| Articles by : Dilraj Singh Gosal, BA, LL.M, JD, of D. Gosal & Associates, Law Corp.
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| Click on the above subject to read the Articles written by Dilraj Singh Gosal
Mr. Gosal is a Barrister and US Attorney At Law, practising Criminal, Civil, and Appellate Law. He can be reached at WABCLawyers@aol.com, or www.GosalLaw.com. |
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Recent Articles:
Better to Get Busted in Canada or the USA when Trafficking in Illegal Drugs?
Principles of Sentencing in Canadian and U.S. Federal Criminal Law as applied to Drug Offences
By Dil Gosal, BA, J.D., LL.M., Attorney At Law*
Bacon Brothers, BC Bud, Hells Angels, Red Scorpions, Independent Soldiers, UN Gang: Quite the colourful collage of names we have here on the West Coast…
There has recently been a lot of news coverage regarding the disparity between the length of sentences received in Canada and the USA for people convicted of similar drug offences.
Most recently, in Dec. 2009, Canadian UN Gang Leader Clay Rouche (who was an associate of Duane Harvey Meyer, a murdered associate) was sentenced by the Honorable Judge Robert Lasnik (of the U.S. District Court for Western Washington) to 30 years imprisonment under U.S. Federal Drug Charges for cross-border smuggling of controlled substances and money laundering. Rouche’s apparent successor, Barzan Tilli-Choli was recently arrested for a murder conspiracy-plot to off the Bacon Brothers.
My unscientific quick review of sentencing cases for similar cross-border offences in Canada would suggest it hard to find a sentence of over 10 years, with many in the 4-10 year range.
Why the difference? Let’s look first at the offence regime and then at the Sentencing Principles that Judges are bound to consider when determining a fit and proper sentence.
Statutory Scheme & Offences:
CANADA:
In Canada, Crown attorneys prosecute drugs like marijuana and cocaine, not under the Criminal Code, RSC, but a separate Act of Parliament, called the Controlled Drugs and Substances Act, SC, 1996 (“CDSA”). This replaced the Narcotics Control Act.
As it stands today, there are NO MINIMUM SENTENCES for Drug offences in Canada. However, we are on the eve of that Change (see below), as new Amendments to the CDSA create Mandatory Minimum Sentences (MMS).
There are eight Schedules of various substances listed in the Act. Schedule I contains common drugs such as: Cocaine; Coca; Opium Poppy derivatives (Heroin, Opium, Morphine); and PCP. Schedule III contains common drugs such as: LSD; amphetamines;. Schedule IV contains common substances such as certain steroids. Other schedules contain Hashish and Cannabis.
POSSESSION CHARGES & PUNISHMENT:
4(1) of the CDSA prohibits the Possession of substances found in Schedule I, II, and III.
For Schedule I offences:
If the Crown elects to proceed by way of Indictment (akin to Felony Prosecution), the maximum term of imprisonment is 7 years. (4)(3)(a), CDSA.
If the Crown elects to proceed by Summary Offence (akin to a misdemeanor), then on a first offence, a fine not exceeding $1,000, and/or imprisonment to a maximum of 6 months. Subsequent Summary offences allow for up to $2,000 in fines, and/or up to 1 year in jail. See(4)(3)(b)(i)-(ii).
For Schedule II offences:
If the Crown elects to proceed by Indictment, a term not exceeding 5 years less a day; and upon Summary prosecution, a maximum fine of $1,000 and/or up to 6 months imprisonment. Subsequent Summary offences allow for up to $2,000 in fines, and/or up to 1 year in jail. See(4)(4)(b)(i)-(ii).
There are other Possession punishment schemes within the statute relating to the other schedule drugs. This may include offences such as the recent charges against Dr. Anthony Galea, who allegedly under investigation for provided performance-enhancing drugs such as Actovegin to athletes. He recently treated athletes such as Tiger Wood.
TRAFFICKING IN SUBSTANCE, or POSSESSION FOR PURPOSE OF TRAFFICKING:
Section 5 of the CDSA prohibits trafficking or Possession for the Purposes of Trafficking in Schedule I, II, III or IV drugs or substances.
