The Fentanyl Crisis and Courts
November 6, 2018
Deaths from illicit drugs have soared in Canada since 2012. The crisis is pressurizing the healthcare systems of the country, as fresh data from the Institute of Health Information reveals that hospitalizations and emergency department visits are on the rise. Notably, opioids include drugs such as cocaine, heroin, and fentanyl. The BC Center for Disease Control documents that Canada had at least 4000 deaths from fentanyl overdoses in 2017. From this figure, coroners have confirmed 1400 deaths were attributed to the province of British Columbia during the same year representing 43% increase from the previous year. Many deaths result from overdoses of the drug, which is currently available in various illegal vending centers across cities in British Columbia and larger Canada. Indeed, the trend is worrying and the criminal justice system of BC has come out aggressively to restore sanity in the province’s health system. Fentanyl traffickers have been prosecuted in large numbers recently after the courts set out the possible sentence terms allowable for such offences. The landmark case of R. vs. Smith (2016) set precedence for the sentencing scope for fentanyl trafficking between 18 and 36 months. Whether or not these measures will tame criminal in the province is a question to watch in the coming ears. Already, the effects of R v. Smith are being felt in the judicial landscape, as subsequent cases have referred to Smith largely to set the jurisprudence straight.
R. vs. Ajay Joon
In October 2017, a Provincial Court judge in British Columbia tried a 21-year-old man hailing from North Vancouver. The judge handed the accused a suspended sentence with three years’ probation in lieu of a jail term. According to the Crown, no special circumstances necessitated the judge’ decision hence Joon should have at least two years imprisonment.
Joon was a dial-a-dope dealer like many others who have faced harsh sentence terms recently. The judge, Joanne Challenger, sought to distance herself from the recent landmark ruling in R v. Smith in which the three-judge bench proposed a much stiffer punishment for fentanyl traffickers in a bid to protect the public from the deadly effects of the substance. According to Challenger, she was not ignoring the consequences of fentanyl in the community in the wake of the tragic deaths reported recently; rather, hers was an independent decision considering special circumstances surrounding the case.
In R v. Smith, the Court of Appeal ruled that first time traffickers of fentanyl should receive 18 months sentence scalable to three years if extraordinary circumstances exist (Provincial Court of British Columbia). This is harsher compared to first-time traffickers of cocaine and heroin who receive six months sentence term as a deterrent punishment. Looking at the Joon scenario, the Crown felt that there was nothing unique since he sold the three drugs at ago. The boy belonged to the middle-class but he sought to accrue riches quick by risking the lives of other people. Besides, Joon neither shown addiction signs to the substance nor indicated that he was suffering from emotional or psychological breakdowns to warrant the trafficking act. He was also not a teenager to be pardoned for naivety for failing to understand his actions under the circumstances. Therefore, the Crown felt that Joon should have received harsher treatment instead of the sentence suspension.
Despite the pressing arguments from the Prosecution, Challenger had her own reasons for extending leniency to the accused. She explained as follows,
“There is no evidence on this point before me but we are now aware that brain development carries on well past adolescence and as a result, during the late teen years and into the early 20s, the ‘executive function’ being the ability to exercise sound and considered judgment, of young people is impaired.” (Mulgrew, para 10).
The learned judge continued her argument,
“The courts have long recognized, without the benefit of the science behind it, the impact this has on behavior and the immense capacity of change during the early years of adulthood. It is important to keep in mind that Mr. Joon will always bear the stigma of having been convicted of a crime of moral turpitude and will face limitations on his employment and travel opportunities.” (Mulgrew, para 11).
Challenger recognized the call by the Court of Appeal that prison terms were important to address the moral outrage accruing from the fentanyl crisis. However, the learned judge pointed out the lack of evidence from the Court of Appeal’s ruling to the effect that longer sentences reduced substance use or shook up the black market for fentanyl. This loophole gave room for judges to consider the unique circumstances surrounding a case to decide whether to impose the harsh sentences. Challenger empathized with Joon who had shown regret for his actions. The poor boy had caused much stress to his family including one occasion on which his father’s car was impounded due to drug trafficking allegations. In addition, Joon was already having a job as a lot boy in some car dealer store and he was planning to train as an electrician soon. Challenger saw no need to frustrate the boy’s ambitions after being satisfied as to his commitment to reform his behavior. Joon was a boy of promising character and he lacked criminal history.
Judge Challenger disregarded completely the directives of the Court of Appeal in R v. Smith. This might appear outrageous but the learned judge considered the need to weigh between taking thousands of youths to prison and reforming their behaviors through alternative means. The availability of fentanyl is a menace to the Canadian and British Columbia society but law enforcement certainly is to blame for allowing the dealer networks to thrive.
There is no link between incarceration and crime reduction. In fact, even the judges in R v. Smith could not establish the link between sentencing traffickers and crushing the existing fentanyl networks. Situations arise where the accused is into the practice of trafficking because it is dominant in society. Indeed, a youth such as Joon had no compelling reason to traffic the deadly substance considering that his background is crime-free and he comes from a middle-class family capable of meeting all basic needs without trouble.
R v. Smith continues to be a compelling judgment but only repeat traffickers or seasoned ones should feel its harshness. First-time traffickers such as Joon should benefit from minimum sentencing or the leniency of the court, as Judge Challenger treated Joon. The primary focus should be weeding out fentanyl from Canada and British Columbia instead of jamming prisons with convicts that should otherwise be contributing positively to the society. There should not have been an appeal against Judge Challenger’s decision, as law enforcement had the chance to monitor Joon’s behavior. Without a doubt, one reformed trafficker would send a positive signal to other youths out here practicing the deadly lifestyle.
“BC Court’s Response to Fentanyl.” Provincial Court of British Columbia. 06 Nov. 2018,
Mulgrew, Ian. “Convicted B.C. Fentanyl Dealer Will Not Serve Jail Term Despite Appeals Court
Directive.” Vancouver Sun. 26 Oct. 2017, https://www.google.com/amp/s/vancouversun.com/news/local-news/convicted-b-c-fentanyl-dealer-will-not-serve-jail-term-despite-appeals-court-directive/amp Accessed 06 Nov. 2018
“Public Health Emergency in BC.” BC Center for Disease Control. 06 Nov. 2018, bccdc.ca