For over thirty-five years the guideline sentence in Alberta for drug trafficking has been three years imprisonment. Speaking for a unanimous panel of the Alberta Court of Appeal in R v Maskell, 1981 ABCA 50 Justice Arnold F. Moir held, at para 20, that the guideline applies to “a commercial operation on something more than a minimal scale.” (See also: R v Getty, 1990 ABCA 51 per curiam, at para 14)

How, then, has the guideline been applied to street level drug dealers often called dial-a-dopers?

Anyone can place a telephone call to a narcotics vendor and make an arrangement to buy drugs after the purchaser establishes credibility. Drug dealers are wary of undercover police officers. The drugs will be delivered to wherever the purchaser happens to be, usually within fifteen or twenty minutes, in exchange for cash. The overhead is low requiring not much more than a cell phone, a vehicle and a tank of gas. The business model is characterized by accessibility and profitability. But, alleged dial-a-dopers do not always fit the model. (See: R v Franklin, 2001 BCSC 706, per Henderson J, at pp 18-21)

Sentences in Alberta are lower in trafficking cases that are “barely more than minimal” and the Maskell court itself, at para 19, carved out the exceptions of social trafficking and isolated sales from the guideline. In R v Russell, 2016 ABPC 274 Associate Chief Judge Larry Anderson concluded, at para 12, that a sentence of twelve months imprisonment is not uncommon. And the range is lower in other provinces where non-custodial sentences have been imposed. Judge Anderson went on, at para 14, to characterize cases of the middleman as falling at “the lowest end of the spectrum”. Where trafficking is commercial but minimal, sentences of five months and ninety days have been imposed in oxycodone cases. (See e.g., R v Yanke, 2014 ABPC 88 per LeGrandeur ACJ, at paras 34 and 40)

In Russell, the defendant was an addict with no intention to commit a crime until the police gave him an opportunity to get some free crack cocaine by drawing him into a sting operation. Although the court dismissed an entrapment motion, and although the doctrine of random virtue testing did not arise because the virtue testing was not random, Judge Anderson observed, at para 30, that “testing the virtue of an addict by tempting the addict with access to drugs is nothing more than re-victimizing the same victims that our harsh drug laws seek to protect.” Judge Anderson went on to conclude, at para 32, that “[s]tate actions that compromise respect for the rule of law and fair treatment can properly be addressed in sentencing.” A sentence of ninety days was imposed.

Sentences of ninety days imprisonment have also been imposed by other judges of the Provincial Court of Alberta in cases involving sales to undercover officers. In R v M.A.B., 2014 ABPC 293 the Crown conceded that a “severely addicted” defendant was a facilitator rather than directly engaged in selling drugs. Judge Peter Ayotte emphasized, at para 18, that “[n]one of the usual indicia of a commercial transaction were part of the evidence in this case.” And, most recently, in R v Godfrey, 2018 ABPC 45 Judge Anne Brown sentenced two “foot soldiers” to ninety days imprisonment for five sales to an undercover officer totalling 8.7 grams for under $1,000. They were not addicts.

The analysis is made more difficult because drug trafficking is not necessarily characterized as commercial because drugs and money change hands. Determining whether a sale is commercial is fact driven. In R v Webber, 2013 ABCA 189 Justice Carole Conrad, writing for a unanimous panel, at paras 25-7, held that the indicia of commercial trafficking are not definitive. Drug trafficking is not commercial “simply because it involves the exchange of drugs for money.” In dismissing the Crown’s appeal from a sentence of four months imprisonment for selling two oxycodone pills to an undercover officer, Justice Conrad emphasized the “profoundly contextual” nature of the sentencing process. (See also: R v McCulloch, 2011 ABCA 124 per curiam, at para 4)

And that brings me to the point here. In Maskell, Justice Moir held, at para 11, that in “all cases of trafficking in or possession of narcotics for the purpose of trafficking, a gaol sentence is to be imposed except in exceptional circumstances.” Justice Moir did not say in some cases – but in all cases. It is critically important judge made law because that is not what Parliament has said. Cocaine, for example, is included in Schedule I of the Controlled Drugs and Substances Act, SC 1996, c 19 (CDSA). Under s 5 of the CDSA, trafficking in cocaine is an indictable offence punishable by up to life imprisonment. The floor of the range in dial-a-dope cases is therefore a suspended sentence and not presumptive imprisonment that was the subject of the recent ruling of the British Columbia Court of Appeal in R v Diedricksen, 2018 BCCA 336.

