the disparity between the length of sentences received
in Canada and the USA for people convicted of similar drug offences.
Most recently, in Dec. 2009, Canadian UN Gang Leader Clay Rouche (who
was an associate of Duane Harvey Meyer, a murdered associate) was sentenced
by the Honorable Judge Robert Lasnik (of the U.S. District Court for
Western Washington) to 30 years imprisonment under U.S. Federal
Drug Charges for cross-border smuggling of controlled substances and
money laundering. Rouche's apparent successor, Barzan Tilli-Choli
was recently arrested for a murder conspiracy-plot to off the Bacon
My unscientific quick review of sentencing cases for similar cross-border
offences in Canada would suggest it hard to find a sentence of over
10 years, with many in the 4-10 year range.
Why the difference? Let's look first at the offence regime and then
at the Sentencing Principles that Judges are bound to consider when
determining a fit and proper sentence.
Scheme & Offences
In Canada, Crown attorneys prosecute
drugs like marijuana and cocaine, not under the Criminal Code, RSC,
but a separate Act of Parliament, called the Controlled Drugs and
Substances Act, SC, 1996 ('CDSA'). This replaced the
Narcotics Control Act.
As it stands today, there are NO MINIMUM SENTENCES for Drug offences
in Canada. However, we are on the eve of that Change (see below), as
new Amendments to the CDSA create Mandatory Minimum Sentences (MMS).
There are eight Schedules of various substances listed in the Act.
Schedule I contains common drugs such as: Cocaine; Coca; Opium Poppy
derivatives (Heroin, Opium, Morphine); and PCP. Schedule III contains
common drugs such as: LSD; amphetamines;. Schedule IV contains
common substances such as certain steroids. Other schedules
contain Hashish and Cannabis.
POSSESSION CHARGES & PUNISHMENT
4(1) of the CDSA prohibits the Possession
of substances found in Schedule I, II, and III.
For Schedule I offences:
If the Crown elects to proceed by way
of Indictment (akin to Felony Prosecution), the maximum term of imprisonment
is 7 years. (4)(3)(a), CDSA.
If the Crown elects to proceed by Summary Offence (akin to a misdemeanor),
then on a first offence, a fine not exceeding $1,000, and/or imprisonment
to a maximum of 6 months. Subsequent Summary offences allow for up to
$2,000 in fines, and/or up to 1 year in jail. See(4)(3)(b)(i)-(ii).
For Schedule II offences:
If the Crown elects to proceed by Indictment,
a term not exceeding 5 years less a day; and upon Summary prosecution,
a maximum fine of $1,000 and/or up to 6 months imprisonment. Subsequent
Summary offences allow for up to $2,000 in fines, and/or up to 1 year
in jail. See(4)(4)(b)(i)-(ii).
There are other Possession punishment schemes within the statute relating
to the other schedule drugs. This may include offences such as
the recent charges against Dr. Anthony Galea, who allegedly under investigation
for provided performance-enhancing drugs such as Actovegin to athletes.
He recently treated athletes such as Tiger Wood.
TRAFFICKING IN SUBSTANCE, or POSSESSION
FOR PURPOSE OF TRAFFICKING
Section 5 of the CDSA prohibits trafficking or Possession for the Purposes
of Trafficking in Schedule I, II, III or IV drugs or substances.
Section 5(3) provides a maximum penalty
of Life Imprisonment for where one trafficks or possession for the purposes
of trafficking, Schedule I or II offences. 5.(3)(a) CDSA.
For Trafficking or Possession for the
Purposes of Trafficking Schedule III drugs or substances, a maximum
of 10 years upon Indictment, or maximum 18 months for Summary Prosecution.
Schedule IV convictions allow for a maximum term of 3 years for Indictable
offences, and up to 1 year for summary prosecutions. 5.(3)(c) CDSA.
IMPORTING/EXPORTING or POSSESSION FOR PURPOSES OF IMPORTING/EXPORTING
Section 6 deals with Importing and Exporting of Scheduled drugs and
Importing or Exporting penalty scheme allows for a maximum f Imprisonment
for Life for Schedule I and II Drugs; and up to 10 years for Schedule
III or IV drugs.
Section 7 of the CDSA deals with the Production of the drugs or substances.
For Production, other than cannabis (marijuana), the maximum term is
Life Imprisonment. Where the subject-matter is cannabis (marijuana)
the maximum term is 7 years.
Judicial Discretion to fashion Sentence.
Case law, or precedent along with other factors (submissions of parties,
offender background, etc.) assists the Judges in determining a fit sentence.
There is a latitude afforded the Judges.
US-STYLE SENTENCING COMES TO CANADA:
Proposed Amendments, Bill C-15, of the 40th Parliament, which
is an Act to Amend the CDSA, completed the 3rd Reading
of the Bill in the House of Commons and passed 194 votes to 54 (with
Conservatives, and Liberal support), and is currently in the Senate,
with the 3rd Reading recently completed on December 14, 2009.
As of this writing, the Bill has yet to receive Royal Assent.
