The proliferation of fentanyl has required BC courts to respond in two ways – not just with the usual legal response to a new trend in criminal activity, but on a practical level as well. This eNews describes the approach BC courts have taken in sentencing those who traffic in fentanyl, and in dealing with high potency narcotics exhibits.
Legal issues
The way courts apply existing law to new situations is a process of evolution. Individual trial judges facing new issues analyse them and reach conclusions. Based in part on the differing facts and submissions they may be dealing with, trial judges may reach different conclusions on the new issue, resulting in a range of outcomes for the first year or so. But when the decision of a trial judge is appealed, a panel of three or more judges of the BC Court of Appeal consider the issue and reach a decision that trial judges must then follow, bringing greater certainty and consistency to the court process.
Concerning the appropriate sentence for street level fentanyl dealers, this evolution of the law culminated in March 10, 2017, when the BC Court of Appeal decided in R. v. Smith , 2017 BCCA 112, that such traffickers should receive sentences of between 18 and 36 months or longer (rather than the six to 12 month range used by the sentencing judge). While they disagreed on some aspects of the sentence imposed on Mr. Smith, all three appellate judges agreed that the Court should identify a higher sentencing range than may previously have existed, given the development of the public health crisis associated with illicit fentanyl consumption.
Justice Newbury said,
“... according to statistics prepared by the Canadian Centre on Substance Abuse, British Columbia has one of the worst, if not the worst, problems of Fentanyl abuse in Canada. This public safety emergency has prompted various media campaigns, public alerts and outreach efforts by police and social workers who are involved in seeking to contain this scourge ‒ yet Fentanyl abuse continues to claim lives every day in our communities. The danger posed by such a drug 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.”
Justice Harris said,
“… the 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. I agree that the range proposed by my colleague is appropriate.”
The Smith decision provided a clear statement to BC trial judges about the appropriate range of sentences for street level traffickers in fentanyl.
Practical issues
However, fentanyl and other high potency drugs pose not just legal issues but also practical health concerns for those working in BC’s courts. In BC, the Court Services Branch of the provincial government’s Ministry of the Attorney General is responsible for staffing and operating our courthouses, while the Office of the Chief Judge is responsible for administering everything related to the operation of the Court and its judicial officers, independently from government.
In December 2016, Lynda Cavanaugh, Assistant Deputy Minister, Court Services Branch, contacted court stakeholders, including the Public Prosecution Service of Canada and the private bar (lawyers), to ask that these stakeholders inform their members of the dangers of fentanyl and other high potency narcotics:
“As you are likely aware, fentanyl is a powerful synthetic opioid drug which is approximately 100 times more powerful than morphine. Fentanyl has become very popular in the sale of illicit street drugs as either a cutting agent, direct substitution for heroin, or in the manufacturing of counterfeit Oxycodone pills. Other illicit drugs such as cocaine and methamphetamine have been found to contain fentanyl or a fentanyl analogue. This may be an intentional mix on the part of the drug trafficker or may be as a result of an accidental cross contamination as the drug trafficker may be selling fentanyl and other illicit drugs.
Fentanyl can be absorbed through the skin and into the body by inhalation or ingestion. As we have seen in the media, exposure to fentanyl can cause confusion, drowsiness, and dizziness while overdose can cause loss of consciousness, respiratory distress, and death. Given the potency of fentanyl and other high potency narcotics, exposure to small quantities can lead to very severe consequences.”
ADM Cavanaugh requested that exhibits containing fentanyl or other high potency narcotics be submitted by photograph and/or a Certificate of Analyst (see section 51(1) Controlled Drugs and Substances Act). Pointing to the potency of these substances and the risks associated with overdose, she urged that submission of these substances as exhibits be minimized wherever possible, for the safety of the judiciary, court users, and Court Services Branch employees. In order to safeguard the health of court users, court staff, and judges, the Provincial Court has issued a Practice Direction (CRIM 10) that high potency narcotics themselves not be introduced as evidence in Provincial Court without a judge’s permission, which must be obtained before the exhibit is brought to the courthouse. The Practice Direction stipulates how the drug exhibit must be packaged and labelled if permission is granted. The Court Services Branch has taken additional steps to manage and mitigate the risks associated with the presence of high potency narcotics in courthouses. These steps include:
Photo credit: www.cbc.ca (CFSEU – NL)