Cocaine, heroin, fentanyl. Trafficking in these kinds of drugs, or possessing them for that purpose, means jail time in Canada. And a lot of jail time. For thirty-five years the Alberta Court of Appeal has maintained that general deterrence is the most important consideration in sentencing for cocaine offences and has rigidly preserved a “hostile attitude” towards heroin.

The guideline sentence in Alberta for possessing cocaine in a commercial trafficking operation that is more than minimal in scale is three years imprisonment. The guideline sentence for lower level trafficking in heroin is five years incarceration. Sentences may vary depending upon the aggravating and mitigating circumstances but they generally do not depart very far from these guidelines. Incarceration is the invariable result. Sentences markedly increase for mid-level trafficking, large scale commercial enterprises and importing. (See, e.g., R v Maskell, 1981 ABCA 50 per Moir J.A., at paras. 16 and 20; and, R v Phun, 1997 ABCA 344 per McFadyen J.A., at para. 35)

The guideline sentence for cocaine cases in Alberta is higher than the one in Ontario. Possession of smaller amounts for the purpose of trafficking in Ontario will attract sentences between six months and two years less a day. The Ontario Court of Appeal has approved a range of five to eight years in cases involving a half kilogram. Sentences of five to five and one half years are common where there has been a guilty plea or where the offender has no criminal history. (See, e.g., R v Woolcock, [2002] OJ No 4927 per curiam, at paras. 4 and 15; and, R v Bajada (2003), 173 CCC (3d) 255 per Weiler J.A., at para. 13)

Then, this happened.

On November 17, 2013, the Toronto Police Service executed a search warrant at Robert McGill’s residence and seized 306 grams of cocaine valued at approximately $15,000 and $2,930 cash. McGill, an indigenous man, was a mid-level trafficker – above the street level seller – but below the distributor. He was released on bail and two unblemished years passed between the offence date and the sentence hearing. He pleaded guilty to possession for the purpose of trafficking. He had an unrelated record for possession of a firearm in 1995 and aggravated assault in 1997. He was sentenced to four and one half years for the assault.

On March 14, 2016, Justice Melvyn Green of the Ontario Court of Justice released his reasons for sentence in a decision reported as R v McGill, 2016 ONCJ 138 suspending sentence and placing McGill on probation for thirty months. The Crown appealed, asserting that the sentence was manifestly unfit, but recently abandoned the appeal without comment. In an article titled Ottawa drops appeal of ruling that gave no jail time to aboriginal man published in The Globe and Mail edition of August 30, 2016, Sean Fine described Justice Green’s ruling as a “19,000 word cri de coeur against the over-incarceration of indigenous people and a rebellion against a convention in which traffickers are sentenced according to the quantity of the drugs they were selling.”

McGill’s rehabilitation was compelling. Justice Green summarized the non-custodial disposition this way, at para. 114: “This flows from McGill’s evident remorse, an appreciation of both the reality and consequences of his dreadful childhood and adolescence, his self-directed and demonstrable rehabilitation in the years since he was released on bail, his vibrant and salutary reclamation of his cultural identity and his immediate and ongoing investment in family, education and employment. Any concerns for specific deterrence can here readily be met by lengthy community supervision, appropriate probationary terms and the risk of resentencing for any future criminality. The sentencing objectives reflected in the principles of general deterrence and denunciation, to the degree that they are community-directed, are far better met in this case by a sanction that rewards rehabilitation than one that perpetuates incarceration.”

Although Justice Green eloquently reviewed the fundamental principle of proportionality – and the objectives of sentencing with critical emphasis on the doctrine of general deterrence, the policy governing sentencing ranges and, in particular, the considerations uniquely applicable to indigenous people – I am concerned here with a broader question. There are three passages in the reasons that implicate an ethical underpinning.

First, Crown counsel had argued for a sentence of two years less one day imprisonment in a provincial correctional facility. In the context of addressing the conventional sentencing framework, Justice Green said this about Crown counsel’s submission, at para. 59: “On an orthodox range-driven assessment, the nature of the drug and the amount here implicated would ordinarily call for a penitentiary-length disposition, if one towards the lower end. Accordingly, Crown counsel’s suggestion of a maximum reformatory sentence of two years less a day can be properly understood as a effort to factor in, if modestly, considerations applicable to Aboriginal offenders. It is not, however, a result I find fully faithful to the remedial lessons I draw from the wisdom of Gladue and Ipeelee, particularly as they apply to McGill’s personal circumstances and rehabilitative initiative. Nor, in my view, does mechanical adherence to a sanctioned range here comport with the imperative of individualized sentencing.”

