As the fentanyl crisis continues to kill people across B.C., the province’s judges must decide whether those who sell the powerful opioid deserve a harsher punishment. However, some lawyers and criminologists warn that the criminal courts are an ineffective solution to the war on drugs.
A Campbell River provincial court judge recently ruled that the presence of fentanyl in a drug seizure was an aggravating factor that led to a 12-month jail sentence for 23-year-old Tylor Michael James Derycke, who was selling drugs to feed his own addiction.
In her judgment, Judge Barbara Flewelling said that while the Controlled Drugs and Substances Act does not prescribe a higher sentence for selling fentanyl, she can consider the drug’s consequences.
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“Courts across the country have made many references over the years to the ‘scourge’ of hard drugs such as heroin and cocaine and the human cost and devastation that those drugs cause. In determining where in the range of a fit sentence Mr. Derycke would fall, I am entitled to consider the dramatic rise in fentanyl-related overdose deaths and the public-health emergency that has been declared in British Columbia and in other provinces,” Flewelling wrote.
Derycke was convicted of possession of fentanyl, heroin, cocaine and marijuana for the purpose of trafficking. His lawyer was pushing for a six-month sentence because it was Derycke’s first drug offence and he has been battling heroin addiction since he was 14.
Flewelling hoped her judgment would send a clear message “that drug traffickers cannot be wilfully blind to the nature and consequences of the drugs they are selling. I am also of the view that a sentence in a smaller community such as Campbell River has a greater impact in deterring others who are recruited by drug-trafficking operations to sell drugs here.”
In September, federal prosecutors in B.C. called for an unprecedented 18-year sentence for fentanyl trafficker Walter James McCormick, who was arrested in a Vancouver police investigation. The sentencing for that case is set for Dec. 6.
In New Hampshire, the attorney general’s office called for charges similar to homicide in an effort to make dealers criminally liable for fentanyl-related deaths.
A judge in Kelowna declined to consider fentanyl as an aggravating factor in a drug-trafficking case, saying it’s up to lawmakers to explicitly state whether fentanyl deserves a tougher sentence.
Neil Boyd, a criminologist at Simon Fraser University, said while it’s appropriate for the courts to consider the fentanyl epidemic in their sentencing decisions, the criminal courts are not the best instrument for solving the larger problems.
“When there’s an awareness on the part of the individual that the drug had fentanyl in it, then passing that risk onto the consumer is something the courts are going to see as an aggravating circumstance in sentencing,” Boyd said.
“But I don’t think that the best solution to the problem of opioid addiction is to continue with criminalization. I think it’s important we look at different ways of dealing with addiction that are non-criminal.”
Victoria criminal lawyer Mike Mulligan has little hope that harsher sentences will act as a deterrent to drug dealers, who are often addicts themselves.
“If the risk of death isn’t deterring you from using drugs, the risk of going to jail for some period of time surely isn’t going to do it,” he said.
One only has to look at the massive levels of incarceration in the U.S. as proof that locking people up does not end the war on drugs, Mulligan said.
“All of our efforts for many years to try to deal with drug use and drug addiction as a criminal justice matter have been utterly unsuccessful,” he said.