Criminal law is the quintessential benchmark of community values in a society

-The Honourable Judge A.J. Brown

In the decision of R v Maskell (1981),[1] the Alberta Court of Appeal established a 3-year starting point sentence for commercial trafficking in cocaine. Since it’s inception, and particularly in recent years, the interpretation and application of starting point sentences remains one of the “most controversial subjects, both in theory and practical application.”[2] In this entry, the author will explain how it is possible to clarify the proper scope and application of the ‘starting-point’ sentence by considering why, in a moral sense, we punish, and by returning to first principles of sentencing in Canada. Only through doing so, is it possible to apply such sentences in a manner which instils public confidence in the sentencing process in Alberta.

Overview – Purpose and Principles of Sentencing

As the Honourable Judge Brown recently stated: “criminal law is the quintessential benchmark of community values in a society”.[4] In sentencing, perhaps more than any other field of criminal law, these values come into clear focus. As such, as Lamer C.J.C. explains in R. v. M. (C.A.),[5] the “determination of a just and appropriate sentence is a delicate art”.[6] The fundamental purposes of sentencing are to protect society and to enforce, along with crime prevention initiatives, respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions.[7]

A fundamental principle is that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.[8] A sentence should be similar to those imposed on similar offenders for similar offences in similar circumstances.[9] As the ABCA explains in Arcand:[10]

[p]roportionality is based on a simple, yet compelling, premise. The severity of sanction for a crime should reflect the overall degree of moral blameworthiness, that is the seriousness, of the criminal conduct. And that is properly measured by two things: the gravity of the offence and the offender’s degree of responsibility…

The importance of proportionality cannot be overstated. As the SCC confirms in R v Ipeelee,[11] proportionality is a sine qua non of a just sanction.[12] In fact, the ABCA states that proportionality is

the only governing sentencing principle under the [Criminal] Code…[13] no matter what objectives or combination of objectives a sanction is intended to achieve, to be a just sanction, the sentence imposed must comply with the proportionality principle.[14]

Further, as the SCC explains, proportionality is inseparable from the notion of moral blameworthiness.[15] The law is clear that care must be taken that a Court does not tie itself to rigid and inflexible rules in its pursuit of uniformity.[16] As the SCC explains in R v Suter,[17] proportionality dictates that, inevitably, “there will be cases where the particular circumstances of the offence and/or the offender call for a sentence that falls outside of the normal sentencing range”.[18]

As a necessary corollary, proportionality requires that a sentence should also be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender.[19] The relative importance of any mitigating or aggravating factors will then push the sentence up or down the scale of appropriate sentences for similar offences.

In Canada, the sentencing process is an individualized one, and always has been.[20] As the SCC explains in Lacassee:

[t]he determination of a just and appropriate sentence is a highly individualized exercise that goes beyond a purely mathematical calculation. It involves a variety of factors that are difficult to define with precision. This is why it may happen that a sentence that, on its face, falls outside a particular range, and that may never have been imposed in the past for a similar crime, is not demonstrably unfit.[21]

The individualized nature of sentencing is a core tenant of our practice of punishment and reflects important values about our social concepts of punishment, and their normative justifications –  specifically, the tension between individualized sentencing, and ‘tariff-based’ sentencing.

Individualized Sentencing, Tariff Based Sentencing, and Normative Underpinnings

Before considering the specific ‘starting-point sentence’ in Alberta – the Maskall starting-point – it is important to appreciate the nature of ‘starting-point’ sentences and draw a key distinction. As a point of terminology, there are two general approaches to sentencing in Canada.

  1. The first, is known as ‘individualized’ or ‘subjective’ sentencing.
  2. The second, is known as ‘tariff’ or ‘objective’ sentencing.[22]

While in any given case, an element of both is present, each approach to sentencing is based on unique considerations, and distinct normative underpinnings.

Individualized Sentencing

As explained above, ‘individualized’ or ‘subjective’ sentencing is a core tenant of sentencing law in Canadian law. Inherent in this approach, is the notion of ‘moral blameworthiness’. The hallmark of this approach is that it focuses on the individual. The focus is not on the larger social benefits that might be achieved through imposing punishment in an immediate case.

