In a post to On The Wire titled Fentanyl Trafficking In Alberta dated March 30, 2019, I discussed the sentence of seven years imprisonment imposed on Patrick Felix by Justice Brian Burrows, in the Court of Queen’s Bench of Alberta, at Fort McMurray, for wholesale fentanyl trafficking indexed as R v Felix, 2019 ABQB 183. Justice Burrows rejected the Crown’s request to fix a guideline or “starting point” sentence of ten years imprisonment because that is a function of appellate courts, not trial courts. The Crown appealed.

1. Introduction

On November 28, 2019, the Alberta Court of Appeal released the opinion of a five member panel reported as R v Felix, 2019 ABCA 458. There were two issues. First, the case specific question whether the sentence of seven years was demonstrably unfit. Second, the broad policy question whether a guideline sentence should be adopted for wholesale commercial trafficking in fentanyl and, if so, what that guideline should be.

Writing for the unanimous panel, Justice Jolaine Antonio held, at para 73, that Justice Burrows erred in: (a) failing to adequately distinguish commercial from wholesale trafficking when selecting comparators; (b) failing to account for the accused’s role in the organization; and, (c) double-counting mitigation for the guilty plea. The errors resulted in a sentence that was demonstrably unfit.

Based on the primacy of denunciation and deterrence, the panel first considered the broad policy question and set a new guideline sentence of nine years imprisonment. Justice Antonio emphasized, at para 45, that the guideline “presumes an offender who has no criminal record and is of prior good character, and who has been found guilty after trial.”

Applying the guideline in the case specific analysis, Justice Antonio concluded, at para 79, that an appropriate sentence would be thirteen years. However, she went on to hold, at para 82, that the guilty plea and the positions of the parties were taken when sentencing policy in fentanyl cases in Alberta was unsettled. “I therefore consider,” Justice Antonio wrote, “that the sentence imposed should be bounded by the Crown’s position below, which was that a fit global sentence would be ten years.”

2. What is wholesale trafficking?

Justice Antonio acknowledged, at para 51, that the distinction between wholesale and commercial trafficking “is not always easy to draw”. She went on, at paras 54-6, to identify some “typical indicators” of the scale of a trafficking operation. The scale of wholesale fentanyl trafficking “would involve multiple hundreds of individual uses” and “should be assessed based on all drugs sold.” Another indicator is the nature of an operation that “may be found in its objectives and the way they are achieved”.

The distinction between wholesale and commercial trafficking is critical because, based on sentencing jurisprudence, the stakes of moral blameworthiness are higher for wholesale traffickers than commercial traffickers. Wholesale has been described as “sale for resale” and may include large-scale commercial operations. “Wide-scale trafficking of fentanyl affects communities as well as individuals with a direct and detrimental impact on the public interest,” Justice Antonio wrote at para 57. What, then, is the public interest underpinning the guideline sentence of nine years?

3. The Guideline Sentence

This is not the first time the Alberta Court of Appeal has adopted a “starting point” sentence in drug cases. Commercial cocaine trafficking on a more-than-minimal scale attracts a starting point of three years. Wholesale trafficking in cocaine attracts four and a half years. And a starting point of five years applies to low level commercial trafficking of heroin on a more-than-minimal scale. (See e.g., R v Rahime, 2001 ABCA 203; R v Chung, 1999 ABCA 86; and, R v Ostertag, 2000 ABCA 232)

In adopting the opinion in R v Nickel, 2012 ABCA 158, Justice Antonio held, at para 43, that the “starting point approach may be possible for offence categories that can be described as ‘of a type’, and thus have sufficient common definitive elements of actus reus and mens rea in their commission to permit identification of starting point sentences.” Justice Antonio was satisfied that this applied to wholesale trafficking of fentanyl “as it does to trafficking of other drugs on defined scales.”

The nine year guideline sentence applies to trafficking or possession for the purpose of trafficking fentanyl and its analogues. Analogues of a potency similar to fentanyl should be considered its equivalents for sentencing purposes. The panel specifically did not set a separate guideline for analogues of greater strength such as carfentanil. Justice Antonio suggested, at para 47, that “[t]rafficking an analogue of vastly greater potency, such as carfentanil, is an offence of greater moral blameworthiness and sentences can be adjusted accordingly.” The starting point is defined by two factors: (a) dangerousness of the drug; and, (b) the scale of the offender’s involvement.

