The Crown appealed a 90 day intermittent sentence imposed on Mr. Melnyk for trafficking in cocaine. In response, the defence made an application to re-argue the long-standing starting point set in R v Maskell, 1981 ABCA 50 (CanLII). That case provides that a penitentiary term is the starting point sentence for commercial trafficking in cocaine on more than a minimal scale. The application for reconsideration was denied: R v Melnyk, 2014 ABCA 313 (CanLII).
After reviewing the criteria set out in R v Arcand, 2010 ABCA 363 (CanLII) for reconsideration of a precedent decision, the panel concluded that it was not necessary to reconsider Maskell. Maskell, while an older decision, had been applied in more recent appeal decisions. While the defence had argued that the Maskell decision contained an obvious flaw, in that it did not clearly define what constituted commercial trafficking beyond a minimal scale, the panel concluded that this can be addressed by decisions developing “the indicia of commercial trafficking on more than a minimal scale”. It was not necessary to reconsider the starting point decision.