The individualized nature of punishment finds its roots in normative theories about the nature and aims of punishment. Hart’s notion of moral blameworthiness as “the license to punish the offender”,[23] entails that the notion that the state is justified ‘giving the offender what they deserve’. No more, and no less. As Lord Hailsham explains in Reg v Howe,[24] referencing the moral theory of Immanuel Kant, this requires that we “treat humanity, whether in your own person or in the person of another, always at the same time as an end and never simply as a means.”[25]

Tariff Sentencing

Tariff’ or ‘objective’ sentencing also plays an important role in sentencing law in Canada. Tariff sentencing often involves crafting sentences with reference to established ranges, legislative mandatory minimums, or so-called ‘starting-point’ sentences. As the Alberta Court of Appeal notes, tariff sentencing serves important social ends. It ensures uniformity. It avoids unwarranted disparities between sentences for similar crimes which “breed disrespect” for the law.[26]

It also serves general deterrence, and sends an example to the rest of society, and to would-be offenders, that a certain class of offences will be strictly punished. It is also communicative. Strong pronouncements express our collective disapproval, reflect our shared beliefs, and vindicate community values. Therefore, as opposed to individualized sentencing, which focuses on the individual, tariff sentencing finds it’s justification in larger societal ends. The underlying normative theory is consequentialist, or utilitarian – the ‘ends justify the means’.

A Fine Balance

Given an appreciation of the difference between individualized and tariff sentencing, their underlying concepts of punishment, and normative justifications, the tension between the two becomes clear. As the SCC explains in Lacasse, tariff sentencing is “theoretically the opposite of sentence individualization”.[27] Both are an expression of proportionality. But as the SCC explains in Ipeelee, a just sanction is one that “that reflects both perspectives on proportionality”.[28]

However, while the larger social ends of tariff sentencing, such as starting-point sentences, are worthy, it is critical that one “does not elevate one at the expense of the other”.[29] There is a fine balance. In any cases, when there is a shift from individualized sentencing, to ‘tariff-based’ sentencing, there are significant implications. The shift of focus turns from the moral blameworthiness of an individual, to larger social aims. In at least some respect, an individual becomes a means to some end.

As such, in any given case, it is critical to carefully identify the societal ends sought, their connection to a particular case and weigh them against the rights of the individual who stands to face judgment. The need to impose a sentence that reflects the moral culpability of an offender, must not be sacrificed on the “altar of deterrence”[30] absent compelling reasons to do so.

This delicate balance becomes clear in the specific context of starting-point sentences.

Starting-point Sentences Generally

Starting-point sentences are a form of ‘tariff-based’ sentences. A starting-point sentence is an “appellate court mandated starting-points to be followed by lower court judges when issuing sentences for specific sub-categories of offences (as determined by the court rather than the legislature)”.[31]

Starting-point sentences are generally justified based on the three aims explored above: uniformity, general deterrence, and social denunciation. On this basis, the ABCA has held that many offences have been held by their very nature to require starting-point sentences. For example, for offences such as sexual assault,[32] armed robbery,[33] trafficking in heroin,[34] and trafficking in cocaine.[35] The categories of starting-point sentences are not closed, and there is a capacity for “evolution as circumstances change” and “[s]ince their existence and rationale are public, they are subject to scrutiny and debate”.[36]

The Process for Applying Starting-point Sentences

The ABCA has established a three stage-process to categorizing start-point sentence: (a) categorizing a crime into ‘typical categories’, (b) fixing a starting-point for each typical case and (c) refining the sentence to the specific circumstances of the actual case.[37]

The most contention stage of analysis, particular in recent years, is (a) categorization. This is the focus here. However, the third step of analysis (c) is also critical. It requires a court to refine a sentence to “very specific circumstances of the actual case”.[38] This is a very important stage of analysis. As the Alberta Court of Appeal has cautioned, maximum or “standard” penalties are the exclusive prerogative of Parliament,[39] and unlike statutory minimum ‘penalties’, “[s]tarting point sentencing does not fetter judicial discretion but ensures that its exercise is based on proper factors”.[40]

Categorization into Typical Cases

As the ABCA explains, in the context of starting-points, categorization is ‘integral’.[41] In practical terms, categorization is a threshold issue that determines whether, in a particular case, the starting-point sentence applies at all. For this reason, it is critical stage of analysis.

Bases for Categorization

For starting-point sentences, a court categorizes a specific class of criminal conduct into typical cases. Categories aim to describe, in clear terms, the class of conduct which a starting-point sentence is intended to capture. Categories are established according to three historical characteristics: (1) conduct, (2) circumstances; and (3) consequences.[42] Courts use “all three bases, whether individually or in combination, for classification purposes”.[43] As the ABCA explains in in R v Sandercock, the goal at the categorization phase, is to “state typical categories with precision”.[44]

Principled Development of Categories

A review of the case-law related to categorization, shows that it is a highly principled process. Generally, the principles set out above determine how categories are carved out of broad ranges of conduct. The three principles that form the justification for starting-point sentences are generally reflected in categorization: uniformity, general deterrence, and community values.

