The Crime That Pays:
Drug Trafficking and Organized Crime in Canada

By Frederick J. Desroches
Toronto, ON: Canadian Scholars’ Press Inc., 2005

As a criminal trial court judge, I was intrigued by the prospects of reviewing this book.  After all, the purpose pursued by Dr. Desroches promised to be quite interesting for any student of criminology: “The purpose of this book is to provide a review of research and theory on higher-level drug trafficking and organized crime. The book focuses primarily on the Canadian experience and presents the results of interviews with 70 convicted drug traffickers …  The text examines the characteristics of organized crime, the structure and functioning of drug syndicates, motivation, modus operandi, the manner in which the police investigate these groups, and social policy dealing with illicit substances.”  (Preface, page xi)   And I can attest to the fact that the author succeeded in achieving his objective for The Crime That Pays  Drug Trafficking and Organized Crime in Canada as it provides a valuable “inside”, albeit subjective, account of high-level drug trafficking and a detached and objective professional evaluation and analysis of the elements listed above.  This book is worthy of the profession’s interest solely for that reason.

However, my particular interest in reviewing this text was predicated on my selfish perspective as a “sentencer”.  Indeed, I was keen to discover how offenders viewed the prospect of apprehension, and whether they were deterred in any sense of the word in light of the vast amounts of money they stood to reap from this illicit trade¹ and, if so, whether they feared apprehension more than the sanctions they might receive.  The insights as to the thinking patterns of these individuals and, to a lesser degree, of their criminal cohort, are quite revealing in general,² but they are fascinating to one who must attempt to apply the principle of deterrence, as will be seen.  This review, therefore, has a narrow focus but one which should prove of assistance in highlighting the quality of this research to the profession as a whole, including information about rational choice theory.

Accordingly, in attempting to ascertain the reach of deterrence to this group of criminals, it will be of assistance to delineate what is meant by deterrence.  In this respect, the most recent guidance delivered by the Supreme Court of Canada is found in paragraphs 2 and 3 of R. v. B.W.P.; R. v. B.V.N., [2006] 1 S.C.R. 941, 209 C.C.C. (3d) 97, 38 C.R. (6th) 1. In light of the importance of the instruction given by our highest Court, the relevant passages are reproduced below:
 
[2]      Deterrence, as a principle of sentencing, refers to the imposition of a sanction for the purpose of discouraging the offender and others from engaging in criminal conduct. When deterrence is aimed at the offender before the court, it is called "specific deterrence", when directed at others, "general deterrence". […] General deterrence is intended to work in this way: potential criminals will not engage in criminal activity because of the example provided by the punishment imposed on the offender. When general deterrence is factored in the determination of the sentence, the offender is punished more severely, not because he or she deserves it, but because the court decides to send a message to others who may be inclined to engage in similar criminal activity.

[3]      While general deterrence as a goal of sentencing is generally well understood, there is much controversy on whether it works or not. Those who advocate its abolition as a sentencing principle, particularly in respect of youth, emphatically state that there is no evidence that it actually works in preventing crime. Those who advocate its retention are equally firm in their position and, in support, point to society's reliance on some form of general deterrence to guide young people in making responsible choices on various matters, for example, about smoking, using alcohol and drugs and driving a motor vehicle. The question whether general deterrence works or not is not the issue before this Court…  Having set out the legal parameters to this highly controversial area of the criminal law, let us review the findings that are available to us as a result of Professor Desroches’ study. 

The initial comments in this respect are contained in the introductory chapter, on pages 10-11:  Rational choice theory is applicable to an analysis of drug trafficking since it considers the dealer’s perspective in order to understand motives, modus operandi, and decision making.  Offenders are viewed as instrumentally rational actors who choose specific behaviours that will maximize benefits while minimizing costs. Crime is chosen as a rational means that offenders believe will be the most effective way to achieve their goals.  …  Would-be offenders use this information to choose rationally between various actions, and voluntarily and purposefully choose crime if the expected utility outweighs possible losses. It will be seen that higher-level dealers exhibit a great deal of rationality, are careful to evaluate risks versus rewards, and develop and implement a modus operandi that emphasizes safety and profit. [Emphasis supplied]

Of note, in the course of reviewing the penalty scheme for drug trafficking and related offences in chapter 2, the author remarked, on page 32:  “Over half the subjects in this study were eligible for accelerated parole because they were first-time penitentiary inmates with no record of violence. This allowed them to be released into a halfway house after having served one-sixth of their sentence. Many were aware of the relatively lenient sentences imposed by Canadian courts in drug trafficking cases³ and also knew that the Corrections and Conditional Release Act allows for early eligibility.”  [Emphasis supplied]  Indeed, the next sentence emphasizes that the offenders were aware of such matters, in general terms, prior to committing their crimes.  “It was common for offenders to claim that they avoided committing their crimes in the U.S. because of the harsh penalties imposed on drug traffickers in that country” (p. 32).

