R. v. Diedricksen, 2018 BCCA 336 - SummaryR 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]
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,  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.