It is important to appreciate that, particularly for drug trafficking, moral culpability falls on a spectrum. This spectrum should inform categorization for offences related to trafficking in cocaine and inform how the category is interpreted and applied. Particularly given the broad interpretation of ‘trafficking’ under the CDSA, it has been observed that the term trafficking “encompasses such a wide range of conduct”:[45]

On the one hand, the term evokes an emotional response which conjures up an image of nefarious characters preying upon innocent children in schoolyards. At the other end of the scale, it is a very technical term for purposes of the criminal law which appears to include the mere act of passing a prohibited substance to another person.[46]

On this basis, it follows that the notion of moral culpability, and by extension, categorization of classes of typical cases should be informed by Charter values. Section 12 of the Charter requires that no person be “subjected to any cruel and unusual treatment or punishment”. It embodies and entrenches the notion of ‘proportionality’,[47] and reflects the sorts of typical cases which should attract corresponding starting-point categories.

For example, in R v Lloyd,[48] the SCC found a 1-year mandatory minimum sentence for trafficking in narcotics to be unconstitutional.[49] A significant point of focus in Lloyd, was on the broad spectrum of moral culpability that drug trafficking encompasses, and the need to differentiate “a wide array of situations of varying moral blameworthiness”.[50] Along this spectrum the SCC expressly noted a significant spectrum of moral culpability. On the low end, they identify drug addicts, and social traffickers, and a hypothetical involving an individual who shares a small quantity of drugs to a friend without profit.[51] On the upper scale were so-called ‘calculating profiteers’ engaged in the large-scale business of dangerous drugs for profit.[52]

The Significance of Engagement of the Starting-Point

The categorization stage represents a critical juncture in the application of starting-point sentences, both analytically, and normatively.

In a standard case, where there is no ‘starting-point’ sentence, analysis begins at a fundamentally individual level. It lends itself to analysis of a more ‘bottom-up’ nature, focusing on the particular circumstances of the offender, his or her degree of moral culpability, ultimately working upwards through larger social aims. A sentence, in that case, emphasized punishment for the individual and not as an end for some other purpose.

Conversely, where a starting-point is engaged, analysis is more of a ‘top-down’ process. Social aims, such as denunciation and deterrence are a preliminary focus of analysis. The particular class of conduct, if the focal point of analysis, and individualized factors, and moral culpability become secondary considerations. Ultimately, these are taken into account, particularly at the ‘refinement’ stage. It has been expressly stated that, however where such sentences are engaged “personal circumstances [become] secondary to the goals of deterrence and denunciation”.[53]

Further, when a starting-point is engaged, a sentencing judge undertakes a much different analysis. To depart from the starting-point, he or she must explain why identify particular facts that are relevant to the sentence, and reasonable justify derivation.[54] Where a sentence is appealed, an appeal court is required to “assess the fitness of a sentence imposed in light of the relevant starting-point and the reasons offered for the resulting sentence”.[55] While mere departure from a starting-point does not, in itself, represent an error in principle, a “significant degree of departure may do so”.[56]

On this basis, it is submitted that categorization must be understood in relation to the implications of the engagement of a starting-point sentence. Particularly, the displacement of individualized factors. While in some cases this may be appropriate, classification must be undertaking in light of the underlying aims starting-point sentences are meant to serve. As Justice Berger of the ABCA cautions, a rigid approach to broadly categorizing typical cases, absent an appreciation of their underlying purpose “has the effect of detracting from individualized sentencing principles consistently endorsed by the Supreme Court of Canada and deprives sentencing judges of the discretion that Parliament has not yet removed.”[57]

Having introduced the general nature of starting-points, the process of categorization, and explained its significance, it is useful to consider specific starting-point cases for commercial trafficking in cocaine, that are relevant in this case.

Starting-point Sentences for Commercial Cocaine Trafficking

In Alberta, the starting-point sentence for “commercial trafficking in cocaine on something more than a minimal scale” is three years.[58] The origins of the starting-point sentence can be traced to the ABCA’s decision in R v Maskell. In the 37 years since this decision, Maskell has been cited in 165 reported decisions in Alberta, including 61 times by the ABCA.[59] Recently, an application to reconsider the decision, and three-year starting-point, was dismissed in R v Melnyk.[60]

Justification for the Maskell Starting-Point Sentences

As explained above, tariff-based sentences are justified based on key underlying principles, which reflect larger social interests. These include the need for uniformity, general deterrence, and an expression of community disapproval. These considerations are express in Maskell.

