B.C.’s top court sets stiffer sentences for fentanyl dealers

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British Columbia's highest court has ruled drug dealers pushing fentanyl should receive sentences of up to 36 months – three times longer than other street-level dealers – to recognize the "scourge" of the deadly synthetic opioid.

The judgment from the B.C. Court of Appeal is the latest in a series of rulings as courts in several provinces grapple with whether dealers of fentanyl, which has fuelled a worsening overdose crisis across the country, deserve stricter penalties than those trafficking cocaine or heroin. Several judges in lower courts have already ruled that such sentences should be longer.

The B.C. Appeal Court said street-level fentanyl dealers should receive sentences of between 18 and 36 months, or longer, rather than the current range of six to 12 months.

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"Fentanyl is a scourge," wrote Justice David Harris. "It poses intolerable risks of accidental overdosing because it is so much more powerful than morphine. … Recognizing a different and markedly higher sentencing range for street-level dealing in fentanyl turns on the enhanced risks associated with that activity and the individual responsibility of dealers given those risks and public knowledge of them."

The case revolves around Frank Smith, a 59-year-old Yukon man who was convicted of possession of cocaine and fentanyl for the purpose of trafficking after he was caught two years ago trying to deal drugs to an undercover officer in Vancouver's Downtown Eastside. A B.C. Supreme Court judge sentenced Mr. Smith to six months in prison.

The Crown appealed the sentence, arguing that it was demonstrably unfit given how dangerous fentanyl is. The appeal court upheld the six-month sentence because, when Mr. Smith was charged in January, 2015, the full extent of the fentanyl crisis was not yet known. But the court made it clear dealers charged in the current environment should be dealt with more harshly.

Fentanyl, a drug that was once largely restricted to hospitals and people living with chronic pain, has been cut into a growing percentage of street drugs for its low cost and high potency. In B.C. and Alberta, the two provinces hardest hit by the overdose crisis, nearly 900 people died of fentanyl-related overdoses in 2016.

Adrienne Smith, a drug-policy lawyer in Vancouver, said the B.C. Appeal Court viewed the higher sentencing range as appropriate because of fentanyl's demonstrably dangerous effect and is essentially treating the fact that the drug is fentanyl as an aggravating factor.

The ruling is only binding in B.C. but other jurisdictions may choose to follow it.

"We can expect an inflationary effect in fentanyl-related sentencing as a result of this decision," Ms. Smith said.

A Court of Queen's Bench judge in Saskatchewan who presided over the case of a man who sold fentanyl to a man with mental-health issues, contributing to his fatal overdose, suggested in a January ruling that an appropriate starting point for fentanyl-related street-level offences is two years.

"Circumstances may carry an offender's actual sentence above or below that point, although to go below two years will likely require an exceptional situation," Justice Richard Danyliuk wrote.

"This is not intended to be a minimum sentence. … My analysis is akin to the well-established starting point from our Court of Appeal for sexual assaults with significant aggravating factors."

The harm caused by fentanyl is now widely known, the judge said, and dealing in illicit fentanyl "needs to be discouraged in the strongest fashion."

In Alberta, the Edmonton Police Service in December charged an accused dealer with manslaughter relating to the death of a man from a fentanyl overdose – the first time the service has ever taken such a step.

In Kelowna last summer, a B.C. Supreme Court judge declined to consider the presence of fentanyl an aggravating factor when sentencing a man convicted of trafficking cocaine and the synthetic opioid. Fentanyl is a Schedule 1 drug like cocaine and heroin, Justice Hope Hyslop said, and must be treated the same.

Eugene Oscapella, an Ottawa lawyer who teaches drug policy at the University of Ottawa, said while criminal law can be part of the overall drug strategy, it won't ultimately fix what is a public-health issue.

"There's nothing wrong with using the criminal law [in drug crimes] sometimes, as long as it doesn't become the principal mechanism," he said. "Fentanyl is a public-health crisis, primarily, and we need to deal with it through issues like better prescription practices, perhaps heroin-maintenance programs, those sorts of things."

Caitlin Shane, a drug-policy campaigner with the Pivot Legal Society in Vancouver, said that, historically, harsher sentences have proven ineffective at deterring drug production, consumption, availability and problematic drug use.

"It is prohibition that allows the unregulated illicit-drug market to thrive, and at a time where that market is flooded with powerful synthetic opioids like fentanyl and carfentanil, we are seeing a dramatic uptake in overdose deaths," she said.

"This is why it is necessary to move away from a prohibitive model in the context of drug use and toward a public-health framework that meaningfully addresses the underlying causes of addictions."