Appeal court reduces fentanyl trafficker’s sentence seven years

A fentanyl trafficker and member of the Fallen Saints motorcycle club who received the harshest penalty in the Project Forseti drug investigation has received a seven-year reduction of his prison sentence.

The Saskatchewan Court of Appeal ruled the 18-year sentence imposed on Justin Murray Smith “was not proportional to the gravity of the offence, having regard for sentences imposed upon similar offenders in similar circumstances elsewhere in Canada,” and changed it to 11 years.

Arguments were heard in Regina back in April.

Smith’s lawyer, Brian Beresh, said the sentencing judge took an “arithmetic approach” to sentencing without providing reasons for the lengths imposed, and therefore failed to strike an appropriate balance.

He argued the total sentence should be eight years.

In 2017, Smith pleaded guilty to nine offences: trafficking fentanyl, cocaine and heroin, conspiring to traffic cocaine, possessing proceeds of crime, two gun trafficking charges and two criminal organization offences.

He admitted that in 2014, he sold 1,834 pills containing a mixture of fentanyl and heroin, but made to look like Oxycontin, to the vice-president of the Fallen Saints.

He did not know the vice-president was working as an undercover police agent in Project Forseti, a lengthy investigation targeting the Fallen Saints and Hells Angels in Saskatchewan.

Justice Shawn Smith calculated a sentence of 35 years, ruling Justin Smith was at the “heart of organized crime in Saskatoon.” After applying the totality principle, which ensures consecutive sentences are not unduly harsh and allow for rehabilitation, the global sentence was 18 years.

Smith, 36, appealed on the basis that the 15-year concurrent prison terms for fentanyl and heroin trafficking (11 years post-totality), eight-year sentences for conspiring to traffic and trafficking cocaine (seven years post-totality) and two-year consecutive sentences for the organized crime offences (18 months post-totality) were “demonstrably unfit.”

The appeal court judges reduced the fentanyl trafficking sentence to eight years. In her written decision, Justice Georgina Jackson, with Chief Justice Robert Richards and Justice Jerome Tholl concurring, ruled it’s aggravating that Smith sold a large number of pills, purely for profit, as part of a criminal organization.

However, there was no evidence about either the quantity or quality of the fentanyl and heroin contained in the pills, or that Smith was “the directing mind behind the operation,” Jackson wrote. She found, according to national case law, that double-digit fentanyl trafficking sentences are reserved for cases involving high-quality fentanyl, firearms and some element of importation — factors not obviously present in Smith’s case.

According to the decision, this is the first fentanyl trafficking case to reach the Saskatchewan Court of Appeal.

“Fentanyl, the various forms in which it can exist and the way it can be packaged and sold, make matters too uncertain at this time to provide a range that might become nothing more than an impediment to the proper exercise of discretion,” the decision stated.

In reaching an 11-year sentence, Smith’s criminal organization sentence and gun trafficking sentence were each reduced from four years to 18 months.

The appeal judges also overturned the sentencing judge’s order that Smith serve half his sentence, instead of the usual one-third, before he is eligible for parole.