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 Brothers.

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.

Statutory Scheme & Offences

CANADA

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. 5.(3)(b) CDSA.
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 substances.
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.

PRODUCTION

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 40^th Parliament, which is an Act to Amend the CDSA, completed the 3^rd 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 3^rd 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. 10(2) CDSA.

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.

Canadian Parole

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 1/3^rd 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 1/3^rd 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."

US PAROLE

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!

Summary

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.

Author Notes:

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 www.GosalLaw.com

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]

In 2009 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.

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