Drug sentencing: Deterrence meets punishment, revisited

By John L. Hill

Law360 Canada (June 16, 2022, 11:14 AM EDT) --
John Hill
John L. Hill
Recent cases on sentencing when the offence includes possession or trafficking in fentanyl demonstrate how lengthy imprisonment is the fall-back position in sentencing a convicted offender. I have earlier commented on the British Columbia case R. v. Gill 2022 BCCA 127 where an attempt to substantially lessen a conviction for serious drug possession was thwarted, and a strong dissent that stiff penitentiary terms must stat in place. A recent case in Ontario shows our Court of Appeal is similarly intransigent and falls back on the use of general deterrence in the illusory belief that harsh sentencing will curb the sale of dangerous drugs.

The Ontario case is R. v. Lynch 2022 ONCA 109. In that case, Paul Lynch had sold an undercover police officer a substantial quantity of cocaine laced with fentanyl. The Crown at trial asked for a sentence of 10 years’ imprisonment. Justice Malcolm McLeod of the Ontario Court of Justice imposed a four-year sentence.

In the course of his sentencing, Justice McLeod courageously made some statements to which the Ontario Court of Appeal took exception. The Appeal Court listed those:

1. The punitive sanction of incarceration should be reserved for a narrowly defined category of serious offences. The extent to which we have ignored that instruction has created the crisis of over-incarceration.

2. Despite the obvious inference that the punitive strategy applied to heroin distribution contributed to the crisis resulting from oxycontin distribution and then fentanyl, the criminal justice system determined that the same approach must be applied, with even greater rigour.

3. It would be contrary to principles of justice to impose harsh punitive sanction on a lower-level drug trafficker as if he was the representative of the principals of the drug trafficking enterprise. Harsh punitive sanctions should be within the range established for low level traffickers in dangerous drugs.

4. It must be borne in mind that the fact that the Ontario Court of Appeal issued a blanket endorsement of the practice of punishing an offender more severely than he deserved is difficult to reconcile with the principles of justice and fairness.

At trial, Justice McLeod gave considerable weight to the fact that Lynch pleaded guilty, just as Gill had pleaded guilty in British Columbia. But for possession and trafficking in a dangerous drug, that seems inconsequential.

It would seem that the last-mentioned criticism coming from a lower court was particularly irksome to the Court of Appeal. It chided the trial judge for criticizing the reasons of a higher court. Such criticism, it inferred, should be left to law review articles or similar forums.

Yet the Appeal Court acknowledged that it was the courts of first instance who are swift to note if a particular approach is not working or is outdated. However, it cautioned that trial court judges should moderate their criticism lest we see an undermining of confidence in the administration of justice. Although that would be a legitimate concern, is it also not likely that this confidence will also be eroded by blindly imprisoning offenders for extremely lengthy terms when a review of the case shows that the objects of denunciation of the wrong and general deterrence are disproportionate to the needs of the offender and the protection of society?

In the end, a unanimous opinion of the three Court of Appeal justices allowed the Crown’s appeal and substituted the four-year sentence originally imposed with a six-year sentence.

The Court of Appeal has spoken. The dicta in the decision should be enough to silence future criticism of the bench. General deterrence even without proof that it works will continue to be an overriding feature for our courts to use in sentencing.

This is the second half of a two-part series. Part one: Drug sentencing: Where general deterrence bumps up against punishment.

John L. Hill practised and taught prison law until his retirement. He holds a J.D. from Queen’s and LL.M. in constitutional law from Osgoode Hall. Contact him at johnlornehill@hotmail.com.

Photo credit / canbedone

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