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SENTENCING - Controlled drugs and substances - Possession for the purpose of trafficking - Fentanyl - Imprisonment - Sentencing precedents or starting point - Seriousness of offence

Tuesday, April 18, 2017 @ 8:24 AM  

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Appeal by the Crown from the sentence imposed on Smith. The accused was a street-level trafficker who tried to sell drugs to an undercover police officer. He was arrested and was found to have 13 flaps of fentanyl, 18 flaps of powdered cocaine and several rocks of crack cocaine. The accused pleaded guilty to one count of possession of cocaine and one count of possession of fentanyl for the purpose of trafficking. The 59-year-old accused was a first time offender and had an addiction to Tylenol 3. Two days after his arrest for the subject offences, the accused was arrested for disobeying the terms of his bail and he was found in possession of cocaine and fentanyl. He was arrested some time later in the same location in possession of drugs. The accused claimed that he was not aware that he was in possession of fentanyl, but thought that he had heroin. The accused was sentenced to six months’ imprisonment. The Crown argued that the sentencing judge erred in principle, as the mitigating factors, which included the fact that the accused was a first time offender and had an addiction or a dependence on Tylenol 3, should have been far outweighed by the sentencing goals of deterrence and denunciation. The Crown argued that the error led to a demonstrably unfit sentence, particularly given the inherent danger of accidental death associated with consuming fentanyl.

HELD: Appeal dismissed. The sentence was not demonstrably unfit given the circumstances regarding fentanyl as they existed in January 2015, when the offence was committed. Between the date of the offence, January 2015, and the date of sentence, November 2016, there had been a profound and enormous escalation in the extent of the fentanyl crisis and public awareness of it. Accordingly, the Court identified a higher sentencing range than had previously existed, given the development of the public health crisis associated with illicit fentanyl consumption. A sentencing range of 18 to 36 months, and possibly higher, was appropriate. Sentence: Six months’ incarceration -- Controlled Drugs and Substances Act, s. 5(2).

R. v. Smith, [2017] B.C.J. No. 471, British Columbia Court of Appeal, M.V. Newbury, D.C. Harris and P.M. Willcock JJ.A., March 10, 2017. Digest No. TLD-Apr172017005