Problem #1

Abbreviations – CDSA (Controlled Drugs and Substances Act); CC (Criminal Code)

Background

John Smith was convicted after trial by a jury of the following offences: Production of
Cocaine (s. 7 CDSA), Possession of Cocaine for the purpose of trafficking (s. 5(2)
CDSA), Unauthorized Possession of a Firearm (s. 92 CC), Possession of Proceeds of
Crime (s. 354 CC).

John Smith was arrested 2 years ago by the RCMP Drug Squad. Acting on a tip police
executed a search warrant on an apartment across from the U of W. There was nobody in
the suite and no evidence it was being lived in by anyone. The suite was being used
solely to produce, store and traffic drugs. Police seized 850 grams of powder cocaine,
400 “rocks” of crack cocaine (approx. 100 grams of cocaine), equipment and chemicals
to transform powder cocaine into crack, a discharged TASER, $18,000 in cash, 11 cell
phones, sheets of paper recording drug debts (“score sheets”).

The landlord testified at the trial that Smith had rented the suite three months prior to the
police raid and had been paying the rent each month in cash.

John Smith was arrested at his parent’s home. Smith’s father owned a successful small
business and his mother was a teacher. The parent’s other child, Jane Smith, is 3 years
older than John and is a successful classical pianist studying in London. Smith’s father
took the arrest of John very badly. He got drunk one night over the stress and got into a
single vehicle accident where he permanently injured his knee. Smith’s sister won’t talk
to Smith as she is embarrassed and worried the publicity about her brother may affect her
career. Smith’s mother is suffering from depression from the incident and the stress it is
causing the family. She is addicted to pain killers and was placed on a leave by the school
division as she was missing school and has been behaving erratically.

At the trial Smith’s defence was he rented the suite for a friend at the U of W who he
wanted to date. Smith testified “Amy” asked him to rent the apartment for her as her
brother needed a place to live and had a bad credit rating. Smith said he did so in hope
Amy may return his affections. Smith went out on a few dates with Amy after he dropped
off money to the landlord for the suite.

Smith testified he was not involved in the production of drugs or their sale. Smith
testified he lived with his parents, attended university and knew nothing about what Amy
and her brother may have done with the suite. Smith claimed he was duped.

There was no evidence at the trial to corroborate “Amy” existed as Smith claimed. The
landlord testified that the only person connected to the suite was Smith. The landlord
testified that Smith was the only one who had a key to the suite as far as he knew.

At the trial an expert witness on the drug trade testified that the value of the cocaine in
the suite was over $50,000. The expert testified that drug trafficking paraphernalia in the
suite evidenced the trafficker had significant criminal ties and had been selling for some
Problem #1
Abbreviations – CDSA (Controlled Drugs and Substances Act); CC (Criminal Code)

time. The expert said the dealer in question was a mid-level dealer in Winnipeg with
some sort of connection to organized crime.

At the sentencing defence counsel filed several reference letters from friends and family
confirming that Smith is a popular person and is someone who has been active in the
community coaching swimming.

Smith was on bail for two years without any incidents suggesting he was not complying
with the terms of his release. He completed his Science degree at the U of W and has
secured acceptance in the Master’s program at the U of M.

The landlord testified at the trial that there were 100 suites in the apartment building.
Approximately half were rented by students and the other half by seniors or immigrants
with young families. The evidence was that the waste from the production of crack in the
suite went into the water system in the building. The landlord testified there have been
incidents in the past of gang members coming to the building to muscle people over
drugs and many tenants have expressed concerns calling for more security.

A doctor testified at the sentencing that the production of crack cocaine can cause
noxious gases in a confined space. Because of the shared ventilation system other tenants
would be exposed to the chemicals in the suite Smith rented. Long term exposure to the
chemicals can cause respiratory problems for elderly people or small children.

A pre-sentence report was prepared by a probation officer. Smith denied the offences to
the probation officer. He said the jurors were “stupid” for not believing his story. Smith
said he was frustrated in life and he had done a lot since he was arrested to better himself.
The probation officer said that Smith was the product of a loving family and had been
given every opportunity to succeed in life. Smith had no addictions or health issues. The
probation officer commented that Smith was “guarded” in discussing his peer group and
was always vague about his friends. The probation officer said Smith could benefit from
some intervention by probation services. The probation officer said Smith was a low to
medium risk to reoffend. Smith is 24 years old and has no prior criminal record.

Defence counsel has asked you to not send her client to jail. Defence counsel said Smith
was a dupe and is not a major drug dealer. He is a young man with rehabilitative
prospects. Defence counsel has asked for 2 years less a day of house arrest with strict
conditions.

The Crown has asked you to sentence Smith to 5 years imprisonment. The Crown says
Smith is a liar who the jury disbelieved and was a drug dealer endangering the safety of
people living in the apartment building.

Assignment

What are the relevant sentencing principles to consider? If you were the presiding judge
how would you pass sentence?