A sentencing judge must not take into account the relative harmfulness or effects of a particular drug when sentencing for trafficking, following R v Pidoto and O'Dea. Where the prosecution concedes it can only establish a minimum quantity by virtue of a guilty plea, the sentencing judge cannot make findings as to a higher quantity without adequate evidentiary foundation established beyond reasonable doubt. Where sentencing error re-opens the discretion, the appellate court may re-sentence on substantially the same terms if the result would have been the same absent the error.
The full text is available to signed-in members, including the 6 later cases that cite this judgment.