In creating the starting-point the Court in Maskell recognized the danger and costs that cocaine visits on society. The starting-point is premised on the principles that cocaine trade is harmful, profits are large, and deterrence paramount. It targets traffickers who are principal actors in the business of the violent, socially destructive, and profitable drug trade. It is meant to create a hostile environment for would be commercial cocaine traffickers in Alberta and to counteract the huge profit incentive with the threat of jail.

Trafficking in narcotics has since been described as “a crime of greed”,[61] and that traffickers are “the scourge of society”.[62] As such, the ABCA has confirmed “[g]eneral deterrence… specific deterrence, must be the overriding factors in the imposition of sentences”.[63] As Justice Moir explains in Maskell:

Cocaine is a very powerful drug. It is a narcotic drug. Its non-medical use can lead to many undesirable results. The trafficking in it is highly undesirable. Trafficking in the drug must be deterred. It is a very expensive drug so that huge profits can be made from its illegal sale. It is our duty to deter people from using it and from trafficking in it. Deterrence is and remains the most important element in the sentencing process. It calls for imprisonment and not for a short, nominal term…[64]

The importance of deterrence in cases such as this must be emphasized. Very large profits can be realized from its illegal sale… It seems to me that the profits from its sale will keep it on the market unless it is dealt with sternly. It is our duty to deter these activities.[65]

What Constitutes Commercial Trafficking on More Than a Minimal Scale?

The 3-year starting-point in Maskell applies to ‘commercial trafficking on more than a minimal scale’. The interpretation of the terms ‘commercial trafficking’ and ‘minimal scale’ are the operative qualifiers. At the classification stage, their interpretation ultimately determines whether or not the starting-point applies in a particular case. Uncertainty in respect to these terms lead to an application, in Melnyk, wherein the ABCA was asked to reconsider the starting-point in Maskell.[66] In declining, as the ABCA notes:

the indicia of commercial trafficking on more than a minimal scale can be adequately developed through the case law and is not something that could prudently be defined in a new starting-point decision.[67]

On this basis, it bears note that there has been guidance in the literature. Moreover, it is submitted that building on decisions in this area, with reference to the principles underlying the starting-point, it is possible to ascertain the meaning of these terms and understand why they were not meant to capture.

The concept of ‘commercial trafficking’ has been heavily developed in the case-law, outside of the realm of starting-point sentences. Generally, the commercial nature of the enterprise is established with reference to a number of factors, including, among other things:

the amount and type of drug involved, the sophistication and profitability of the enterprise, the length of time trafficking was carried on before apprehension, and the individual’s role in the organization. In large-scale trafficking cases the courts often embark upon an analysis of the hierarchy of the criminal organization, to determine the level of the particular accused.[68]

This also reflects factors such as those contemplated by the SCC in Lloyd which distinguishes profit motivated ‘commercial enterprises’ from isolated instances of social trafficking, with little, or no aim for profit.[69] In the context of the starting-point in Alberta, the notion of commercial trafficking was informed by reference to the evil it sought to avert – illicit substances sold for ‘huge profits’ within ‘markets’. For example, in Maskell, the requirement of commercial trafficking was satisfied by the fact that the offender was found in possession of more than one drug, a significant amount of cash ($1,790.00) and scales.[70]

Beyond this, what constitutes ‘commercial trafficking’ on ‘more than a minimal scale’ appears to have been defined in Maskell, by exclusion. As the ABCA notes in Getty,

Moir, J.A. did not define what he meant by minimal scale in Maskell, except to say that Maskell was not a case of “technical or social trafficking” or “an isolated sale”. From this it can be said that these are examples of what is not commercial trafficking on more than a minimal scale; but they are not exhaustive. The issue must be decided by analysis of Maskell and other cases in this court and comparison of these with the facts in this case.[71]

In other words, Maskell implies that what constitutes ‘commercial trafficking’ is subject to a number of exceptions. It does not include cases of: (a) technical trafficking, or (b) social trafficking. Trafficking will not be ‘commercial’ if it falls under one of these categories, and therefore the starting-point does not apply. Further, even where trafficking is commercial, it will not attract the starting-point where (c) it is trafficking on a minimal scale. Each exception warrants consideration.[72]

The overarching notion of social and technical traffickers, or those involved in isolated sales or trafficking on a minimal scale is that they do not form any part of the activities of production, transportation or distribution of drugs. Their degree of moral culpability is low, and principle aims underlying the starting-point do not appear to apply to them in any meaning way.

