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More Than a Minimal Scale

  • November 28, 2019
  • Clayton Rice, K.C.

On May 20, 2015, Curt Gittens got into an unmarked police vehicle and sold .64 grams of cocaine for $60 to an undercover officer. He bolted when more officers arrived and tossed two small packages during a brief foot chase. The packages contained another 1.06 grams of cocaine. He was also in possession of the buy money and another $55.

The police had earlier received information from an informant that “Curt” was trafficking cocaine in Edmonton, Alberta. The informant gave the police a cell phone number. The police had searched various data bases and came up with Gittens’ name and date of birth. The undercover officer called the cell number to arrange the deal.

1. Sentence

On January 22, 2019, Gittens pleaded guilty to drug trafficking under s 5(1) of the Controlled Drugs and Substances Act. Although he had a prior conviction for drug trafficking, by the time he pleaded guilty four years after the undercover deal, he had stopped using drugs and there was evidence of an established rehabilitative trend. In Reasons for Judgment reported as R v Gittens, 2019 ABQB 156 Justice Brian Burrows in the Court of Queen’s Bench of Alberta, at Edmonton, sentenced Gittens to 18 months imprisonment.

Justice Burrows held that the guideline sentence of three years imprisonment established by the Alberta Court of Appeal in R v Maskell, 1981 ABCA 50 applied. The prior related conviction, although aggravating, was dated. And there were significant mitigating factors such as the guilty plea. “Mr. Gittens has done much in the nearly 4 years since his offence,” Justice Burrows said at para 39, “to put himself in a position to lead a law abiding life when his sentence ends.”

Gittens appealed.

2. The Maskell Guideline

In Maskell, the appellant was convicted of multiple drug offences including possession of cocaine for the purpose of trafficking. The Alberta Court of Appeal affirmed a sentence of three years imprisonment imposed by the trial judge. Writing for a unanimous panel, Justice Arnold F. Moir did not explicitly describe the three year sentence as a guideline or “starting point” sentence. However, he did emphasize, at para 21, that cases where lesser sentences were imposed were “simply out of line with what has been found to be a fit sentence for such offences and therefore must be disregarded.” In the decades since Maskell was decided, it has come to be expressly regarded as the leading precedent. (See e.g., R v Rahime, 2001 ABCA 203 per curiam, at para 18)

But that is not the end of the analysis.The guideline does not apply to just any case. Justice Moir stated, at para 19, that Maskell was not a case of “social trafficking” nor an “isolated case” and he went on to hold, at para 20, that it “was clearly a commercial operation on something more than a minimal scale.” What, then, is a commercial operation on something more than a minimal scale? The answer to that question was critically important to Gittens. He was from Grenada and not a Canadian citizen. Any sentence of six months imprisonment or more would result in a removal order under the applicable immigration legislation without a right of appeal. (See: Faster Removal of Foreign Criminals Act, SC 2013, c 16, s 24)

Justice Burrows concluded, at para 21, that Gittens’ drug operation was both commercial and beyond minimal. The informant information “suggest[ed] strongly that the transaction with the undercover officer was not a one-time event.” The undercover transaction and the possession of the additional 1.06 grams were typical of dial-a-dope trafficking. There was no suggestion that Gittens’ purpose was “anything other than profit.” The Maskell guideline of three years imprisonment thus applied.

3. Appeal

On October 28, 2019, a three member panel of the Alberta Court of Appeal comprised of Justices Jack Watson, Patricia Rowbotham and Dawn Pentelechuk released the Memorandum of Judgment reported as R v Gittens, 2019 ABCA 406. The panel unanimously concluded, at para 28, that Justice Burrows “did not commit palpable and overriding error” and the 18 month sentence was affirmed. However, the panel then went on to comment, predominantly in obiter dicta, on the approach that “might be used” by sentencing judges in deciding whether a specific case falls within the “minimal scale” category.

It is at that point where the reasons ricocheted into meandering speculation about why there is a dearth of reported cases fitting the “minimal scale” category. Without supporting evidence in the record, and without citing other sources such as scholarly studies, the panel suggested, at paras 30-4, that the “minimal scale” category “elude[s] the range of statistical calculation” because of “the industrial-scale practice experience of joint submissions” and the “social reality” of drug treatment court. All of that, of course, was asserted without an evidentiary foundation.

The panel did, however, go on at paras 35-9 to examine some of the precedents that “illuminate” the borderline between the Maskell guideline and the “minimal scale” category. Here are three take-aways:

  • [T]he minimal scale cases would likely be persons who transfer drugs in a social context, or are merely involved in one-off opportunistic transactions. (para 36)
  • [T]he “minimal scale” element is part of the actus reus and thus is part of the gravity of the offence and degree of responsibility features of s 718.1 of the Criminal Code. Mitigating factors about the offender as a person, or collateral considerations about the offender’s case, do not go to the “minimal scale” topic. They therefore do not oust the starting point. (para 37)
  • [T]he “minimal scale” element has significance, properly understood. And it should not be assumed the significance is minor in the overall scheme of things even if there are not a lot of reported cases on it. But it comes down to what the sentencing judge makes of the evidence. It is also useful to recall that even if the starting point is found to be inapplicable, a stiff prison term is not out of the question. The facts may demand it anyway. (para 39)

The panel concluded, at para 42, that collateral immigration consequences may “influence sentences” but they are “ultimately part of the search for proportionality and are not a vehicle for distorting sentence policy or altering fitness standards.” The panel thus implicitly agreed with Justice Burrows who held, at para 34, that a reduction of Gittens’ sentence to six months less a day in order to preserve his right to appeal the immigration consequences, would be artificial. (See also: R v Pham, 2013 SCC 15; R v Suter, 2018 SCC 34; and, R v Girn, 2019 ONCA 202)

4. Conclusion

I will make two points in conclusion. First, the standard of appellate review respecting palpable and overriding error is a deferential standard. In searching for a ratio decidendi here, it may have been best put at para 41 where the Alberta Court of Appeal said “[t]he reality of this case is that the sentence imposed here is not unfit.” It bears emphasis that this “reality” is only reality because it is consistent with judicial deference to the pointless war on drugs. Second, and this is important to all defence lawyers, rather than set out a rigid test for the “minimal scale” category, the panel correctly left that determination to the discretion of sentencing courts. (See also: On The Wire. Sentencing Dial-A-Dopers In Alberta. September 28, 2018)


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