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Milligan's Criminal Law Advisor | Trafficking Fentanyl

Milligan's Criminal Law Advisor | Trafficking Fentanyl

The British Columbia Court of Appeal establishes a range of sentence of 18-36 months for offenders who engage in low-level street trafficking of fentanyl

Milligan's Criminal Law Advisor

By Jeffrey Milligan

The British Columbia Court of Appeal recently decided an appeal brought by the Crown from a six-month sentence for street-level trafficking in fentanyl by a first time offender.

The respondent sold or tried to sell fentanyl to an undercover officer in Vancouver. When arrested, he was in possession of some 13 “flaps” of fentanyl (2.6 grams), 18 “flaps” of cocaine (4.2 grams) and several rocks of crack cocaine with a total weight of 3.2 grams. He was addicted to, or was dependent upon, Tylenol 3’s for some years.

He pleaded “not guilty” to the offences he was charged with, but changed his plea to guilty when the trial judge ruled that the drugs found in his possession after his arrest were admissible at the trial.

The Crown sought a sentence of 18 months and they submitted that the range of sentence went from a suspended sentence and probation to 36 months.

The trial judge found that general deterrence and denunciation were “paramount considerations” in sentencing the respondent. In this regard, the trial judge noted that fentanyl is some 20 to 50 times more potent than heroin. A dose of only 2 milligrams — the size of a grain of salt — is a fatal overdose.

The British Columbia dismissed the appeal, but unanimously held that the range of sentence for lower-level street trafficking in fentanyl should be increased to 18 to 36 months.

Newbury J.A., who dissented, would have allowed the appeal and imposed a sentence of 18 months.

She noted, at para. 44, that sentences for street-level trafficking in fentanyl in British Columbia were “markedly out of step” with those in other provinces. For example, in R. v. Klammer, 2016 ONSC 4038, 2016 CarswellOnt 9709 (Ont. S.C.J.), an Ontario judge imposed a sentence of 33 months prison upon a first offender with a history of addiction to painkillers. In R. v. Fyfe, 2017 SKQB 5, 2017 CarswellSask 34 (Sask. Q.B.), Danyliuk J. imposed a five-year prison sentence (less credit for pre-sentence custody) to a first offender whose addiction to oxycontin developed into an addiction to fentanyl. He pleaded guilty to two counts of trafficking. One of his customers died after buying a fentanyl pill from him.

British Columbia, Justice Newbury noted, had the one of the worst, if not the worst, problems with fentanyl in Canada. Thus, she proposed that the range for lower-level street dealers of fentanyl should start at 18 months. She did not specify what the upper end might be but suggested, at para. 45, that it

. . . might well exceed 36 months, especially if the offender has a substantial record involving the sale of fentanyl. The majority dismissed the appeal because public awareness of the grave dangers of fentanyl was not as great at the time the offence was committed as it was when the appeal was heard.

As Harris J.A., who wrote for the majority, put it at para. 48, fentanyl is “a scourge”. It, he said,

poses intolerable risks of accidental overdosing because it is so much more powerful than morphine.

Street drugs are often mixed with fentanyl and this greatly enhances its danger. To quote Justice Harris again, at para. 49,

. . . other drugs do not kill as frequently, accidentally or as unpredictably as fentanyl.

Nevertheless, since the offence was committed, as he put it at para. 50,

. . . there has been a profound and enormous escalation in the extent of the fentanyl crisis and public awareness of it.

The majority agreed with the range of sentence that Newbury J.A. proposed, but because the sentence that the respondent received was not demonstrably unfit at the time when it was imposed, they would not increase his sentence and dismissed the appeal.

R. v. Smith, 2017 BCCA 112, 2017 CarswellBC 643 (B.C. C.A.).

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