Exception 1 – Technical Trafficking

The concept of ‘technical trafficking’ has been considered in a number of decisions. Technical trafficking has been described as “a minor isolated transfer of a small quantity by one user to another” or a “minor distribution between users”, which, while “technically trafficking… is not trafficking in any real or substantive sense”.[73] In some cases, “technical trafficking” is “trafficking which may occur simply out of the fact of a person’s abuse of an illegal substance”.[74] the ABCA has recently reference ‘technical trafficking’ as including “sharing drugs at a party or transporting drugs across a room at the request of a friend or acquaintance”.[75]

In R v Shenfield,[76] technical trafficking was found where an offender purchased $60.00 worth of cocaine at the request of the police. He then walked it across the street “before giving it to the people who asked for it, who paid for it, who are the principal actors in this purchase and who orchestrated the event”.[77] On similar facts, in R v Bedard,[78] an offender was found to be “technically guilty of trafficking” but “not the typical ‘pusher’… Convicting and sentencing persons of his type, by these methods, is not going to do very much to lessen the traffic in drugs.”[79]

Exception 2 – Social Trafficking

Social trafficking has been defined as a situation where an offender “shares the drug without any compensation”.[80] The SCC contemplated the notion of a ‘social trafficker’ in Lloyd, in discussing the extremely diminished moral culpability of an individual who shares a small quantity of drugs with a friend, with no financial renumeration.[81]

Four relevant decisions of the Alberta Court of Appeal have considered what constitutes ‘social trafficking’. Chief Justice Fraser of the ABCA briefly discussed what constitutes ‘social trafficking’ in R v Salame (1999).[82] She found that the transaction in question in that case did not constitute social trafficking. However, it appears that here finding turned almost exclusively on the fact that the ultimate motive for the transaction was “financial advantage”.[83]

In R v Bowen, (2007)[84] the accused sold one (1) gram of cocaine to an undercover officer for $100. The sentencing judge found that “the commercial nature of the offence was at a fairly low level”. On appeal, the ABCA varied the sentence from eighteen months imprisonment, to a Conditional Sentence Order (CSO) of the same length. While not express, it seems implicit that the starting-point did not apply.

In R v Marshall, (2012)[85] the accused was found with nine ounces of cocaine (252 grams) individually packaged, with an estimated street value of $24,000.[86] the ABCA found commercial trafficking. In that case, the Alberta Court of Appeal mentioned, in passing, that the mere absence of financial gain is not sufficient to indicate that trafficking is ‘social’.

In R v Legerton (2015),[87] the majority of the ABCA upheld a twelve-month sentence imposed by the trial judge who applied the Maskell starting-point. The accused sold 0.8 grams of crack cocaine for $100, as part of a dial-a-dope operation.[88] the ABCA upheld the trial judge’s finding that there was ‘commercial trafficking’ but stated that “I cannot endorse the proposition that dial-a-dope operations necessarily engage the… starting-point regardless of the quantity”. [89]

In R v Giroux (2018),[90] the accused was arrested after police stopped the car in which she was a passenger. Ms. Giroux was found to have three (3) ounces of cocaine—with a street value of about $8,400—in her purse.[91] Also found in the vehicle was 10 ounces of marijuana, four cellphones, and $490 in cash. The trial judge had noted that her actions were not motivated by profit or greed.[92] The Alberta Court of Appeal found that the starting-point was engaged, and that a sentence of 9 months was appropriate. As in Marshall, the majority of the Court found that the “lack of financial incentive” does not excuse trafficking from being commercial.[93] the ABCA also noted that “those who store or courier large quantities of hard drugs for reasons other than personal financial gain must be considered to know that they will ultimately be distributed for profit by someone.”[94]

Exception 3 – Minimal Scale

In order to trigger the starting-point, it is not only necessary that there be ‘commercial trafficking’. Trafficking must be ‘on more than a minimal scale’. Both are necessary conditions. Therefore, ‘minimal scale’ might properly be framed as an exception to the 3-year starting-point. The notion of trafficking on a ‘minimal scale’ appears to capture a class of traffickers that sell drugs (perhaps on multiple occasions) but not on a significant scale.