The Highlights of the Act, include, provisions for Mandatory Minimum
Sentencing (MMS) for serious drug offences, to increase the maximum
penalty for cannabis (marijuana) production, and to reschedule certain
substances from Schedule III to I (allowing for greater penalties).
New sentencing regime is to take place, where with the existence of
aggravating factors, depending on the number of marijuana plants trigger
MMS. For example 9 months for 5-200 plants, 1 year for 201-500,
and 3 years for 500 plus plants.
NO MORE HOUSE-ARREST FOR DRUG CONVICTIONS
The availability, under s.742 of the Criminal Code, of the Conditional
Sentence Order (CSO) - where the offender serves his jail term of less
than 2 years in the community, usually with conditions of Supervision,
Curfew, house-arrest, electronic home monitoring, will no longer
be available for MMS offences. This is a material change for many
who take care of Marijuana grow operations, or involved in the sale
of Drugs, such as Dial-a-Dopers. There are also enumerated "serious
personal injury" offences as defined in s.752, where CSO are no
longer permissible. In other words, the Court must impose "Real-Jail"
where it previously was considering a CSO.
Arguments from the "law and order" camp suggest that MMS will deter
criminal conduct (’think twice") and properly punish criminal conduct.
Further that these sentencing schemes are finally the tools needed by
law enforcement (RCMP and other integrated Gang Task Forces) to crack
down "gangs" and criminal organizations. They suggest that
groups like the Independent Soldiers, Hells Angels, UN (United Nations),
Red Scorpions and others would be dismantled or at least seriously affected
by the incarceration of its leaders, or mid-level members.
Others who argue against MMS, suggest
that fewer accused would plead guilty, clogging up the already backlogged
court system. In addition, evidence, they say, suggests that longer
sentences actually increase the change of reoffending, and that the
"throw away the key" system will not afford a safer society.
Also that such MMS will disproportionately affect visible minorities
including Aboriginal Offenders, who are grossly overrepresented in penal
facilities in Canada. That such a scheme may adversely affect substance-abusers,
rather than organized criminals. Further that it would complicate and
possibly subvert the Principles of Sentencing founds in the Criminal
Code, including the Principles of Proportionality and individualization,
and remove the judicial discretion that Judges require to carve a proper
sentence. Finally, that the costs associated with imprisoning people
is a burden to taxpayers, and the system.
Canadian Sentencing Principles:
Under the CDSA, it states the fundamental
purpose for any CDSA conviction is to contribute to the respect for
the law and 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.
Other aggravating factors to consider
for CDSA prosecutions include, whether a weapon was used, threats of
or actual violence, trafficking near a school, or trafficking to persons
under 18; using young people to service the drug trade; and repeat offenders.
Section 718 of the Criminal Code, enunciates
the following objectives for sentencing: 1) Denunciation; 2) Specific
Deterrence; 3) General Deterrence; 4) Rehabilitating; 5) Providing Reparations
to Victims and Community; 6) promote responsibility in Offenders.
Additional principles, include proportionality,
individualization of sentence. 718.2 also requires the Judge to
take into account factors such as: evidence that the offence was motivated
by bias, prejudice, or hate; position of trust misused; terrorism; abuse
of a child; spousal relationship; acts done for a criminal organization
(ie. Gangs); aboriginal background; concurrent and consecutive sentences;
least restrictive means, etc.
In Canada, there are significant reductions
in the "actual jail time" one gets for offences.
For example, under s.119-121 of the
Corrections and Conditional Release Act, most federal prisoners
are eligible for Parole after serving either 1/3rd of the
sentence, or 7 years, whichever is less.
In addition, under s.127 of the Corrections
and Conditional Release Act, after serving 2/3rds of one’s sentence,
most federal prisoners are entitled to be released from the penitentiary
and serve the last 1/3rd of the sentence in the Community.
This is why sometimes one hears of a person getting a 9 year sentence,
but is out after serving just 3 years, or even less if the person was
given "double-credit" for "dead-time," or pre-trial detention.
Statutory Scheme & Offences
US FEDERAL SYSTEM:
Offences: The offences remain substantially the same as the ones we
mentioned in Canada, with minor differences in wording. The real
significance of the Offence, is the Value (or Points) attached to the
Offence. For example section 2D.1.1, describes Offences Involving
the Unlawful Manufacturing, Importation/Exportation, Trafficking (including
Possession with Intent to Commit); Attempt or Conspiracy of Drugs.
The Drug Quantity Table, will describe
how many points depending on the quantity of drugs involved. For
example, let’s say Charlie "Hockey Bag" Canuck, is convicted in
the US of having "at least 15 KG but less than 50 KG of cocaine"
He would have a BASE OFFENCE LEVEL OF 34 Points. Assuming no criminal
history, this still gets him into the 151-188 Months Range on the Sentencing
Grid (12.5-15.5 years).
Sentencing: This is where the
difference really exists. Complex and controversial.
The US Sentencing Commission promulgates and distributes to all federal
courts guidelines and policy statements regarding factors for sentencing.
