Harsher punishments won’t tame ‘scourge’
B.C. judges have been way too soft on fentanyl dealers and even first-time offenders should usually be jailed for at least 18 months — three times what cocaine and heroin traffickers get.
The provincial judiciary has been “markedly out of step” with other Canadian benches and the scale of opioid abuse demands they mete out stiffer punishment, the B.C. Court of Appeal insists in a ruling using the language of a religious crusade.
In the decision, the court referred to comparable cases involving similar offenders — four from Ontario that ended in prison sentences ranging from 27 months to 40 months, and two from Saskatchewan in terms of 24 months and 30 months.
It cited as “helpful” a third more recent Saskatchewan ruling that declared purveyors of the potent pharmaceutical as destined for “perdition” for this “scourge” that is claiming lives daily.
In that case, a young first-time offender, whose dependency on OxyContin developed into an addiction to fentanyl, received a five-year prison sentence for two counts of trafficking in fentanyl in March 2016. One of his customers died.
Justice Mary Newbury argued a new range was needed in B.C. “to address the public’s legitimate sense of moral outrage over the systematic distribution of a pernicious drug responsible for grievous loss of life, immense and unsustainable strain on our public health system, and devastating impacts on the safety and integrity of our communities.”
Absent special circumstances, the three-justice division unanimously concluded first-time dealers should be sentenced to 18 months and up to three years or more. Comparable heroin and cocaine offenders receive six months’ imprisonment.
“As my colleague has clearly explained, fentanyl is a scourge,” Justice David Harris said. “(T)he continuing escalation in the number of fentanyl-detected deaths, the enormity of the total numbers of accidental overdosing, the increasing percentage of fentanyl-detected deaths as a proportion of the total, and the currently ubiquitous awareness of the risks posed by illicit fentanyl, in combination, justify a recognition of a very substantial increase in the sentencing range applicable to street-level dealing in fentanyl.”
The court pointed to no evidence that longer sentences reduced drug use or influenced the black market. I suggest effective drug policies and simple measures such as banning pill presses might be more effective than this kind of righteous condemnation.
The panel was split on applying the new sentence regime to Frank Stanley Smith, a 59-yearold aboriginal man convicted of peddling the powerful painkiller to an undercover cop outside the Carnegie Centre on Jan. 20, 2015.
The majority said it should not apply. Supported by colleague Peter Willcock, Harris said the offence must be put into the historical context of the crisis.
“The resulting picture is one of both a dramatic and rapid escalation in illicit drug deaths in 2015 and 2016, together with a dramatic increase in the proportion of fentanyl-detected deaths within the total,” he said.
“In my view, the landscape in 2015 and 2016 was transformed and is now qualitatively different from what it had been at the time of the offence in terms of the severity of the crisis and recognition of the role of fentanyl in it.”
Justice Newbury sternly disagreed, saying the crisis was already full-blown, pointing to public warnings in June 2013 and February 2014.
“The danger posed by such a drug (a mere two milligrams of fentanyl, about the size of a grain of salt, can be lethal) 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 said.
She slammed the notion that Smith’s professed ignorance of what he was selling was a mitigating factor or in any way reduced “his degree of moral blameworthiness.”
Smith was the eldest of 11 siblings raised in Carcross, Yukon, by a track repairman for the White Pass railway, and his wife.
Throughout his life, he held numerous jobs working as a carpenter, a landscaper, a special constable for the RCMP, a security guard, a cargo handler and in construction.
He became addicted to codeine-based Tylenol 3 after a serious knee injury suffered in a 1983 skiing accident. He ended up sustaining his habit in the Downtown Eastside.
Smith had no criminal record and maintained he was remorseful.
Supreme Court Justice Nigel Kent gave him six months’ imprisonment concurrent on the trafficking charges.
The Crown said he deserved more, but the majority dismissed the appeal. Newbury would have given Smith 18 months.