Section 5(3) provides a maximum penalty of Life Imprisonment for where one trafficks or possession for the purposes of trafficking, Schedule I or II offences. 5.(3)(a) CDSA.
For Trafficking or Possession for the Purposes of Trafficking Schedule III drugs or substances, a maximum of 10 years upon Indictment, or maximum 18 months for Summary Prosecution. 5.(3)(b) CDSA.
Schedule IV convictions allow for a maximum term of 3 years for Indictable offences, and up to 1 year for summary prosecutions. 5.(3)(c) CDSA.
IMPORTING/EXPORTING or POSSESSION FOR PURPOSES OF IMPORTING/EXPORTING:
Section 6 deals with Importing and Exporting of Scheduled drugs and substances.
Importing or Exporting penalty scheme allows for a maximum f Imprisonment for Life for Schedule I and II Drugs; and up to 10 years for Schedule III or IV drugs.
PRODUCTION:
Section 7 of the CDSA deals with the Production of the drugs or substances. For Production, other than cannabis (marijuana), the maximum term is Life Imprisonment. Where the subject-matter is cannabis (marijuana) the maximum term is 7 years.
Judicial Discretion to fashion Sentence.
Case law, or precedent along with other factors (submissions of parties, offender background, etc.) assists the Judges in determining a fit sentence. There is a latitude afforded the Judges.
US-STYLE SENTENCING COMES TO CANADA:
Proposed Amendments, Bill C-15, of the 40th Parliament, which is an Act to Amend the CDSA, completed the 3rd Reading of the Bill in the House of Commons and passed 194 votes to 54 (with Conservatives, and Liberal support), and is currently in the Senate, with the 3rd Reading recently completed on December 14, 2009. As of this writing, the Bill has yet to receive Royal Assent.
The Highlights of the Act, include, provisions for Mandatory Minimum Sentencing (MMS) for serious drug offences, to increase the maximum penalty for cannabis (marijuana) production, and to reschedule certain substances from Schedule III to I (allowing for greater penalties). New sentencing regime is to take place, where with the existence of aggravating factors, depending on the number of marijuana plants trigger MMS. For example 9 months for 5-200 plants, 1 year for 201-500, and 3 years for 500 plus plants.
NO MORE HOUSE-ARREST FOR DRUG CONVICTIONS:
The availability, under s.742 of the Criminal Code, of the Conditional Sentence Order (CSO) – where the offender serves his jail term of less than 2 years in the community, usually with conditions of Supervision, Curfew, house-arrest, electronic home monitoring, will no longer be available for MMS offences. This is a material change for many who take care of Marijuana grow operations, or involved in the sale of Drugs, such as Dial-a-Dopers. There are also enumerated “serious personal injury” offences as defined in s.752, where CSO are no longer permissible. In other words, the Court must impose “Real-Jail” where it previously was considering a CSO.
Arguments from the “law and order” camp suggest that MMS will deter criminal conduct (“think twice”) and properly punish criminal conduct. Further that these sentencing schemes are finally the tools needed by law enforcement (RCMP and other integrated Gang Task Forces) to crack down “gangs” and criminal organizations. They suggest that groups like the Independent Soldiers, Hells Angels, UN (United Nations), Red Scorpions and others would be dismantled or at least seriously affected by the incarceration of its leaders, or mid-level members.
Others who argue against MMS, suggest that fewer accused would plead guilty, clogging up the already backlogged court system. In addition, evidence, they say, suggests that longer sentences actually increase the change of reoffending, and that the “throw away the key” system will not afford a safer society. Also that such MMS will disproportionately affect visible minorities including Aboriginal Offenders, who are grossly overrepresented in penal facilities in Canada. That such a scheme may adversely affect substance-abusers, rather than organized criminals. Further that it would complicate and possibly subvert the Principles of Sentencing founds in the Criminal Code, including the Principles of Proportionality and individualization, and remove the judicial discretion that Judges require to carve a proper sentence. Finally, that the costs associated with imprisoning people is a burden to taxpayers, and the system.
Canadian Sentencing Principles:
Under the CDSA, it states the fundamental purpose for any CDSA conviction is to contribute to the respect for the law and maintenance of a just, peaceful and safe society, while encouraging rehabilitation, and treatment in appropriate circumstances, of offenders and acknowledging the harm done to victims and to the community.