In R v Phun,[95] the ABCA referred to R v Dochniak,[96] as an example of trafficking at a minimal scale. In Dochaniak, the offender was a ‘middle person’ who made no profit from the sale of $50 worth of heroin.[97] The starting-point was not engaged. She was sentenced to ninety days, to be served intermittently.

In R v Jaber,[98] the ABCAvaried the sentence of eighteen months imprisonment to a two years less one day CSO. The accused sold 0.8 grams of crack cocaine to an undercover officer for $80 and was found in possession of $1,230. the ABCA held that “the only evidence was that the trafficking here was on a minimal scale” and that the Maskell starting-point did not apply.[99]

To summarize, sentencing is an individualized process. Starting-point sentences are a form of tariff-based sentencing, that must be interpreted in a principled manner, tailored to the ends that they are crafted to serve. They should not be applied broadly, or rigidly, so as to undermine the importance of individualized sentencing. The 3-year starting-point sentence for commercial trafficking in cocaine will not be engaged in every case. Specifically, in cases of ‘social trafficking’ or ‘trafficking on a minimal scale’ the starting-point category should not be engaged.

Decisions in Alberta

It is instructive to consider certain decisions in Alberta, where it was found that the starting point was not engaged. In these cases, it becomes clear that the basis for declining to apply the starting point, or significantly departing from it, were that the evils against which such a starting point sought to combat, were not engaged. In other words, these are the sorts of cases where the conduct in question was not meant to attract a starting point sentence, and were not appropriate cases where individualized factors should yield to larger social ends.

For example, in R v Idris, (2008)[102] where a 31-year old individual was found to have possessed 6 pills of ecstasy for the purpose of trafficking. Noting that the offender was relatively young, with no previous criminal record, and that the conduct was an out-of-character one-time offense, the Court awarded a conditional discharge, alongside 30 months of probation.

In R v Yanke, (2014)[103] where a woman was found to have possessed 5 pills of oxycodone for the purpose of trafficking. The Court held that a 90-day sentence was the least restrictive penalty available and that some degree of leniency was appropriate in the circumstances.

In R v De Jong, (2016)[104] an offender, 18 years at the time, was apprehended with multiple baggies of cocaine, which he attempted to swallow. Noting individualized factors, such as mental health issues, and significant steps taken towards rehabilitation, the court similarly imposed a 90-day intermittent sentence, alongside 2 years of probation.

In R v Brown, (2017) [105] an individual of 26 years of age undertook two small sales of cocaine and methamphetamine of a street value of $120. He had a lengthy, but unrelated criminal record. Citing numerous exceptional circumstances, including the offender’s new role as a father, the court imposes a 90-day intermittent sentence, alongside 2 years of probation.

In R v Bernhart,[106] (2018), the accused was engaged in a ‘dial-a-dope’ operation. He was alleged to be a ‘runner’ for the operation, and arranged, with undercover police officers, for the purchase of $200.00 of cocaine. He was 20 years of age at the time of the offence and sold to support his addiction. He had made positive changes in his life and was on a good path. He was sentenced to 90 days’ intermittent imprisonment and to 1 year of probation.

In R v Godfrey (2018),[107] two accused made five sales of cocaine, on four different dates, to undercover police officers. The amounts were relatively small and were of the nature of a ‘dial-a-dope’ operation.[108] Judge Brown found that 3-year starting-point in Maskell was engaged. Notwithstanding, she imposed a sentence of 90 days, intermittent, with a 30- month period of probation for both individuals. In noting that the sentences were “an exceptional reduction from the starting-point guideline”, she nevertheless found the sentence to be fit, given their youth, and the significant steps they had taken towards rehabilitation.[109]

Closing Remarks

Drug trafficking is a serious problem in Alberta. Those who seek financial gain from the drug trade, profit off the weak and vulnerable. Drug trafficking wreaks havoc on communities. It destroys communities and families. There is no question that Court must continue to take a strong stance in sentencing those convicted of trafficking drugs. However, sentencing remains an individualized process. It is premised on the particular circumstances of an individual who comes before the court, and there are significant variations in the degrees of moral culpability for such persons. In any given case, finding that a starting-point sentence is engaged, absent an appreciation of the normative justifications for such a sentence, risks sacrificing an individual at the altar of deterrence, absence a compelling moral justification for doing so.

