The courts should focus on treatment rather than jail time when sentencing addicts who traffic fentanyl at the street level to feed their own addictions, a Campbell River provincial court justice says.
Save jail sentences for higher level drug traffickers, Judge Barbara Flewelling says.
Judge Flewelling broke with precedent and declined to impose a jail sentence on Tanya Lee Ellis in Campbell River Provincial Court Nov. 29. Ellis pleaded guilty to trafficking in fentanyl on Nov. 26, 2019 and cocaine and fentanyl on Dec. 5, 2019. The Crown sought a concurrent three-year sentence on both counts but the defence argued that a suspended sentence with no or minimal conditions was appropriate.
“I agree with Ms. Ellis that it is appropriate to revisit the sentencing range for addicts who sell drugs at the street level,” Judge Flewelling says in her Reasons for Sentence.
After hearing from an expert witness, Dr. Ryan McNeil, the director of Harm Reduction Research for the Program in Addiction Medicine at the Yale School of Medicine, and a veteran RCMP officer with experience policing the drug scene in Vancouver’s downtown east side (DTE), Surrey, B.C.’s “Whalley Strip” as well as international crime group investigations, the judge suspended the passing of sentence on Ellis. The judge also placed Ellis on probation for 12 months as well as placing a number of additional standard behaviour and weapons prohibition and conditions. Ellis will also be required to complete 30 hours of community service, ideally service that includes some kind of remuneration, and if she consents, she may be referred for an assessmemt to determine the best medical treatment appropriate for her and, if she consents, she may be referred to counselling or life skills programs.
Ellis was charged with selling “spitballs” containing fentanyl to an undercover RCMP officer in Campbell River in November and December of 2019. The Campbell River woman has lived a troubled life, introduced to cocaine in Grade 8 and wrestling with addiction since her 20s. She has attended residential treatment seven times but always came home knowing that circumstances hadn’t changed and that she would end up using drugs again.
The judge declined to impose a conditional sentence for two reasons: Ellis has had difficulty complying with these types of orders in the past and the judge did not believe a jail sentence is appropriate.
In her reasons for judgement, Judge Flewelling says, “There is a difference in the moral culpability of someone selling small quantities of drugs in an unsophisticated manner primarily to support their own substance use and, in contrast, the mid- and high-level, organized, sophisticated drug supplier/dealer who is not necessarily addicted but profits from the sale of these drugs.
“This is the person who is most deserving of the full weight of the law and a sentence in those circumstances clearly requires a substantial emphasis on denunciation and deterrence and separation from society.”
Street level addict sellers are the “most visible, most marginalized and least sophisticated” drug dealers, according to the judge. They are the people who are selling opioids primarily to ensure their own supply of drugs and stave off the not-insignificant discomfort of withdrawal.
The judge noted the trend toward decriminalizing drug use and focusing more on treating addiction like an illness. Rather than imposing a sentence that serves as a deterrent, it is more appropriate to steer the subject towards treatment.
“My sentence is designed with a restorative focus,” the judge says. “I am imposing a sentence that will assist Ms. Ellis in her desire to associate with healthy people, learn other skills and tools that will assist her in managing her illness but, most importantly, assist her in realizing that she is a valuable and contributing member of this community.”
Ellis is deserving of appropriate evidence-based medical treatment, the judge says, hoping that, with assistance of counsel, Ellis will be referred to the appropriate medical professionals with expertise in evidence-based medical treatments.
Judge Flewelling recognized that her decision runs counter to precedence set by earlier decisions. Higher courts have held that deterrence and denunciation are to be given greater weight and emphasis in cases of drug trafficking and particularly those offences involving the sale of fentanyl, she noted.
However, there is case law that supports her view that the law as it relates to the sentencing of offences involving the sale of drugs at the street level, including fentanyl, may develop and grow if there are new developments or changes in our understanding of drug addiction.
“There is substantial evidence that is before me in this case that allows me to reach the conclusion that there has been a fundamental shift in how we understand drug addiction, and that society, governments, medical professionals, and many others, recognize that addiction is a complex health or medical condition caused by, or related to, numerous factors,” the judge says. “There have been increasing calls to decriminalize possession of illicit drugs and growing recognition that increased levels of resources are needed to effectively treat people suffering from a substance use disorder.
“This implicitly recognizes that, in isolation, jail sentences and the involvement of the criminal justice system has not been effective in stemming the flood of fentanyl in the drug supply and the increasing number of overdose deaths involving this drug. Indeed, it is clear that the death rate from illicit fentanyl related drug overdoses is increasing.”
It is expected that the Crown will appeal the decision.