Other aggravating factors to consider for CDSA prosecutions include, whether a weapon was used, threats of or actual violence, trafficking near a school, or trafficking to persons under 18; using young people to service the drug trade; and repeat offenders. 10(2) CDSA.
Section 718 of the Criminal Code, enunciates the following objectives for sentencing: 1) Denunciation; 2) Specific Deterrence; 3) General Deterrence; 4) Rehabilitating; 5) Providing Reparations to Victims and Community; 6) promote responsibility in Offenders.
Additional principles, include proportionality, individualization of sentence. 718.2 also requires the Judge to take into account factors such as: evidence that the offence was motivated by bias, prejudice, or hate; position of trust misused; terrorism; abuse of a child; spousal relationship; acts done for a criminal organization (ie. Gangs); aboriginal background; concurrent and consecutive sentences; least restrictive means, etc.
Canadian Parole:
In Canada, there are significant reductions in the “actual jail time” one gets for offences.
For example, under s.119-121 of the Corrections and Conditional Release Act, most federal prisoners are eligible for Parole after serving either 1/3rd of the sentence, or 7 years, whichever is less.
In addition, under s.127 of the Corrections and Conditional Release Act, after serving 2/3rds of one’s sentence, most federal prisoners are entitled to be released from the penitentiary and serve the last 1/3rd of the sentence in the Community.
This is why sometimes one hears of a person getting a 9 year sentence, but is out after serving just 3 years, or even less if the person was given “double-credit” for “dead-time,” or pre-trial detention.
Statutory Scheme & Offences
US FEDERAL SYSTEM:
Offences: The offences remain substantially the same as the ones we mentioned in Canada, with minor differences in wording. The real significance of the Offence, is the Value (or Points) attached to the Offence. For example section 2D.1.1, describes Offences Involving the Unlawful Manufacturing, Importation/Exportation, Trafficking (including Possession with Intent to Commit); Attempt or Conspiracy of Drugs.
The Drug Quantity Table, will describe how many points depending on the quantity of drugs involved. For example, let’s say Charlie “Hockey Bag” Canuck, is convicted in the US of having “at least 15 KG but less than 50 KG of cocaine” He would have a BASE OFFENCE LEVEL OF 34 Points. Assuming no criminal history, this still gets him into the 151-188 Months Range on the Sentencing Grid (12.5-15.5 years).
Sentencing: This is where the difference really exists. Complex and controversial.
The US Sentencing Commission promulgates and distributes to all federal courts guidelines and policy statements regarding factors for sentencing. Although they were “Mandatory” guidelines prior to 2005, and recently became only “guidelines” after court challenges in U.S. v. Booker and Blakely v. Washington, they are still highly relevant. This includes what is basically a chart for determinative sentencing, with an Axis for Offence Level (1-43) with Corresponding Zones A-D -on one side, and an Axis for Criminal History Points on the other (0-13 or more).
The majority of federal sentencing statutes are set forth it Title 18 of the United States Code. The main provision is Title 18, U.S.C.3553. That section sets forth aggravating and mitigating circumstances for the Judge to Consider.
Defence lawyers, Judges, and prosecutors spend a lot of time figuring out what the proper Grid Calculation is, and then adding or deleting points, for various aggravating or mitigating circumstances, and then argue within that range for the sentence. One of the key advantages of this system is adherence to the principle of sentencing that similar offenders with similar backgrounds ought to be treated similarly.
In our example, of Charlie, if he possessed a dangerous weapon, add 2 points. Let’s say he used an aircraft to import the drugs, add 2 more points. Let’s say his friend Barry Buddy, came along for the ride, but was a minimal participant, Buddy’s level would be decrease by 2-3 points. See 3B1.2 Mitigation Role.
So now Charlie is facing 34 (base level), plus 4 points for the aggravating circumstances for a total of 38 points. His range would now be 235 -293 (19.5-24.5 years). This makes sense real quick to people facing those kind of lengthy sentences.
There are very rare exceptions for getting under the enumerated range.
