Fentanyl is a synthetic opioid one hundred times more potent than morphine used to treat patients with severe and chronic pain. Side effects include respiratory depression, addiction, coma and death. Fentanyl is a Schedule I drug in Canada under the Controlled Drugs and Substances Act, SC 1996, c 19. A few street names for fentanyl or fentanyl-laced heroin are Dance Fever, Apache and China Girl. In an article titled Dark web dealers voluntarily ban deadly fentanyl published by The Guardian on December 1, 2018, London-based journalist Mark Townsend reported that major suppliers have classified it “alongside mass-casualty firearms and explosives as commodities that are considered too high-risk to trade.”

1. Introduction

The Alberta government recently released the Alberta Opioid Response Surveillance Report (2018) by the Analytics and Performance Reporting Branch of Alberta Health. Since January 1, 2016, a total of 1,586 people in Alberta died from an apparent accidental poisoning death related to fentanyl (347 in 2016, 566 in 2017 and 673 in 2018). On average, 168 individuals died each quarter in 2018. The quarterly average in 2017 was 142. The total number of Albertans who died from fentanyl overdoses approached two a day in 2018. The Calgary region continued to have the highest rate at 18.8 per 100,000 people.

On March 21, 2019, the U.S. Department of Health and Human Services, National Center for Health Statistics, published a report titled Drug Overdose Deaths Involving Fentanyl, 2011-2016. The report concluded that the number of drug overdose deaths involving fentanyl among U.S. residents was stable in 2011 (1,663) and 2012 (1,615) but dramatically accelerated from 1,919 deaths in 2013 to 18,335 in 2016. The numbers and rates increased for all sex, age, and racial and ethnic subgroups, as well as most public health regions. In 2016, fentanyl was responsible for nearly 29% of all drug overdose deaths making it the deadliest drug in America.

2. Sentencing In Fentanyl Cases

During 2015, Patrick Felix was running a lucrative drug trafficking enterprise in Fort McMurray, Alberta, specializing in fentanyl and cocaine. Sales to an undercover police officer led to his arrest and he eventually pleaded guilty to four counts; two counts of trafficking fentanyl and two counts of trafficking cocaine. The sales to the undercover officer involved a total of 2,385 tablets of fentanyl and 90 ounces of cocaine with a total street value between $300,000 and $464,000.

On March 14, 2019, Justice Brian Burrows, in the Court of Queen’s Bench of Alberta, sentenced Felix to 7 years imprisonment on the fentanyl counts and 4 years concurrent on the cocaine counts in a judgment reported as R v Felix, 2019 ABQB 183. I will focus my following comments on the fentanyl trafficking.

Punishment in Canadian jurisprudence is predominately left by Parliament to the discretion of sentencing judges. The maximum punishment for trafficking a Schedule I substance is life imprisonment under s 5(3)(a) of the Controlled Drugs and Substances Act. But the statute does not prescribe a minimum punishment. The Canadian judiciary has therefore developed a range of sentences guided by the fundamental principle that “[a] sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender” under s 718.1 of the Criminal Code.

In Alberta, the courts refer to a guideline decision that determines a range of sentence as the “starting point” sentence. An example, unrelated to this case, is the “starting point” sentence for drug trafficking beyond a minimal scale that I have discussed in previous posts. Trafficking in cocaine, other than social trafficking or a one-time transaction that is not part of a commercial operation, attracts a guideline or “starting point” sentence of 3 years imprisonment. Sentences increase or decrease from the guideline depending upon aggravating and mitigating factors, and unusual circumstances. (See: R v Getty, 1990 ABCA 51; and, On The Wire. Sentencing Dial-A-Dopers In Alberta. September 28, 2018)

What should the guideline sentence be for fentanyl trafficking? The question has not been considered by the Alberta Court of Appeal. In Felix, Justice Burrows rejected the Crown’s invitation to fix a “starting point” of 10 years imprisonment, at para 76, because “establishing starting points is uniquely a function for appeal courts not trial courts”. (See: R v Proulx, [2000] 1 SCR 61 per Lamer CJ, at para 86)

However, the Crown’s submission that a “notional starting point” of 10 years would be appropriate is not significantly beyond the range that emerges from recent authorities. In Alberta, a range from 5 years to 7 years is established by cases such as: R v Pico, 2017 ABQB 863 (5 years); R v Adams, 2018 ABPC 82 (6.5 years); and, R v Aujla, 2016 ABPC 272 (7 years). The range becomes more elastic when authorities from other jurisdictions are factored into the analysis. Sentences of 8 years and 9.5 years have been imposed by courts in British Columbia and Ontario: R v McCormick, 2017 BCPC 22 (8 years); and, R v Sidhu, June 16, 2017, Ont CJ, Unreported (9.5 years).

It is also clear that the 7 year sentence imposed in Felix may be closer to a “notional starting point” of 10 years than expressly stated in the reasons. There were a number of mitigating factors that impacted quantum – some more compelling than others. Justice Burrows summarized them this way, at para 81:

“Mr Felix’s sentence must also respond to the mitigating effect of his guilty plea, that he has been compliant with the bail conditions imposed on him for a significant length of time, that he spent just over a month in custody after his arrest, that he is genuinely remorseful, that he has no criminal record, that he is considered by many members of his community to be a valuable member of it, that he has overcome substance abuse problems which existed at the time of his offences, and that, since he was charged, he has demonstrated that he wishes to and is able to commit himself exclusively to socially positive pursuits.”

Let’s single out two things in mitigation. First, the guilty plea. The plea was entered on the day a five week trial was to commence – after a preliminary inquiry, an unsuccessful Jordan application (delay motion) and a challenge to one of the counts in the Indictment reported as R v Felix, 2018 ABQB 18 and R v Felix, 2018 ABQB 128. Nonetheless, Justice Burrows held, at para 43, that the guilty plea was mitigating as it saved the time and cost associated with a five week trial. Second, the absence of a criminal history. Evidence of previous good character was contained in seventeen letters from community members described by Justice Burrows, at para 35, as “an impressive collection”.

The difficulty is that Justice Burrows did not position the mitigating factors in the quantum analysis. In other words, these questions are unanswered: What was the guilty plea worth? One year? Eighteen months? What was Felix’s previous good character worth? Six months? One year? It is relatively safe to infer that the sentence was closer to 9 years before mitigation. If so, that would place Felix’s sentence in the middle of an 8 to 10 year range – or, put another way, close to a 10 year “starting point”.

3. Conclusion

Canadian prosecutors have been pressing the courts for higher sentences in fentanyl cases as society’s response to traffickers of a pernicious drug. The sentence urged by the Crown in Felix is the next incremental step to a guideline sentence. And it appears the judiciary is inching in that direction. What, then, is next? A test case of manslaughter where the fentanyl user succumbed to serotonin syndrome? Death has already passed through the United States District Court for the Western District of New York at Buffalo. On February 6, 2019, Carlique DeBerry was convicted of distribution of fentanyl causing death and sentenced to 20 years imprisonment. (See: Maki Becker. Drug dealer sentenced to 20 years in prison in fatal fentanyl overdose. The Buffalo News. February 7, 2019)

So goes the war on drugs.