Second, it is important to emphasize that a conditional sentence to be served in the community was not available to McGill for this offence because of the former Harper government’s dismantling of targeted aspects of the restorative justice regime. Defence counsel therefore argued for a maximum intermittent sentence of ninety days imprisonment followed by a lengthy period of probation. Justice Green said this about the intermittent sentence proposal, at para. 115: “Defence counsel, in a transparent effort to appease the hungry gods of deterrence and denunciation, has offered a sacrificial 90 days (served intermittently so as not to interrupt McGill’s education or employment) by way of a custodial tribute. While I understand counsel’s motivation, I am of the view that, in the circumstances of this case, 90 days (the outer limit of an intermittent sentence) is not more than rank tokenism. If a carceral sentence is the only proportionate outcome, then the period of imprisonment would have to be of a significantly longer duration than that proposed. On the other hand, if, as I find, a custodial sanction is not required to satisfy the principle of proportionality then a sentence of 90 days is a gratuitous embellishment.”

Third, in the context of discussing sentencing ranges and so-called “starting-point” sentences, at para. 64, Justice Green emphasized that “these judicial constructs must not suffocate the imperative of an individualized approach”. Justice Green returned to that point, at para. 66, in discussing the Supreme Court of Canada’s ruling in R v Lacasse, [2015] 3 SCR 1089 which “speaks powerfully to the importance of two essential case-specific ‘exercises’ that govern the process of sentencing: the ‘highly individualized exercise’ that ultimately determines ‘a just and appropriate sentence’ and the ‘exercise [of judicial] discretion in each case.”  Justice Green went on, at para. 64, to say this about systemic considerations compromising individualized sentencing: “Despite these intermittent reminders of the necessary plasticity of sentencing ranges, their overall, and indeed intended, impact is to restrain the scope of trial courts’ sentencing latitude, thereby risking nuance, rehabilitative effort and individual circumstances for parity and procedural efficiency.”

What Justice Green described as procedural efficiency is a common occurrence in the criminal courts in Alberta. And I expect that much the same happens throughout other jurisdictions in the country. Crown counsel rarely approach sentencing in drug cases on an individualized basis. In a case involving possession of a small amount of cocaine for the purpose of trafficking, the prosecutor will frequently seek a sentence of two years or two and a half years on a guilty plea by an offender with no prior, or unrelated, record. That kind of offer is almost invariably presented as a take-it-or-leave-it joint submission. The vast majority of defence counsel will recommend it to a client because a joint submission would certainly be accepted by the court as falling “within the range” that would then insulate the disposition from hostile appellate intervention.

The objectives of mechanical adherence to the sentence range are thus achieved. The scope of sentencing latitude is restrained and procedural efficiency is maximized. A joint submission in a case determined by route application of a sentence range takes about twenty minutes, or maybe a half hour, of court time. On the other hand, the individualized approach requires much more – a presentence report, written submissions and possibly oral evidence. What could have taken twenty minutes expands to half a day of court time or more. The systemic progress in McGill, itself, is a good example of what can transpire in a contested sentence hearing. There were five court appearances over eight months. And then an amended judgment released on March 16, 2016.

Reliance on general deterrence as the primary sentencing objective in drug cases, and mechanical adherence to fixed sentence ranges, are driven in tandem by appellate court rulings based in a doctrinal adherence to a discredited objective. It is the judicial beneficence to a failed war on drugs. Whether that can remain unchallenged in the role of a defence lawyer is the ethical problem. Justice Green said this about general deterrence, at para. 104:

