Chapter 15 - The Criminal Justice System

Disposition and sentencing 

While the quality of criminal justice statistics has been discussed in other chapters, the weakness in these numbers is particularly evident with respect to the disposition and sentencing of drug-related offences. This issue was also raised in the Auditor General's report for 2001. 

There are weaknesses in some aspects of law enforcement statistics. First, there are no national statistics on illicit drug convictions and sentencing. For example, British Columbia, Manitoba, New Brunswick, and Nunavut do not provide adult criminal court data to Statistics Canada. The use of statistics requires good analysis and interpretation to understand underlying trends and causes. Because Canada does not have national data, it cannot monitor important trends such as sentence lengths, emergence of new drugs, and regional differences… 

A second weakness is that the statistics on drug convictions and sentencing, which are reported according to the categories under the Controlled Drugs and Substances Act, are limited in detail. While the national statistics on police charges break down the number of drug charges by both type of substance (for example, heroin, cocaine, and cannabis) and act (for example, possession, trafficking, importation, and cultivation), the statistics on convictions are broken down into only two categories - possession and trafficking. The Inter-American Drug Abuse Control Commission's 1999-2000 report on Canada's progress in drug control stated that improvements were needed in the justice system's statistics on drug offences.[1][10]

 

Despite these weaknesses, data relating to the disposition and sentencing of drug-related offences will be reviewed.  

The following figure details the outcome of those charged with drug offences in selected provinces. It would appear that, from 1995 to 2000, there was a fairly significant increase in the percentage of cases in which the charges against the accused were either stayed or withdrawn. Not surprisingly, the percentage of people being found guilty of drug offences once they had been charged was lower. It is important to note, however, that this figure does not include data from three of the provinces (New Brunswick, Manitoba and British Columbia) and from one of the Territories (Nunavut); nor does it include data from certain courts in Quebec. Also, the data prior to 1995 are based on approximations of the average distribution of charges during the period covering the years 1995 to 2000.  

 

 

 

 

 

 

 

 

 

For the year 1996-1997, 64% of persons convicted of drug trafficking were sentenced to imprisonment. The median sentence was four months. Probation was imposed as the most serious sentence in 24% of these cases and fines, in 9%.[2][11]  

With respect to possession, a fine was imposed in 63% of the cases, with a median amount of $200. A fine was imposed as the most serious sentence in 55% of cases, probation in 22% and imprisonment in 13%.[3][12]

We were informed that the FPS is attempting to identify and implement alternatives to prosecution where appropriate. For example, “diversion” – whereby first-time offenders who have been charged with simple possession of cannabis are diverted out of the formal criminal justice system – was mentioned. Also discussed were the drug treatment court pilot projects in Toronto and Vancouver, whereby addicted offenders are referred to a fairly rigorous court-monitored treatment program. In addition, we were told about the recent implementation of the “deferred prosecution pilot project,” in which prosecutors post a peace bond for offenders who have been charged with possession of cannabis in Manitoba. In these cases, the charges would be stayed, and as long as the offender is not back before the court system within a period of one year, the matter would be discontinued. Other “diversion” programs across Canada were mentioned.[4][13]

While Canada’s disposition and sentencing data are incomplete, a few studies of limited scope suggest what is happening in Canada. A document prepared by the Comité permanent de lutte à la toxicomanie reviews police and judicial practices based on Quebec statistics from 1985 to 1998.[5][14] The report found that practices varied from one region to another in Canada and also from one region to another in Quebec. It notes that while there is a trend towards greater use of diversion in cannabis possession cases, it is far from being a standard practice. Diversion was used more often in the case of minors and, in their case, is on the rise (20.6 % in 1990, 48.2 % in 1995, 55.9 % in 1996 and 63 % in 1997). Once again, this varies considerably from one region to another.

Of those charged with cannabis possession, approximately 80% were adults and mostly male (roughly 90%). The report noted that penalties were not severe, particularly where it involved only one offence. For adults, the majority of the penalties imposed by the courts were fines and probation, and very rarely imprisonment. For minors, the most common penalty was community work or probation; detention was rarely imposed. Data from Montreal in 1998 indicate that incarceration for cannabis possession was less likely (13.8 % of all sentences) than for other substances, and that such penalties were shorter (50% were for 1 day and none was for more than 10 days). In addition, fines were smaller (average fines for cannabis were $186 while they were $277 for cocaine).

Patricia Erickson, a researcher from the Centre for Addiction and Mental Health, provided information on cannabis criminals based on three studies conducted in Toronto in 1974, 1981, and 1998. The studies indicate that cannabis criminals were overwhelmingly young men (about 90% were male and more than half were aged 21 years or less). Of the sample group, 80% were employed or in school and about half lived with parents. Most offenders were charged with only one count of simple possession and the amounts involved were small. In over 75% of the cases, charges were based on possession of less than 14 grams of cannabis. Of the whole sample interviewed in 1998, 50% had 1 gram or less of cannabis as the basis for their cannabis possession charges.

With respect to sentencing, in the first two studies, an absolute or conditional discharge was ordered in a large proportion of the cases. In 1998, 43% were diverted and the rest were awaiting disposition. It was indicated that penalties seemed to be given out randomly and that there “was no correlation between sentence received and the type of person they were, or the case characteristics, charge and amount of drug.”[6][15]

 Also discussed was the issue of deterrence. The first study noted that 92% were still users one year later (in the later studies, about 80% intended to use cannabis or were still using it). In addition, the studies noted that the severity of the penalty was not relevant in deciding whether to use it in the future. The factor that best predicted an end to use after the user was arrested was simply the quantity the offender had used in the past–the less used the more likely the user was to stop. There was also no evidence of general deterrence, although it was indicated that this is much more difficult to measure.

While diversion programs are certainly an improvement on the traditional justice system response, it would seem that these programs are being developed on an ad hoc basis and are not consistently available across the country. Thus, while some offenders may benefit, others are left to face the traditional criminal justice system. In addition, it is not clear whether the admission criteria are similar under the various diversion initiatives. This would suggest an uneven application of the criminal law with respect to offenders who have committed the same offence, with the disposition of a case based not on the offence itself but rather on where it was committed.