Sep 27, 2018

R. v. Diedricksen, 2018 BCCA 336 - Summary

R v. Diedricksen, 2018 BCCA 336 (CanLII)

There has been a worrying trend towards harsher sentences for drug trafficking offences in Western Canada, especially when the trafficking scheme involves delivery drivers (usually referred to as dial-a-dope operations). In this judgment, the Court of Appeal for British Columbia puts some limit to this sentencing escalation by reminding us that aggravating factors need to be proven beyond a reasonable doubt on sentencing, and that not every person involved in a dial-a-dope operation deserves the severe sentences that the recent jurisprudence has led to.

The Court first notes the dial-a-dope aggravating factor, without criticising it [par. 10-13]. However, it then recognises that the cases setting out this principle were based on "offenders [who were] either selling drugs or closely involved in an ongoing dial-a-dope business operation" [par. 24]. This explains why the Court makes a distinction between "drug sellers" and "those offenders who are not drug sellers but who aid in the sale of drugs by facilitating a transaction" [par. 14].

This case revolved around the proper reach of a passage from R. v. Voong, 2015 BCCA 285, at par. 1: "Those who embark in drug trafficking engage in serious criminal conduct. Absent exceptional circumstances, in British Columbia, they should expect to be sent to prison." As the Court cautions, "[w]hile there is no doubt that drug trafficking is a serious criminal offence that will often result in a custodial sentence, the context of this statement is important." [par. 29] This is because "[n]one of the four offenders in Voong could be characterized as aiding in a sale of drugs; they were directly engaged in the sale of drugs. Justice Bennett’s comments must be taken in that context." [par. 30]

The Court takes the position that this context leads to the conclusion that simple entremetteurs are not contemplated by the calls for harsher sentencing. More is required to justify the punitive approach:
"[31] In drawing the 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, I do not suggest that the latter offender is not guilty of a serious criminal offence under the CDSA. But to the extent that engaging in dial-a-dope drug sales is an aggravating factor for purposes of sentencing, it seems to me that this factor would not apply to the latter category of offender in the absence of proof that he had an integral role in the operation of drug trafficking through the dial-a-dope business model."

In this case, where the accused pled guilty under an agreed statement of facts [detailed at par. 5], the Crown did not try to prove the contemplated aggravating factor, as the case of R. v. Gardiner, [1982] 2 S.C.R. 368, would have required [par. 32]. The record thus did not allow "the sentencing judge to sentence Mr. Diedricksen as a middleman in a dial-a-dope operation" [par. 32], which was as such an error in principle [par. 33]. This error had an impact on sentencing, because it led the judge to apply the wrong range [par. 34-36].

A number of mitigating factors [par. 42] were in the offender's favour, but "[d]enunciation and deterrence are important principles in sentencing for drug trafficking" [par. 43]. However, "having in mind the mitigating factors [] outlined, a custodial sentence is not necessary for this offender in order to satisfy the principles of denunciation and deterrence" [par. 51]. The Court suspended the sentence and released the offender on an 18-months probation order, instead of the initial six months' imprisonment.