Two ways are the 5C1.2 “Safety Valve”/ Cooperation Section and 5K1.1 “Substantial Assistance to Authorities”. This is really the darling of the Sentencing Provisions. It allows for the Defendants to “roll” and provide “all information and evidence the defendant has concerning the offense or offenses that were part of the same course of conduct or of a common scheme or plan.” 5K1.1 allows for a downward departure on the grid by the Court, for information provided, in consideration of the timeliness of the assistance (if you’re gonna roll, better to be the first to do so), nature and extent of the assistance, completeness significance, truthfulness, and reliability of the information.
This can allow for one to get out of the mandatory minimum sentence. Some look at this section as “ratting” on their fellow criminal associates, whilst others consider it when facing 35-45 years in jail, as “looking out for #1”. Perhaps this is why Rouche’s father, commented recently to the Province Newspaoer, “You gotta be proud of him, he never rolled over..they couldn’t break him..if the rest of the world had his balls, there wouldn’t be any problem.”
US PAROLE:
The Parole system is unlike the Canadian system, with what some call touchy-feely, 1/3 day parole, and 2/3 statutory release.
Under the US Federal System, there is Calculation Table (Surprise!) for Good Time Credit. The Bureau Of Prisons and US Sentencing Guidelines Commission have the Offender serve at least 85% of the Sentence. So a 30 year sentence, means at least 25.5 years!
Summary:
Canadian Sentencing Regime had no mandatory minimum sentences (MMS) for Drug Offences up to 2009; whereas the US has had MMS for some time. Canada is now embarking upon an MMS regime with the introduction of Bill C-15.
Although perhaps not as “tough” as the US system, there is a clear trend from Parliament that MMS will be our next experiment in Canadian Criminal Drug Law Sentencing.
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Distracted Driving: Cell-Phone , PDA, and Electronic Device Restrictions While Driving in British Columbia
by Dilraj Singh Gosal, BA, JD, LL.M.
Remember the good-old-days of driver distraction? Seeing someone putting on her face/lipstick with an angled rear-view mirror, or someone brushing his hair. That’s old-fashioned; we are savvy tech-driven commuters now. Sometimes when we drive, it seems like the “actual driving” has become a secondary focus for the driver. There has been an increase of Global Positioning System (GPS) devices, and Smartphones, like RIM’s Blackberry, Apple’s i-Phone, Motorola Droid, Palm Pre, Google Android, and even televisions entertainment systems for front occupants!
Many drivers find themselves multi-tasking: checking and responding to email, sending and receiving text-messages, or even sexting, getting the latest stock quotes from the NYSE, NASDAQ or TSX. All of this while driving. Oblivious to the surrounding circumstances, including the pedestrian on the shoulder, or the red light they just went through. Fully sober, but perhaps more dangerous than an impaired driver. Many of us are part of the guilty citizenry. One recalls the California story of a train engineer who was texting while running through a red light, causing a collision with an oncoming freight train that resulted in the death of 25 people. Times have now changed though in British Columbia; well at least the Law has.
The U.S. Federal government estimates that 11% of drivers at any given time are using their cell phones. TWD, or texting while driving is currently banned in 19 American States. New Hampshire is the latest state to enact new bans effective January 1, 2010. The National Highway Traffic Safety Administration and the US Department of Transportation are supporting the restrictions. In the fall of 2009, President Obama signed an Executive Order directing federal employees not to use cell phones or text while driving.
New changes to our Motor Vehicle Act came into force on January 1, 2010. Solicitor General Kash Heed advised that there will be a grace period of 30 days, with police agencies enforcing the new laws effective February 1, 2010. The President of the BC Medical Association and Police Chief Jim Chu of the Vancouver Police Department have placed their support behind the new provisions as well.
What types of devices are covered by the new provisions?
The Act provides the following definitions or device:
“electronic device” means
(a) a hand-held cellular telephone or another hand-held electronic device that includes a telephone function,
(b) a hand-held electronic device that is capable of transmitting or receiving electronic mail or other text-based messages, or
(c) a prescribed class or type of electronic device;
The Act also defined usage as:
“use”, in relation to an electronic device, means one or more of the following actions:
(a) holding the device in a position in which it may be used;
(b) operating one or more of the device’s functions;
(c) communicating orally by means of the device with another person or another device;
(d) taking another action that is set out in the regulations by means of, with or in relation to an electronic device.