On January 20, 2017, two undercover police officers went to Garfinkel’s Night Club in Whistler, B.C., a ski resort north of Vancouver, where one of the officers told Daniel Diedricksen that “she wanted some too” after overhearing Diedricksen on the phone. Diedricksen tapped the side of his nose with his finger and they went outside. He received a text and told her “the guy” would meet them at the taxi loop. A taxi driven by Jacob Brunelle pulled up as they walked to the loop. Diedricksen and the two officers got in. The deal unfolded in the cab.

Diedricksen said he had to go to the bank. Brunelle drove to the bank and parked. Diedricksen made a phone call. While on the phone, he asked Brunelle if he could “do a ball”. Brunelle said he only had “one and a half” on him but could “finish this thing” and then get some more. Diedricksen told the person on the phone that “it would be a bit” and asked Brunelle: “How much for a ball?” Brunelle said “$290” which Diedricksen repeated into the phone. Brunelle said: “It’s all good stuff but some of its great stuff”.

The officer asked Brunelle if she was getting the great stuff. Brunelle told her she was and said: “I’m not the dealer I’m just the runner.” He told her it was “$110”. The officer purchased two flaps containing .89 grams of cocaine for $110 from Brunelle. Diedricksen remained in the front seat. The officer asked about future buys and Brunelle gave her his name and number. Diekricksen also gave her his number. The two officers then got out of the taxi. The taxi left with Brunelle driving and Diedricksen as the front passenger.

The Crown characterized Diedricksen’s involvement as a party to a dial-a-dope operation and sought a sentence of six months. The defendant asserted that he did not profit from the sale and sought a suspended sentence. The sentencing judge ruled that the “exceptional circumstances” factor did not apply and sentenced Diedricksen to six months imprisonment that he described as “the bottom end” of the range. Diedricksen appealed.

On September 10, 2018, a three member panel of the British Columbia Court of Appeal allowed the appeal, set aside the sentence of six months and suspended the passing of sentence for eighteen months. Speaking for the unanimous court, at para 31, Justice John Hunter drew a “distinction between active engagement in the sale of drugs in a dial-a-dope operation on the one hand, and putting someone who wished to buy drugs in contact with a dial-a-dope dealer on the other […].” Although Diedricksen was a party to the offence, he did not sell the cocaine and there was insufficient evidence to support a conclusion that he was “integrally involved in a dial-a-dope operation.”

Where does all of this leave us?

As the Canadian judiciary has been applying the principle of individualized sentencing following the opinion of the Supreme Court of Canada in R v Lacasse, [2015] 3 SCR 1089 Parliament revolutionized drug policy in Canada with the passing of the Cannabis Act, SC 2018, c 16 that will come into effect on October 17, 2018, legalizing the recreational use of marihuana. Yet, in an article titled Canada signs on to U.S.-led renewal of war on drugs published in The Globe and Mail edition of September 24, 2018, Stephanie Nolan reported that Canada was “rebuked […] by a group of world leaders and experts on drug policy for endorsing a Trump-led declaration renewing the ‘war on drugs’ and for passing up a critical moment to provide global leadership on drug regulation.”

Canada’s endorsement of the war on drugs was not missed by the pundits who saw a connection between the backing of the war on drugs and the negotiations over the North American Free Trade Agreement (NAFTA). Former New Zealand prime minister Helen Clark was reported in the same article as saying that “both Canada and Mexico […] likely have signed on reluctantly, held hostage by the North America free-trade agreement talks in Washington, over which a critical deadline looms.”

Mexico. Juarez. The War on Drugs. I will leave you with the concluding scene between the FBI agent played by Emily Blunt and the hit man played by Benicio del Toro in Taylor Sheridan’s screenplay for the 2015 film Sicario directed by Denis Villeneuve:

MACY:                     You are a sicario.

ALEJANDRO:         Policing them does nothing. They must be killed. Wherever they are found. They will make every place they touch Juarez. Now…Now you understand how far we have fallen…Find a little town far from the border. A place where the rule of law still exists. You will spot predators there very easy now…Make a difference you can see everyday. Because you will not survive here. You are not a wolf. This is the land of wolves now.