“The underlying rationale for general deterrence is that harsh sentences imposed on offenders for any given class of offence will have deterrent impact on like-minded others. This proposition has, at best, only tepid empirical support. (See, for but one example, my earlier review of this point in R v Reis, 2012 ONCJ 373, at para. 24.) The Supreme Court’s recent discussions of the principle reflect a similar diffidence and, if somewhat tentatively, a strategic retreat from a fulsome embrace of the doctrine. In R v Proulx [2000 SCC 5], at para. 107, for example, a unanimous Court noted that, ‘[t]he empirical evidence suggests that the deterrent effect of incarceration is uncertain.’ More recently, in R v Nur, [2015] 1 SCR 773, at para. 113, the same Court, citing several empirical studies, affirmed that, ‘[d]oubts concerning the effectiveness of incarceration as a deterrent have been longstanding’. And most recently, in R v Lacasse [2015 SCC 64], at para. 73, the Court endorsed only a selective approach to the doctrine, reasoning that application of the principle was most likely effective with ‘law-abiding people’ rather than those in a hypothetical target audience who have a history of or propensity to anti-social behaviour…”.

There are, of course, cases where suspended sentences were imposed for cocaine and heroin trafficking based in the doctrine of exceptional circumstances. The offences in these cases predominately involved small amounts. The crimes were measured in grams – not ounces. And these cases do not diminish general deterrence as the dominant battle cry. Justice Green described the doctrine of exceptional circumstances as one of “uncertain contours” that almost inevitably requires reconsideration after Lacasse, at paras. 69 and 78:

“In the mainstream sentencing framework, ‘exceptional circumstances’ is the analytical device by which sentences below an approved range find lawful purchase. Functionally, the doctrine serves as a means for preserving the continuing authority of the sanctioned range while allowing for more lenient treatment of ‘exceptional’, ‘rare’, ‘unusual’, or ‘extraordinary’ cases that, through such legal characterizations, can be fairly and sympathetically addressed without jeopardizing the sentencing norm for any given class of cases. ‘Exceptional circumstances’ is a concept of somewhat uncertain contours that, in the end, seems rooted as much in equity as settled legal principle. The elasticity of the doctrine’s boundaries is understandable given the vicissitudes of human experience. Said otherwise, the categories of cognizable ‘exceptional circumstances’ are far from closed.

The majority’s reasons in R v Lacasse almost inevitably invite reconsideration of sentencing courts’ reliance on ‘ranges’ and ‘exceptional circumstances’. Canadian sentencing jurisprudence treats ‘exceptional circumstances’ as rare occurrences, perhaps exceedingly rare. To acknowledge any greater frequency would, of course, risk the exception swallowing the rule or, more paradigmatically correct, the expansion of an approved sentencing range so as [to] accommodate cases that were once treated as exceptions to the rule. Too many exceptions threaten boundary maintenance.” (See e.g., R v Corbett, 2015 ABPC 212 per Gaschler P.C.J., at paras. 14, 36-41; R v Carillo (2015), 322 CCC (3d) 514 (BCCA) per MacKenzie J.A., at paras. 31-3; and, R v Voong (2015), 325 CCC (3d) 267 (BCCA) per Bennett J.A., at paras. 18 and 59)

Parliament has mandated deterrence as one of the objectives of sentencing in s. 718 of the Criminal Code. But nowhere did Parliament say that the doctrine of general deterrence is paramount in any specific class of offence. Parliament did say that the fundamental principle codified in s. 718.1 is proportionality. The ethical question is this – how does a defence lawyer reconcile the negotiation of a sentence based in the discredited doctrine of general deterrence with the duty to act in the best interests of his or her client and the administration of justice? It is an ethical question because it implicates the lawyer’s duty to act with integrity under Rule 1.01(1) of The Law Society of Alberta’s Code of Conduct. And it is an ethical question because it must seek to resolve concepts of crime and justice. As Justice Green stated in McGill, at para. 31: “…[T]here is a risk of injustice in relying on a sentencing model premised on judicially-created fixed ranges of imprisonment from which the sole reprieve is resort to an uncertain doctrine of exceptionality…The fairer and, in the end, more ‘principled approach’ to the law of sentencing – as repeatedly mandated by the Supreme Court – is that of individualized proportionality.”

A challenge has been issued, then, to the defence bar – a challenge broader than the application of individualized sentencing in cases of indigenous offenders. As Justice Green reminds us, at para. 120, Justice Louis LeBel said in R v Ipeelee, [2012] 1 SCR 433, at para. 86, that the principle of restraint in s. 718.2(e) of the Code applies to all offences regardless of their gravity. Any other construction would deprive the principle of much of its remedial power given its focus on reducing over-reliance on incarceration.

The gauntlet has landed.