So this covers about every Smartphone, cell phone, personal digital assistant (PDA), or other electronic devices that process data.
What is the prohibition?
The Act provide that:
A person must not use an electronic device while driving or operating a motor vehicle on a highway.
A person must not communicate by means of an electronic device with another person or another device by electronic mail or other text-based message.
Are there any exemptions?
Yes, the Act provide for exceptions for emergency service personnel, such as Peace Officers, Fire Fighters, and Paramedics.
Some class of drivers are also exempt, if the vehicle is safely parked off the roadway, or to call emergency services in an emergency, and allowances are made in certain circumstances for hands-free devices, which allow for one-touch initiation.
What Kind of Fines am Facing if I disobey the Law?
If you are a on a Graduated Licence (GLP Program), the fine is $167 dollars, PLUS 3 Driver Point Premiums.
If you accumulate too many Driver Points, to the point that you have an unsatisfactory record, the Office of Superintendant of Motor Vehicles may provide for additional Driving Prohibitions. If you drive while prohibited, you can face charges under the Motor Vehicle Act, and face Mandatory Minimum Penalties of $500, 1 year driving prohibition and 10 Driver Points; subsequent convictions will result in Mandatory Minimum 14 days in Jail, followed by additional Driving Prohibitions and Driver Points.
If you are on the Novice Level (New Driver) and you get Driver Points during the first 24 months, your clock gets reset to Zero, and your 24 month period starts over again. Lesson: obey the traffic laws, or you’ll be carrying that “N” on your trunk into your university years.
Regular class drivers face $167 penalty, and if you are texting, emailing, using a phone, then 3 Driver Points. If the infraction involves other devices, then just the $167 fine.
These fines include the Victim Fine Surcharge, and there is a possibility for reduction (usually $25) if paid within the 30 days from the date of infraction.
Of course, in more serious cases, you can be charged under 144 of the Motor Vehicle Act, for failing to use reasonable care when driving a motor vehicle, or even Dangerous Driving under the Criminal Code, if the facts warrant such a prosecution.
Are you on a Graduated Licensing Program (GLP) (Class 7 and/or Class 7L)?
Then you will absolutely restricted from using any electronic devices. The ban includes hands-free devices.
What about i-pod or MP3 Players?
May be permissible, if:
• The device is not held in the person’s hand; and
• The device is securely fixed to the motor vehicle or worn
securely on the person’s body in a manner that does not
obstruct the person’s view of the front or sides of the motor
vehicle or interfere with the safety or operating equipment of
the motor vehicle; and
• The sound is emitted through the speakers of the sound
system of the motor vehicle.
What about my GPS System?
A person may use a Global Positioning System (GPS) for navigation
purposes while driving if:
• It is programmed before the person begins to drive or
operate the vehicle; or
• It can be programmed in a voice-activated manner, and
• If it is a hand-held GPS device, it must not be held in the
hand; and
• It must be securely fixed to the motor vehicle in a manner
that does not obstruct the person’s view of the front or sides
of the motor vehicle or interfere with the safety or operating
equipment of the vehicle.
Television and Entertainment Screens?
Don’t worry, your kids can still watch Elmo on rear seat entertainment. But no TV’s in the front, or X-Box challenges at redlights.
A person may not have a television image displayed within view of that driver unless the image displays pictures, information or data solely designed to assist the driver in the safe operation of the vehicle or the safety and security of its load or its passengers. The device must be installed so that it is securely fixed to the motor vehicle and in a manner that does not obstruct the driver’s view of the front or sides of the motor vehicle or interfere with the safety or operating equipment of the motor vehicle.
Two-Way Radios are OK for Professional Drivers.
Obviously transportation industry requires communication between drivers and to their employers. There are exemptions for this class of persons as well.
For more information, see the Motor Vehicle Act, s.214.1, and s.25. Visit the USDOT-NTHSA at http://www.nhtsa.dot.gov/. The above article is general information, is neither legal advice, nor to be relied upon in making your driving decisions. Laws are also subject to change. Drive Safe. See Solicitor General webpage for more information or visit ICBC.com.
