Fentanyl Sentencing: New Starting Point for Wholesale Trafficking

Friday, January 3, 2020

On November 28, 2019, the Alberta Court of Appeal came down hard on wholesale fentanyl traffickers and created a 9-year sentencing starting point. This means that a person convicted of wholesale trafficking or possession for the purpose of trafficking is facing 9 years in jail. Keep in mind, 9 years in jail is just the starting point. This number will increase or decrease based on aggravating and mitigating factors. However, courts are very hesitant to find many mitigating factors when it comes to a person convicted of trafficking in fentanyl. 

The 9-year sentencing starting point was the result of a decision in R v Felix, 2019 ABCA 457. In that case, Mr. Felix pled guilty to four counts of trafficking in fentanyl and cocaine. He was originally sentenced to a global sentence of 7 years in jail. The Court of Appeal found the sentence to be unfit and substituted a sentence of 10 years in jail. 

Fentanyl Sentencing: New Starting Point for Wholesale Trafficking

The Dangers of Fentanyl

Fentanyl is a synthetic opioid that is 20 to 40 times more toxic than heroin and 50 to 100 times more toxic than morphine. Over the past several years, this drug has been at the forefront of accidental overdoses and deaths throughout Alberta and across Canada. It is not just those who are voluntarily using fentanyl who are overdosing, it is also people who are unaware that the potent drug has been mixed in with whatever drug they are consuming.

Illicit fentanyl is manufactured in clandestine drug labs and often imported from China. The drug is cut into powder or cut into pills prior to being sold.

It is claimed that for an inexperienced user, a lethal dose is likely to be under one milligram of fentanyl. Data shows that between July 1 and September 1, 2019, there were 120 fentanyl-related deaths in Alberta. According to a report by Alberta’s health ministry, Calgary had the highest rate of fentanyl deaths per person.  

What is a sentencing starting point?

A sentencing starting point is exactly as it sounds – a place in which courts begin their sentencing position upon conviction. A starting point is said to be designed in order to give greater clarity to sentencing judges and to create uniformity and consistency in sentencing. Starting points are not to be confused with mandatory minimums and sentences can go above and below the starting point based on aggravating and mitigating factors. 

A starting point presumes an offender who has no criminal record and is of prior good character and how has been found guilty after trial. With respect to drug trafficking starting points, it is defined by two points:

  1. The dangerousness of the drug; and
  2. The scale of the offender’s involvement

Starting points provide flexibility, but not infinitely so. Moral blameworthiness is not measured on an infinitesimally fine scale. For example, characterization as wholesale will generally account for a large amount of drugs: R v Lau, 2004 ABCA 408 at para 37. Though extreme amounts may influence the sentence, starting points do not anticipate “an infinite gradation of facts matched to an infinite gradation of sanctions; the core of the gravity of the crime addressed is… the sale of a dangerous drug”: Ostertag at para 34.    

In R v. Ostertag, 2002 ABCA 232, the Alberta Court of Appeal confirmed the 5 year starting point for commercial trafficking of heroin. In doing so, it rested the rationales used in establishing that starting point and others at para 21:

Trafficking is a serious crime because it is a crime of calculation, or planning and deliberation, rather than a crime of opportunity. The behaviors involved in trafficking range from social trafficking, without a financial motivation, and minimal involvement such as handling only the cash in a low-level buy, to more sophisticated and determined operations designed to produce and avoid detection.  

Where a drug is more dangerous, such as heroin and now fentanyl, the gravity of sentencing is increased. The gravity must be reflected in starting points, as explained in R v. Phun at para 35:

The Crown has no suggested to us that heroin, which has been rare in the Province of Alberta in recent years, has resurfaced to the extent that it did in the later 70’s when many of the cases were decided. Nevertheless, heroin continues to be a very dangerous drug. It leads to other crime to support the very expensive addiction. As with cocaine, the profits which can be made from trafficking are enormous…. We must continue to preserve a hostile attitude towards heroin in Alberta. General deterrence and, to a much lesser extent, specific deterrence, must be the overriding factors in the imposition of sentences in cases involving heroin trafficking; especially those cases involving commercial trafficking on more than a minimal scale, such as occurred here. The Court has established a starting-point sentence of three years for cocaine trafficking at this level. Because of the greater harm caused by heroin trafficking, as is evident from reasons in Maskell, and other cases, a starting point sentence of five years … continues to be appropriate for offences involving lower level commercial trafficking of more than a minimal scale, such as that found here. This assumes that the individual has no prior record, and that there are no extraordinary circumstances. 

As courts across the country have described in increasingly stark terms, fentanyl (and now carfentanyl) is more dangerous than heroin and more destructive to human lives. As a result, the emerging view is that offences involving fentanyl should be sentenced more harshly than similar offences involving heroin. 

What is Wholesale Trafficking?

A question often asked when dealing with large volumes of drugs is what is the difference between commercial and wholesale trafficking? The distinction between the two is not always easy to draw but often is indicated by the volume of drugs trafficked. The volume can be determined by the amount seized by police, intercepted conversations, admissions made by participants and documents such as score sheets. 

With cocaine, operations above the multi-ounce level are often considered wholesale trafficking, though there are cases in Alberta in which it was found to be wholesale trafficking with only dozens of grams. 

The Court of Appeal in Felix found that wholesale trafficking of fentanyl would involve multiple hundreds of individual uses. The scale of the operation is assessed based on all drugs sold, not just those found during a search.

Cory Wilson is a criminal defence lawyer based in Calgary. If you have been charged with a criminal offence or are a suspect in a criminal investigation, call today for a free, no obligation consultation.