Are there no prisons? Are there no workhouses?
Has Dickensian justice returned to this province, with the Victoria Police Department mounting an undercover operation against the homeless and the B.C. Supreme Court blithely ordering imprisonment?
Three years after the B.C. Court of Appeal embarked on a mindless strategy to combat the opioid crisis with incarceration, overdose deaths are at record levels and the public health crisis rages on. One recent victim of this approach was a 53-year-old homeless woman struggling with addiction, sentenced to 18 months in jail for peddling .02 grams of heroin, fentanyl and caffeine.
Justice Kenneth Ball should have been sentencing some actual organized crime “dealer” rather than a woman in need of help.
Jeannie Frances Kielt was living in a tent before she was packed off to a cell.
I can see why the Victoria Police Department would target her — a poor woman, hobbled by health issues, middling to support her own habit, sitting under a tree with a pal.
What happened to focusing on
social clubs filled with Sopranos?
Kielt tried to impress upon the court that her homelessness was a “hell.”
Her partner had a sleeping disorder and she constantly worried about the effects of fentanyl and its death-dealing consequences for her and her friends.
The plea fell on deaf ears and a stone heart.
“Notwithstanding her knowledge of the presence and potential dire consequences from the use of fentanyl by consumers, she still sold a mixture containing fentanyl to a stranger,” the justice lectured, as if Kielt herself was buffing the product in some secret subterranean lab.
He then went on to quote from a precedent-setting March 2017 appeal.
In R. v. Smith, a three-justice division unanimously concluded that the overdose epidemic required a punitive deterrent to combat the abuse of the powerful painkiller fentanyl.
The court decided first-time “fentanyl” dealers should be incarcerated for between 18 months to three years, or more, unless there were extraordinary circumstances. Comparable heroin and cocaine offenders receive a third the punishment — six months imprisonment as a similar deterrent.
Using the language of a religious crusade, the province’s highest bench told judges the death toll was so alarming that prison terms were needed “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.”
It was hokum then, and it’s still hokum.
The court cited no evidence that longer sentences reduced drug use or influenced the black market.
Effective housing, social and drug policies would have been a far more responsible response to the crisis than righteous condemnation.
Make no mistake — the court knew who would bear the brunt of this judicial whipping: the poor, the addicted, the vulnerable.
The precedential decision involved Frank Smith, a 59-yearold Indigenous man who seriously injured his knee in a 1989 skiing accident.
The eldest of 11 siblings raised in Carcross, Yukon, his father was a track repairman for the White Pass Railway, and his mother a janitor at Carcross Elementary School.
Leaving school after Grade 10, Smith worked for several years with his dad on the railways and completed three years of vocational training in carpentry and small-engine repair.
He was married for five years and maintained a positive relationship with a daughter, who the judge noted was “of remarkable accomplishment.”
Smith held numerous jobs throughout his life, working from time to time as a carpenter, a
landscaper, a special constable for the RCMP, a security guard, a cargo handler and in construction.
His life was ruined by an addiction developed because of chronic pain, a catalyst in this epidemic.
He didn’t drink, but became hooked on codeine-based Tylenol 3 and ended up sustaining his habit in the Downtown Eastside.
Smith had no criminal record until January 2015, when the need to feed his growing addiction caused him to be arrested twice selling products that contained fentanyl.
He was busted yet a third time for breaching bail conditions.
Smith insisted he did not realize he was selling fentanyl until after he was charged, and appeared suitably chagrined and truly remorseful.
Street dealers like him or Kielt often have no idea what they are actually selling — cocaine, heroin, saccharine, baby laxative, or fentanyl.
Still, the appeal court said, “ignorance or wilful blindness about whether the substance being trafficked is fentanyl or contains fentanyl is not mitigating.”
Like Smith, Kielt’s real crime is being traumatized, mentally and physically in pain, and poor.
She was born in Ontario to a family racked by addiction and ultimately raised by her grandmother. She completed high school and some post-secondary education.
Kielt had a partner for about five years in Ontario before they moved to Victoria in 1992. That relationship ended and she has been with her current partner for 14 years.
She was a cleaner for a few years, but she has been unemployed for a long, long time.
Understandably, Kielt was anxious and stressed about being homeless, but she has not engaged in treatment or counselling since 2002.
And she had a short criminal record — a couple of very dated, similar offences and also six convictions for theft under $5,000, spanning the years from 2009 to 2016 — Ball noted in his preCOVID oral decision.
“In this case, the potential harm caused by dangerous opioids is well described in R. v. Smith, and regularly in news presented on the television and radio in this jurisdiction,” he explained. “This case occurred in an area of Victoria where drug trafficking takes place at a level and with substances such as fentanyl that impose substantial risk of significant harm or death in the community. That is, at base, a very aggravating circumstance in this case.”
He concluded, “18 months incarceration is a fit and proper sentence.”
People suffering from chronic pain, trauma, poverty and other vulnerabilities turn to drugs to anesthetize themselves — turning them into criminals exacerbates their troubles.
You can practically hear Scrooge. “Are there no prisons? Are there no workhouses?”
It’s Victorian.