In any given case, theoretical questions about the normative basis of our punishment, find their practical application in a courtroom. Before the court, stands an individual. He or she has been convicted of trafficking an illicit substance. Given this approach, in the context of starting-point sentences, both in their interpretation and application, the most important question is this – in what sorts of cases, the individualized ends of sentencing must yield to useful social ends? When should the sentencing inquiry shift focus from the moral culpability of an individual offender, and punish an individual in a manner which makes that individual a means to the ends of some useful social aim?

To appreciate the sorts of cases in which these sentences ought to apply, it is necessary to reject a rigid and antiquated conception of the law as a ‘system of rules’. It is critical to appreciate that legal rules are an expression of underlying “legal standards”, “organising principles”, and “standards of justice” from which specific doctrines are derived.[3] These principles are, at bottom, grounded in competing normative justifications for punishment. As Harvard Professor Mike Materni explains, it is within the purview of decision makers, at the judiciary level, “who make actual, concrete decisions about sentencing practices”,[100] to clarify such concepts of punishment, and their normative justifications. This is necessary to ensure transparency as to the justifications for deprivations of liberty, and to maintain a criminal justice system “that resonates with the very people… for whom it was created.”[101] To this end, in future cases, as Alberta Courts work through these issues, a measure of clarity can be derived through carefully considering the underlying aims of punishment, not only in the context of starting-point sentences, but in any case where it is called to balance similar considerations in passing a fit sentence.


[1] 1981 ABCA 50 [Maskell].

[2] R v Arcand, 2010 ABCA 363.

[3] Bhasin v. Hrynew, 2014 SCC 71 at para 63. [.

[4] R v Godfrey, 2018 ABPC 45 [Godfrey].

[5] (1996), 105 CCC (3d) 327 (SCC) .

[6] Ibid at at 374-75.

[7] Criminal Code, R.S.C. 1985, c. C-46 [Criminal Code] s. 718.

[8] Criminal Code, s. 718.1; R v Solowan, 2008 SCC 62.

[9] Criminal Code, s. 718.2(b).

[10] R v Arcand, 2010 ABCA 363 at para 48.

[11] 2012 SCC 13 [Ipeelee] .

[12] Ibid at para 37.

[13] Arcand, supra, at para 47.

[14] Ipeelee, supra at para 65.

[15] Ibid at para 37.

[16] R v Grady (1971), 1971 CarswellNS 125 (NS CA)

[17] 2018 SCC 34 [Sutter].

[18] Ibid at para 4.

[19] Criminal Code, s 718.2(a).

[20] R v Hall (2013), 2013 ABQB 418 .

[21] R v Lacasse, 2015 SCC 64 at para 58.

[22] Thomas, Principles of Sentencing, 2nd ed. (Camridge: Ashgate, 1979) .

[23] H.L.A. Hart, “Punishment and Responsibility” (1970) Philosophy 45 (172):162-162 .

[24] [1987] AC 417 (HL) at pp 429-31 .

[25] Immanuel Kant, Groundwork of the Metaphysics of Morals, ed and translated by Mary Gregor (Cambridge, UK:  Cambridge University Press, 1997) at 37-41..

[26] Arcand, supra at paras 65, 70.

[27] Lacasse, supra at para 57.

[28] Ipeelee, supra at para 37.

[29] Ipeelee, supra at para 37.

[30] S v Mako (ECJ 2004/020) [2004] ZAECHC 26 (South Africa: High Courts – Eastern Cape) .

[31] Jonathan Rudin, “Eyes Wide Shut: The Alberta Court of Appeal’s Decision in R v Arcand and Aboriginal Offenders”, (2011) 48 Alta. L. Rev. 987 at 988.

[32] R v Sandercock, 1985 ABCA 218. (starting-point for sentencing for major sexual assault being three years).

[33] R v Johnas (1982), 1982 ABCA 331  (starting-point for sentencing for unsophisticated armed robbery of unprotected commercial establishment, in absence of physical harm to victim, and with modest or no success, being three years).

[34] R v Phun, 1997 ABCA 344 .

[35] R v Getty (1990), 1990 ABCA 51 . (starting-point for sentencing for offences of trafficking in cocaine being three years’ incarceration, in case of commercial operation of more than minimal scale). the ABCA has also endorsed a starting-point of 4 1/2 years for what is described as wholesale commercial trafficking” in cocaine. See R v Chung (1999), 232 AR 193 (Alta CA) .

[36] Arcand, supra at para 107.

[37] Arcand, supra at paras 104-105.

[38] R v Sandercock, supra at para 7.