(a) Dangerousness

In setting the five year guideline sentence for trafficking of heroin in R v Phun, 1997 ABCA 344 the Alberta Court of Appeal stated, at para 35, that it would “continue to preserve a hostile attitude towards heroin in Alberta.” It was predictable that the Felix court would also maintain a hostile attitude in fantanyl cases and it explicitly did so at para 49. “As numerous courts have described in stark terms,” Justice Antonio continued at para 50, “fentanyl is more dangerous than heroin, and more destructive of human lives and potential.” (See e.g., R v Aujla, 2016 ABPC 272; R v Huynh, 2017 ABPC 289; and, R v Frazer, 2017 ABPC 116)

(b) Role of the Offender

The wholesale trafficking guideline only applies to offenders involved at the wholesale level. Involvement at or below the commercial level is not subject to the wholesale starting point. It therefore remains the function of sentencing judges to determine whether the guideline applies and the degree to which it may have to be adjusted to account for an offenders’s degree of responsibility. “It will be a significant aggravating factor,” Justice Antonio said at para 62, “if the offender ranks higher in the hierarchy of the organization. Moral blameworthiness increases with an offender’s degree of control and responsibility.” Evidence of organizing supply chains, overseeing distribution methods and establishing infrastructure such as stash houses may indicate a degree of increased responsibility.

The nine year guideline is not inconsistent with sentences imposed in other jurisdictions. It closely follows, for example, decisions of the Ontario Court of Appeal that imply a nine year guideline and decisions of Ontario trial courts that suggest a range of nine to fourteen years. (See e.g., R v Sinclair, 2016 ONCA 683; R v Baks, 2015 ONCA 560; R v Vickerson, 2018 ONSC 671; and, R v Vezina, 2017 ONCJ 775)

4. Conclusion

During the sentence hearing before Justice Burrows, the Crown entered an affidavit sworn by Dr Graham R Jones. According to Dr Jones, fentanyl related deaths in Alberta roughly doubled each year in the six years preceding his report. In 2016, 343 deaths were recorded. Between January 1, 2017, and September 30, 2017, there were 400 fentanyl related deaths. Linear extrapolation suggests there were over 500 fentanyl deaths in Alberta in 2017. Those are the statistics relied upon by the Alberta Court of Appeal as informing the public interest in fentanyl sentencing policy. (See: R v Felix, 2019 ABCA 458, at paras 11 and 16)

However, in the Alberta Opioid Response Surveillance Report: Q3 2019. Alberta Health (December 2019), at p 4, more recent statistics show there were 120 apparent accidental poisoning deaths related to fentanyl in Alberta in the third quarter of 2019. By comparison, there were 156 of these deaths in the second quarter of 2019. From January 1, 2019, to September 30, 2019, 82% of deaths occurred in larger urban municipalities. Calgary (49) and Edmonton (42) had the highest numbers. In the first nine months of 2019, Calgary had the highest rate per 100,000 person years at 13.5 compared to the provincial average of 12.4 per 100,00 person years.

The point is this. Compared to 120 fentanyl related deaths in the third quarter of 2019, there were 180 deaths during the same quarter in 2018. According to Professor Rebecca Haines-Saah of the University of Calgary, however, the statistics alone do not tell the whole story. What is driving the number of overdose deaths down? Professor Haines-Saah told Natalie Valleau, a reporter with CBC News, she believes “the results of this report are due to the investment in supervised consumption sites by the previous NDP government.” (See: Natalie Valleau. Researcher says harm reduction services are working. CBC News. December 27, 2019)

What, then, is really in the public interest here? Another starting point sentence based on the deterrence model that human lives and potential are best protected by a hostile judicial attitude? Or, human lives and potential are best preserved, and human dignity enhanced, by the maintenance of harm reduction services based on a health care model?

So goes the war on drugs.