Although they were "Mandatory" guidelines prior to 2005, and recently
became only "guidelines" after court challenges in U.S. v. Booker
and Blakely v. Washington, they are still highly relevant. This includes
what is basically a chart for determinative sentencing, with an Axis
for Offence Level (1-43) with Corresponding Zones A-D -on one side,
and an Axis for Criminal History Points on the other (0-13 or more).
The majority of federal sentencing
statutes are set forth it Title 18 of the United States Code. The main
provision is Title 18, U.S.C.3553. That section sets forth aggravating
and mitigating circumstances for the Judge to Consider.
Defence lawyers, Judges, and prosecutors spend a lot of time figuring
out what the proper Grid Calculation is, and then adding or deleting
points, for various aggravating or mitigating circumstances, and then
argue within that range for the sentence. One of the key advantages
of this system is adherence to the principle of sentencing that similar
offenders with similar backgrounds ought to be treated similarly.
In our example, of Charlie, if he possessed a dangerous weapon, add
2 points. Let’s say he used an aircraft to import the drugs,
add 2 more points. Let’s say his friend Barry Buddy, came along
for the ride, but was a minimal participant, Buddy’s level would be
decrease by 2-3 points. See 3B1.2 Mitigation Role.
So now Charlie is facing 34 (base level), plus 4 points for the aggravating
circumstances for a total of 38 points. His range would now be
235 -293 (19.5-24.5 years). This makes sense real quick to people
facing those kind of lengthy sentences.
There are very rare exceptions for getting under the enumerated range.
Two ways are the 5C1.2 "Safety Valve"
Cooperation Section and 5K1.1 "Substantial Assistance to Authorities".
This is really the darling of the Sentencing Provisions. It allows
for the Defendants to "roll" and provide "all information and
evidence the defendant has concerning the offense or offenses that were
part of the same course of conduct or of a common scheme or plan."
5K1.1 allows for a downward departure on the grid by the Court, for
information provided, in consideration of the timeliness of the assistance
(if you’re gonna roll, better to be the first to do so), nature
and extent of the assistance, completeness significance, truthfulness,
and reliability of the information.
This can allow for one to get out of the mandatory minimum sentence.
Some look at this section as "ratting" on their fellow criminal
associates, whilst others consider it when facing 35-45 years in jail,
as "looking out for #1". Perhaps this is why Rouche’s father,
commented recently to the Province Newspaoer, "You gotta be proud
of him, he never rolled over..they couldn’t break him..if the rest
of the world had his balls, there wouldn’t be any problem."
The US Parole system is unlike the Canadian system, with what some call
touchy-feely, 1/3 day parole, and 2/3 statutory release.
Under the US Federal System, there is Calculation Table (Surprise!)
for Good Time Credit. The Bureau Of Prisons and US Sentencing
Guidelines Commission have the Offender serve at least 85% of the Sentence.
So a 30 year sentence, means at least 25.5 years!
The Canadian Sentencing Regime had no mandatory
minimum sentences (MMS) for Drug Offences up to 2009; whereas the US
has had MMS for some time. Canada is now embarking upon an MMS
regime with the introduction of Bill C-15.
Although perhaps not as "tough" as the US system, there is a clear
trend from Parliament that MMS will be our next experiment in Canadian
Criminal Drug Law Sentencing.
At the time the above article was published on this website:Dil Gosal practices primarily in Criminal Law and ICBC Personal Injury.
He is licensed in BC, Washington State, and US Federal District Court.
His office is in Surrey, BC, and his website is
Dilraj (Dil) Gosal, BA JD LLM
Criminal Defense & Personal Injury Lawyer
- Aggravated assault
- Attempted murder & Murder charges
- Motor vehicle / car accident personal injuries
- I.C.B.C. insurance claims disputes
Author: Dil Gosal, BA, J.D., LL.M., Attorney At Law, Washington State, USA - Barrister Solicitor, B.C. Metro-Vancouver, Canada
Gosal has a undergraduate Bachelor of Arts degree from the University of B.C., a Juris Doctor degree (J.D.) from Gonzaga Univeristy Law School, in Washington State, and a LL.M. graduate law degrees from New York State law school.
"The LL.M. (Master of Laws) is an internationally recognized postgraduate law degree. It is usually obtained by completing a one-year full-time program. The LL.M. is a higher academic degree, comparable to an MBA in business and management. Law students and professionals frequently pursue the LL.M. to gain expertise in a specialized field of law, for example in the area of tax law or international law. Many law firms prefer job candidates with an LL.M. degree because it indicates that a lawyer has acquired advanced, specialized legal training, and is qualified to work in a multinational legal environment. [quote fr. www.llm-guide.com/what-is-an-llm 2010.01.09]
Dil Gosal was a cross border lawyer, practising as a barrister & solicitor from his Surrey offices for Metro Vancouver, BC clients/ as well as being a licensed Criminal Defense attorney in Washington State, USA.
Introduction to the US Grand Jury Click here to article originally written for Canadians TV viewers who have little or no understanding of the use of Grand Jury Trials in USA Justice System.