[39] R v Jefferson (2008), 2008 ABCA 365 .

[40] Ibid at para 104.

[41] Arcand, supra at para 93.

[42] Ibid at para 94.

[43] Ibid at para 94.

[44] Sandercock, supra at para 7. See also R v Tallman, 1989 ABCA 47 .

[45] North York (City) v CUPE, Local 94 (1994), [1994] LVI 2646-1, 1994 CarswellOnt 1309 [NY]   at para 34.

[46] Ibid at para 34.

[47] R v Nur, 2015 SCC 15 .

[48] 2016 SCC 13 [Lloyd] .

[49] That section provides a minimum sentence of one year of imprisonment for trafficking or possession for the purpose of trafficking in a Schedule I or II drug, where the offender has been convicted of any drug offence (except possession) within the previous 10 years.

[50] Lloyd, supra at para 49.

[51] Ibid.

[52] Ibid at para 32.

[53] R v McIntyre, 2012 SKCA 111 at para 36.

[54] Arcand, supra at para 106.

[55] Ibid at para 116 (emphasis added).

[56] Ibid at para 106.

[57] Legerton, supra at para 6 (emphasis added).

[58] Maskell, supra.

[59] Reports generated using KeyCite Canada, Citing References: R v Maskill, 1981 ABCA 50, 1981 CarswellAlta 337 (search performed July 27, 2018).

[60] 2014 ABCA 313.

[61] R v Thompson (1989), 98 AR 348 (Alta CA) .

[62] R v Andrews, [1996] MJ No 127 (Man CA) .

[63] Ibid at para 35.

[64] Maskell, supra at para 16.

[65] Ibid at para 18 (emphasis added).

[66] The application was brought in part on the basis that commercial operation on more than a minimal scale is not a sufficiently clear category. The accused pointed to a group of cases involving a similar quantity of cocaine, some of which invoked the starting-point while others did not.

[67] Melnyk, supra at para 6 (emphasis added).

[68] See generally Canadian Encyclopedic Digest, Narcotic Control VIII — Sentencing  4 — Trafficking (a) — General at §287  and authorities therein.

[69] Lloyd, supra.

[70] Maskell, supra, at at para 17.

[71] Ghetty, supra at para 34.

[72] Note that the other exception: ‘isolated sales’ does not apply in this case, and will not be considered.

[73] R v McLay, 1976 CarswellNS 112, 17 NSR (2d) 135 (NSCA)  at para 25.

[74] NY, supra at para 34.

[75] R v Giroux, 2018 ABCA 56  at para 14.

[76] 2008 ABPC 47.

[77] Ibid.

[78] 1976 CarswellQue 182, 1 WCB 47 (QB CA) .

[79] Ibid at para 7.

[80] R v Sauve, 2017 ABPC 19  at para 33.

[81] Lloyd, supra at para 89.

[82] 1999 ABCA 318 [Salame] .

[83] Ibid at para 3.

[84] 2007 ABCA 40.

[85] 2012 ABCA 160.

[86] Ibid at para 1. It was organized into baggies, contained in a larger bag, and locked inside a small safe located within a duffel bag. The police also found some cash, a cell phone, further baggies and a scale.

[87] Legerton, 2015 ABCA 79

[88] Ibid at paras 3-4.

[89] Ibid at para 6 (emphasis added).

[90] Supra.

[91] Ibid at para 3.

[92] Ibid at para 6.

[93] Ibid at para 16 (emphasis added).

[94] Ibid at para 15. The ABCA then considered issues related to ‘willful blindness’ rejecting the argument that being wilfully blind to the quantity of drugs trafficked should be a mitigating factor, or avoid the starting-point being engaged (Ibid at paras 17-21).

[95] Supra.

[96] [1980] AJ No 150 (Alta CA) (a decision that predated Maskell) .

[97] She passed a request for the heroin from an officer to her friend. Her friend left and returned, and the accused passed the officer the drugs.

[98] 2007 ABCA 383.

[99] Ibid at para 7.

[100] Mike C. Materni “Criminal Punishment and the Pursuit of Justice”. 2 Br. J. Am. Leg. Studies 263 (2013).

[101] Ibid at p. 265.

[102] 2008 ABQB 1 (Alta QB) .

[103] 2014 ABPC 88 .

[104] 2016 ABQB 517 .

[105] 2017 ABQB 191 .

[106] 2018 ABPC 118 .

[107] Supra.

[108] Ibid at para 37.

[109] Ibid at paras 1-2.