Professor Desroches added, “It can be argued that the relatively lenient sentences handed out to higher-level drug traffickers in Canadian courts do not act as significant deterrents to involvement in this type of crime.  In addition, parole provisions also diminish the deterrent value of court-imposed sentences” (p. 32).⁴

Of particular interest is the discussion found in Chapter 4, “The Motivation and Lifestyle of Higher-Level Drug Traffickers”, pages 53-111.  Of note, the following passage is consigned in the opening paragraph, on page 53: “… people who are desperate for cash and who find legitimate financial opportunities blocked may be deterred because of moral prohibitions, a lack of connections, or a fear of apprehension and punishment.”  Nevertheless, these higher-level offenders were not deterred prior to arrest, an obvious conclusion in light of their arrests and convictions, but they were concerned about the prospect of detection and accordingly, they reduced their involvement to a greater or lesser degree.  In addition, although certain of them are repeat offenders, undeterred by their earlier convictions and sentence, they seem to be unanimous in having decided to “go straight” in the future.  To a certain extent, this ultimate resolve appears to be a further example of a “cost-benefit” analysis conducted by the offenders, as made plain by the brief yet interesting discussion of the rational actor model on pages 56-58.  In addition, I commend the case study on pages 60-62 for the illuminating insights touching upon the risk of capture versus the hope of great wealth.  All in all, this chapter underscores with great acuity that the great majority of these offenders reasoned as did the person described on page 66: “I weighed the pros and cons, and the numbers outweighed the risk factors.”  Further, the author demonstrates ably how the retail-level dealers are far less capable of great “discernement” in this respect, trusting their fate to luck notwithstanding any number of warning signs suggesting imminent detection and arrest.  Notable is the discussion on pages 76-77 on the subject of the social bonding theory, suggesting that the relatively weak social cohesion they enjoy poses no obstacle to wrongdoing.

Finally, constraints of space limiting the extent of this review, I wish to direct the reader’s attention to pages 106-111 in which Professor Desroches describes ably the various reasons that these offenders failed to remove themselves from the drug milieu prior to arrest, and in particular the constant references to the limited role that deterrence plays in the choice they made.

¹ Indeed, Professor Desroches stresses repeatedly the bedrock fact found on page 5: “This book examines a crime that does pay and attempts to shed light on the conditions that contribute to success in this underground economy.”

² In the Preface to his text, Why Punish?, [Oxford University Press: Oxford, 1991], Dr. Nigel Walker noted that “[…] during the sixties and seventies I was also conducting weekly seminars […] in Oxford and Bedford prisons, with mixed groups of prisoners and students […]  they made us aware of the reactions and reasoning of men who were experiencing official punishment, some of them for the first time but some of them for the nth time […]” (p. vii).

³ It will of assistance to point to one judge’s views in this respect, mindful that this is not necessarily representative, but may be helpful as an illustration of the mindset that I find is generally at play in sentencing.  Thus, para. 37 of R. v. Faulds (1996) 111 C.C.C. (3d) 39 (Ont. C.A.) records these comments:

[37]     The appellant Faulds appeals his sentence of five years and the appellant Tyler appeals his sentence of seven. Neither man has a criminal record and both were well respected in the communities in which they lived and carried on what were ostensibly honest businesses. Much was made of this evidence of good character before the trial judge. I agree with her that this is not a case where good character can be considered a mitigating factor, as the appellants exploited their respected stature in the community to facilitate their crimes. I am not impressed by evidence that the appellants were much admired for their activities in their communities when their public lives were a lie. They presented themselves as successful small businessmen when in reality they were members of a criminal organization of a most despicable kind. I have some sympathy for businessmen, who in the course of failed business ventures, succumb to temptation and commit illegal acts, but these two appellants made career decisions to join an established drug cartel and actively sought advancement within that organization. [Emphasis supplied]

⁴ I pause to note that in his last book, A Man Without Loyalties A Penologist’s Afterthoughts, [Barry Rose Law Publishers Ltd: Chichester, 2003], Dr. Nigel Walker observed, on page 80: “… There is plenty of evidence that the prospect of long incarceration is as effective as death in deterring lethal violence (although it may be more effective against other types of crime, such as drug-trafficking, for all we know).  See my review in Canadian Journal of Criminology and Criminal Justice, (2005), Vol. 47(3), p. 611.