by Toronto Criminal Lawyer
What is the worst case scenario for someone accused of drug offences?
One of the most common questions I get asked by people accused of drug offences is, “What is the worst case scenario?” Receiving the maximum penalty is the worst case scenario for someone charged with only one count. But what about people accused of more than one offence?
The worst case scenario depends on the particular circumstances of each case. But the worst case scenario in general is that each count’s sentence is served consecutively or in other words, each sentence is served back-to-back, each after the last. Consecutive sentences can increase a total sentence which can be quite long indeed.
Section 718 of the Criminal Code of Canada gives two guiding principles that a judge must follow when sentencing. They are the totality principle and the proportionality principle.
The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:
- (a) to denounce unlawful conduct;
- (b) to deter the offender and other persons from committing offences;
- (c) to separate offenders from society, where necessary;
- (d) to assist in rehabilitating offenders;
- (e) to provide reparations for harm done to victims or to the community; and
- (f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community.
The Totality Principle
The totality principle means that a sentencing judge must look at the cumulative (total) sentence of consecutive sentences, to make sure the total does not exceed the overall harm done by those types of offences. If the total is greater than the seriousness of the offences, a sentencing judge may have to reduce the final sentence, rather than simply adding up all the sentencing for each count. For example, if a person is charged with shoplifting from 60 different places and receives a sentence of one month for each offence, a sentencing judge would apply to totality principle, after adding them up and seeing that the total is five years, to reduce the sentence because five years for shoplifting would not be just.
The Proportionality Principle
The proportionality principle means that a sentencing judge must look at the offender’s degree of guilt or moral blameworthiness with respect to the crimes committed and the harm done to the victims. If the total sentence is greater than the offender’s blameworthiness, the sentencing judge will reduce the sentence. For example, if a person is charged with trafficking a large amount of various drugs and guns but they were a low level dealer who was paid in drugs to satisfy an addiction, the sentencing judge may reduce the sentence because they were not doing it for money, but to support an addiction.
Application of the Totality and Proportionality Principles
In the recent court case of R. v. Saikaley, 2013 ONSC 2699 Justice Lalonde discussed the totality and proportionality principles of sentencing under section 718 of the Criminal Code of Canada, as it relates to a person described as “a high level dealer.”
The circumstances of the offences were as follows: Mr. Saikailey was found guilty in Ottawa after a trial of many counts relating to conspiracy to traffic kilograms of both cocaine and marijuana. He was the leader of a criminal organization and the head of a conspiracy to distribute narcotics through the operation of a bar. He was also convicted of possession of proceeds of crime in the amount of $133, 000, which was found in a safe in his home, which is not to mention the money at the bar as well as on his person at the time of the arrest. He was also found in possession of a handgun, which was discovered in a raid in the location of where the drugs were stashed and packaged for retail sale. Another loaded handgun was found in Mr. Saikailey’s bedroom. Mr. Saikailey was found guilty of charging criminal rates of interest (greater than 60% per annum), also known as usury or loan sharking. Finally, he was found guilty of extortion for threats he made to an individual who had borrowed money from Mr. Saikailey.
Mr. Saikailey’s personal circumstances were as follows. He was 40 years old. He was twice married. He had two children from his first marriage and a third from his second, current marriage. He had a criminal record dating back to 1986. He was deemed a “repeat offender.” He has had addiction issues and limited employment history.
After the trial, the issue for Justice Lalonde was: what is the appropriate sentence to impose on Mr. Saikailey? Given the multiple counts, this issue became complex. The prosecution was arguing that a total of 29 years was appropriate but because of the totality principle, the total sentence should be in the range of 15 to 18 years, when credit for a restrictive bail (time spent on house arrest prior to sentencing) is taken into account. The defence argues that five years is appropriate because the maximum penalty for many of the offences is five years.
Justice Lalonde used a three step process to determine the appropriate sentence. First, each offence’s sentence was decided. Second, the sentences to be served consecutively, were added up and the totality principle (whether the total sentence exceeds the overall culpability of the offender) was considered. Third, the judge looked at the principle of proportionality (whether the offender’s degree of guilt and moral blameworthiness with respect to the crimes committed and the harm done) was examined in order to determine if the sentence should be adjusted.
In the first part of the analysis, many of the drug offences were either stayed because of the Kienapple principle, which prohibits being convicted of multiple criminal offences arising out of the same act, or imposed concurrently (to be served at the same time). But because the offender was a high level dealer, many of the counts’ sentences were imposed consecutively. In the second part of the analysis, the totality principle did not warrant the total sentence being lowered from 19 years because of the seriousness of the offences. In the third part of the analysis, the proportionality principle did not warrant the sentence being lowered because of Mr. Saikailey’s level of blameworthiness, as he was described in the context of “worst offender, worst offence.”
To conclude, the worst case scenario is that a person is deemed to be a “high level dealer” in a criminal organization of various firearms and drugs, charging criminal interest rates. As a result, the sentences are imposed consecutively and not lowered because of the proportionality or totality principles of sentencing.
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