Prison sentences for street-level trafficking of the dangerous opioid fentanyl by first-time offenders should be increased to 18 months from six, the B.C. Court of Appeal has concluded.
In the ruling, Justice Mary Newbury said it’s concerning that B.C. courts are handing out sentences that are “markedly out of step” with those imposed in other jurisdictions facing the problem of fentanyl abuse.
“This is particularly troubling, given that according to the statistics prepared by the Canadian Centre on Substance Abuse, B.C. has one of the worst, if not the worst, problems of fentanyl abuse in Canada,” wrote Newbury.
Despite media campaigns, public alerts and outreach efforts by police and social workers, fentanyl continues to claim lives, she said.
“The danger posed by such a drug must surely inform the moral culpability of offenders who sell it on the street and obviously increases the gravity of the offence beyond even the gravity of trafficking in drugs such as heroin and cocaine.”
Newbury suggested a range of 18 months in jail to more than 36 months if an offender has a substantial record of fentanyl trafficking or demonstrates an indifference to the lives he is putting at risk.
Her comments arise out of the case of R. versus Frank Stanley Smith, a 59-year-old first offender.
On Jan. 20, 2015, Smith tried to sell drugs to an undercover police officer in Vancouver’s Downtown Eastside. He was arrested with 13 flaps of fentanyl, 18 flaps of cocaine and several rocks of crack cocaine on his person. Smith told investigators he thought the fentanyl flaps contained heroin.
Smith pleaded guilty to possession of cocaine and possession of fentanyl for the purpose of trafficking. In 2016, he was sentenced to six months in jail.
The Crown appealed the sentence, saying it was unfit given the danger of illicit drug overdose deaths from fentanyl.
The appeal was dismissed by Justice David Harris and Justice Peter Willcock, who upheld the six-month sentence.
But Newbury dissented, saying a sentence of 18 months was more appropriate. Fentanyl had emerged as a public health emergency prior to January 2015, she said. Smith did not take any steps to ensure he was only selling heroin. And two days after his arrest, he breached a bail order by returning to the Downtown Eastside with 15 packages of fentanyl and 45 balls of cocaine, she said.
Harris said from January 2015 to November 2016, there was a profound and enormous escalation of the fentanyl crisis and the public awareness of it.
He acknowledged that as early as May 30, 2013, public health authorities were warning the public of the increase in deaths and the availability of fentanyl in the street drug market. In June 2014, the B.C. Coroners Service issued a public warning to drug users to use extreme caution when consuming substances that contain fentanyl.
But even in August 2015, there was some uncertainty about the role of fentanyl in causing or contributing to accidental drug overdose deaths, said Harris. The majority of deaths involved mixed illicit drug overdoses.
By February 2016, a public health campaign was underway. The number of deaths involving fentanyl grew at a frightening rate.
Harris agreed with Newbury that the appeal court should endorse a sentencing range for street-level trafficking in fentanyl beginning at 18 months and increasing to more than 36 months. The range should be higher than the sentencing range for trafficking heroin, which seems to start at six months in jail, he said.
Typically, people do not know the drugs they are using contain fentanyl, said Harris.
“As my colleague has clearly explained, fentanyl is a scourge. It poses intolerable risks of accidental overdosing because it is so much more powerful than morphine … even tiny amounts of fentanyl mixed into other drugs such as cocaine and heroin may be fatal.”
