How do you solve a problem like fentanyl?

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Not a day goes by when we do not read stories about the carnage that fentanyl is wreaking on our communities. The BC Court of Appeal has issued a stern warning for those who traffic in fentanyl: the starting point for sentencing is a jail sentence in the range of eighteen months. And given the evidence and attention about fentanyl deaths, it’s hard to cry foul at these guidelines.

As a result of the severe consequences of fentanyl trafficking, the BC Government has been repeatedly asked about what they are doing to address the situation. Some have suggested a pro-social approach, enhancing opportunities for rehabilitation for drug users. Others have pointed to studies that have shown that decriminalizing hard drugs actually leads to a decrease in deaths associated to those drugs. Others still think the answer is to arrest all the traffickers, round them up, and throw them in jail.

Our provincial government has recently been eyeing tougher, possibly administrative penalties for fentanyl trafficking.

I, of course, am not of the view that you can arrest a problem like this away.

Another avenue that has been explored, and is occurring in communities throughout Canada, has been to charge those who are trafficking in fentanyl with manslaughter where it leads to a death. A creative approach, to be sure, but one with significant hurdles in the evidence that will be called and the overall complexity of a trial.

So how do you solve a problem like fentanyl?
I don’t purport to have the answers, but I think there is a right track and a wrong one. I’m opposed to using jail sentences to solve problems borne out of addiction and mental health and other social problems. Many drug users will sell to support their habits, and the approach of locking everyone up regardless of their circumstances runs a significant risk of turning those who are victims of the drug trade into criminals.

Social science research tends to support the theory that the more you label a person as a criminal the more they are going to act to fit that profile. It’s a self-fulfilling prophecy. And don’t even get me started on the sparse resources for addiction and mental health treatment in jails.

Jail is just not the answer. 
While the government and the appellate courts seem to be coming down on the side of “lock ‘em up and throw away the key,” our lower courts have taken a more reasoned approach. In a very unusual case, a BC Provincial Court judge has given a man who pleaded guilty to fentanyl trafficking a three-year suspended sentence. Three years of probation. No jail.

I commend this judge for her decision. It was brave, but necessary. I think her approach to the sentencing task she faced was well-reasoned. It is clear she considered the relevant authorities but found that not every person who trafficked fentanyl needs to be locked up. Rather, she applied the rationale from another line of authority that has developed in our higher and lower courts related to “exceptional circumstances.” Ultimately, she concluded that despite the awful nature of fentanyl trafficking, a suspended sentence was appropriate:

[45]        When members of the public consider the sentence which will be imposed in this matter, the court should not be seen to be minimizing the very grave consequences flowing from the presence of fentanyl in our communities and the continuing tragic loss of life it is causing.  The courts are also fully conscious of the toll fentanyl is taking of our first responders, medical system, and community based support services.  People who manufacture and distribute fentanyl are utterly lacking in morals.  As was said in Smith, it is a scourge.  Those who traffic in opiates, cocaine, and synthetic drugs such as methamphetamines have long been described by the courts as “Merchants of Misery”.  I think it is now apt to describe those who traffic in fentanyl as “Merchants of Death”.

[46]        Despite this courts’ awareness of the above issues and the pressing need for sentences which will serve to denounce and deter those introducing fentanyl into our society, the court must still carefully weigh and consider all the principles of sentence as set out in the Criminal Code and CDSA, the case law which has interpreted those principles, the circumstances of the offence and the offender and impose a sentence which will best serve the overarching fundamental purpose of sentencing which is “to protect society and contribute…to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions…”

I have to agree. 
The purpose of our entire legal system, and in particular the criminal justice system, is not to punish those who do wrong. It is to protect society, contribute to respect for the law, and to maintain a just, peaceful, and safe society. Locking people up in jail taxes judicial resources and strains the public purse. This is exacerbated in cases where people who no longer pose a risk to the public and who are living a pro-social life are stuck behind bars.

There is no sense in removing a contributing member of society from the community when they no longer pose a risk to the public.

I encourage more judges to take this approach. The state cannot arrest its way to a solution to the fentanyl crisis. While jail sentences may be seen as a deterrent, there is a greater deterrent effect when people know the court will consider mitigating factors if they are ever arrested for their conduct, such as whether they leave the drug trafficking trade, change their lives, and get things back on track.

Further, a suspended sentence leaves a person with a criminal record. 
It puts a person on a period of strict probation conditions, with which they must comply or it will be converted to a jail sentence. The danger of violating a suspended sentence is more significant, legally speaking, than the danger of misbehaving in prison.

And the threat of an eventual arrest is real: fentanyl trafficking is an indictable offence with no limitation period. A person can be charged years later. This approach, taken by a sensible and compassionate judge, recognizes that changing one’s life for the better is an exceptional task, and removing oneself from the drug trade is better for society than sitting in a jail cell, costing the public money and resources that could be used to treat addicted individuals rather than punish those who are not truly deserving of that punishment.

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