Ian Mulgrew: Fentanyl Prison Sentences Are Dickens’ Mistake Rejected By BC Court

Analysis: Appeals court panel forced to review sentencing range after input from multiple interest groups


A division of the BC Court of Appeals has tiptoed back from the shameful 18-month minimum jail sentence it recommended five years ago for fentanyl trafficking to combat the nascent opioid crisis.

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the contested judgment of 2017 failed to stop rising deaths from toxic drugs and has caused injustice: jailing homeless women, a sick man in his 50s who requires weekly dialysis, a 19-year-old with no priors backed by his family…


A handful of groups weighed in on the recent appeal in hopes that the province’s top court would end their Dickensian approach: the Vancouver Area Drug Users Network, the Canadian Drug Policy Coalition, the Independent Society of Criminal Defense, We Wai Kai First Nation, and Coastal Legal Action and Education Fund.

The latest case forced the panel to review the sentencing range. and wrestle with the evidence that Most of the most marginalized people struggling with substance use disorders survive by “partnership” (buying and selling small amounts of drugs), using any small profits to meet their own needs.

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And the police take advantage of them.

While chiding the judge for errors of reasoning, the panel seemed to agree that the minimums were not working, sugar-coating their rejection of jail time and the unanimous decision that parole was appropriate.

“In my view, the (Crown) appeal of the sentence should be allowed,” Judge Joyce Dewitt-Van Oosten wrote.

“Our sentence analysis must be guided by the (2017 R vs. Smith), which gives a significant effect to the seriousness of the crimes committed by (Tanya Lee) Ellis and the palpable risk of serious harm that these crimes carry for the people who buy fentanyl from street dealers, for their families and for the communities in which who live. they live.”

Guided, and then set aside.

This 43-year-old Campbell River mother of two pleaded guilty to selling fentanyl spit balls in December 2019 to an undercover police officer. She had a similar background.

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Provincial Court Judge Barbara Flewelling accepted evidence that imprisonment was not a deterrent and wrongful forced treatment.

Dr. Ryan McNeil, director of harm reduction research for the addiction medicine program at Yale School of Medicine, said court-ordered counseling was ineffective and did not address underlying causes.

It doesn’t stop people from using or selling drugs, he added, and the post-release period is one of the biggest overdose risks because people have lost tolerance.

Ellis grew up in an abusive home and experimented with drugs in grade 3 and crack in grade 8.

Like most of these people, her life was marked by trauma, homelessness and extreme poverty. He went to residential treatment seven times.

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I do not help.

Imposing abstinence conditions was unrealistic and caused people to fail, McNeil argued.

“Jail sentences and the involvement of the criminal justice system have not been effective in stopping the onslaught of fentanyl in the drug supply and the rising number of overdose deaths related to this drug,” Flewelling conceded.

It suspended the sentence and placed Ellis on 12 months probation instead of the three-year prison sentence requested by the prosecutor.

It will help her associate with healthy people, Flewelling explained, learn skills, manage her illness and also help her realize that “she is a valued and contributing member of this community.”

The 2017 decision seemed wrong then and even more so now.

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With it, Judge Mary Newbury unleashed a crusade against a “scourge” backed not by science but by discredited and failed drug war propaganda.

“The danger that such a drug represents must surely inform the moral culpability of the criminals who sell it on the street, and obviously increases the seriousness of the crime beyond even the seriousness of drug trafficking such as heroin and cocaine,” he lectured.

Judge David Harris agreed, saying the risks posed by illicit fentanyl “justify the recognition of a very substantial increase in the sentencing range applicable to street-level fentanyl trafficking.”

The criminal justice branch, police, first responders and others helped demonize the powerful anesthetic, claiming that overdoses could occur through the skin on touch or if fentanyl was present in a room, by breathing.

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There was no science to back up such claims, and the appellate court’s unilateral decision to prescribe a minimum sentence as a cure was arrogance.

It is the job of parliament to write criminal laws and establish punishments, not the judiciary.

The fear-mongering that has accompanied this epidemic is identical to the misinformation spread in the 1990s about crack (which is just cocaine and baking soda) that sparked America’s three-strikes laws that packed prisons with minor offenders.

Now, would the court like to affirm that there has been a fundamental change in society’s understanding of drug addiction and street dealing that does not require incarcerating offenders?

“The Smith range is a tool, not a judicial straitjacket…In concluding that a suspended sentence and probation is a proportionate and therefore appropriate sentence in this case, I have placed considerable weight on the fact that Mrs. Ellis has already served eight months in prison. her sentence of 12 months (probation) and that jailing her is likely to substantially interfere with her rehabilitation…

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“Given the gravity of Ms. Ellis’s crimes, deterrence and denunciation are current issues in this case. In this context, it is appropriate to impose on Mrs. Ellis a conditional release order substantially longer than the one imposed in the Provincial Court. In my opinion, no less than a three-year probation order is required.”

From 18 months in jail to probation? The drug crisis got worse and the court put a lot of people in jail, think about what happened to them? Have you ever wondered about the effects of your minimum prayer instruction? Will it be rescinded next year when possession of fentanyl is allowed in BC?

Retired Judge Bruce Cohen, the court’s media liaison, responded that such questions “can be answered by the court only through its rulings, which are based on the particular circumstances of the case.”

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