R. v. Ellis, 2021 BCPC 280

Citation: R. v. Ellis 2021 BCPC 280 Date: 20211129 File No: 41820-2-C Registry: Campbell River IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. TANYA LEE ELLIS REASONS FOR SENTENCE OF THE HONOURABLE JUDGE FLEWELLING Counsel for the Crown: B. Landsdowne Counsel for the Defendant: S. Runyon Place of Hearing: Campbell River , B.C. Date of Hearing: February 3, 4, and March 15, 2021 Date of Judgment: November 29, 2021 INTRODUCTION

[ 1 ] On February 3, 2021, Ms. Tanya Ellis pleaded guilty to trafficking in Fentanyl on November 26, 2019 (Count 3) and Cocaine/Fentanyl on December 5, 2019 (Count 4) contrary to s. 5 (2) of the Controlled Drugs and Substances Act (the Act). A Gardiner hearing commenced on that date and continued on February 4, 2021 and March 15, 2021. Written submissions from both parties were subsequently received on March 30, April 23, September 13 and 20, 2021.

POSITIONS OF COUNSEL AND ISSUES [ 2 ] Emphasizing principles of deterrence and denunciation particularly in the trafficking of Fentanyl, Crown counsel seeks a concurrent three year sentence on both counts. [ 3 ] Ms. Ellis asserts that a suspended sentence with no or minimal conditions is appropriate. Most importantly, Ms. Ellis asks this court to revisit the efficacy and utility of deterrence and denunciation and the use of carceral sentences involving street-level trafficking and drug use. In support of her position, Dr.

Ryan McNeil, the Director of Harm Reduction Research for the Program in Addiction Medicine at the Yale School of Medicine, provided expert opinion evidence. [ 4 ] Crown counsel did not object to Dr. McNeil’s qualifications to give expert evidence in the areas sought, but says that his evidence is neither relevant nor necessary and is thus inadmissible. At the conclusion of a voir dire on this issue, I ruled that Dr. McNeil’s expert opinion was both relevant and necessary to assist me in understanding the underlying factors that lead people with the same or similar backgrounds as Ms.

Ellis to use and sell drugs, and how rehabilitation can best be accomplished. THE AGREED STATEMENT OF FACTS [ 5 ] On November 20, 2019, an undercover police officer met with a known drug user to arrange an introduction to someone selling drugs. The drug user advised the officer that a girl named “Tanya” had “good quality drugs”. The drug user made arrangements for the officer to meet “Tanya”, describing the officer as a new customer. Tanya is the defendant, Ms. Tanya Ellis. [ 6 ] Ms. Ellis agreed to meet with the drug user and the new customer (the undercover officer).

The officer gave the drug user $80.00 and the drug user went to Ms. Ellis’ vehicle, gave her the money and, on return to the vehicle, gave the officer a small spitball along with $5.00 change. The spitball weighted 0.22 grams and was analysed as fentanyl and caffeine. [ 7 ] Thereafter, the officer arranged directly to meet with Ms. Ellis to purchase drugs. Ms. Ellis subsequently sold small quantities of fentanyl (mixed with caffeine) to the same undercover police officer on other dates. [ 8 ] During the text messaging between Ms.

Ellis and the officer on November 23, 2019, the officer asked for “a half” which was clarified to mean a “half ball”. Upon asking the cost, Ms. Ellis advised $400.00. The officer asked if she could “do it in bulk and can you throw in some side to (sic)”. The response from Ms.

Ellis was “I don’t do side just pants and hard” and on being asked to accept $380.00 for the purchase, replied “No sorry I pay to (sic) much I have to get $400 I only make $50 offthat (sic) cause I don”t do hb”s and B’s usually just $50 and $25”. [ 9 ] The purchase took place with the officer buying drugs packaged in a dime baggie with “Hb” written on it in black marker. The drugs were analysed as fentanyl and caffeine and weighed 1.69 grams. [ 10 ] On November 26, 2019, the officer asked to purchase a “50” and the meeting was arranged. The officer got into the front passenger seat, gave Ms.

Ellis $50.00 and received the drugs. The two carried on a conversation about obtaining other drugs and drug pricing. During the end of this conversation, Ms. Ellis’ daughter returned to the vehicle with a slushie and the remaining conversation, with the daughter present, was about 45 seconds long. The daughter appeared to be between eight and ten years old. The drugs, analysed to be fentanyl and caffeine, were packaged in a clear plastic baggie corner knotted at the top, and weighed 0.18 grams. [ 11 ] On December 5, 2019, the same undercover officer arranged to meet Ms.

Ellis to make another purchase of drugs, specifically “half g pants”. Ms. Ellis replied that she “only (have) fifty’s right now and points for $25”. The officer replied “I’ll grab two “50s”. The meeting was arranged with other members of the surveillance unit also present. The undercover officer had entered Ms. Ellis’ vehicle and was about to pay, when the other members of the unit moved in and arrested Ms. Ellis. In a search incidental to arrest, Cst. Vose found a small spitball (later determined to be a mix of cocaine, fentanyl and caffeine) wedged between the driver seat and centre console.

It weighed .18 grams. [ 12 ] Cst. Vose also located and seized the following items: ➢ Cash - Canadian currency, not organized $775.00 ➢ Cash – Canadian Currency, organized $935.00 ➢ Cash – loose change $ 24.15 ➢ Crack cocaine in a clear plastic round container, found in Ms. Ellis’ jacket pocket and weighing 0.86 grams ➢ Clear round plastic container with residue believed to be cocaine ➢ Apple iPhone ➢ Digital scale with residue analysed as containing Phytocannabinoids, Cocaine, Fentanyl, Cyclopropyl Fentanyl, Phenacetin and Caffeine ➢ Five unused sandwich baggies [ 13 ] Cst.

Vose also observed drug paraphernalia on the driver’s seat, namely a glass pipe with a hose attached to it and which had been between Ms. Ellis’ legs upon arrest. [ 14 ] The purchases by the undercover officer, and the meetings, were all arranged through a cell phone associated to Ms. Ellis. THE EVIDENCE FROM MS. TANYA ELLIS

[ 15 ] Ms. Ellis is 43 years of age. Growing up, she saw her father assault her mother frequently and she was exposed to much yelling and fighting. She recalls being locked in the bathroom with her mother, seeing her mother crying and her parents fighting. She was in trouble a lot at school and acted out. She attended an alternate school and achieved a Grade 10 equivalent education. She started experimenting with drugs in Grade 3 and associated with peers who were skipping school and using alcohol and drugs.

She was in Grade 8 when she first smoked crack cocaine which was offered to her by an older man who was in a relationship with Ms. Ellis’ female friend. [ 16 ] In her early twenties, she started using heroin. She was involved in an abusive relationship with a man who physically and sexually abused her. His parents supplied her with drugs and alcohol. She did not disclose what was occurring to anyone and it was many years later that she started to receive counselling for these experiences. [ 17 ] After the previous relationship ended, while still in her early twenties, she met Mr.

Art Nelson, the father of her two daughters. She began living with Mr. Nelson and his family on the Quinsam Reserve and he introduced her to heroin which quickly became a daily habit. Mr. Nelson was involved in criminal activity and also addicted to substances. He spent significant periods of time in jail. By the time Ms. Ellis was in her thirties, she was not using heroin daily because she was also taking methadone and using cocaine.

She described that the Ministry of Children and Family Development were involved with her family and children because of her addiction. [ 18 ] Tragically, on August 30, 2019, approximately two days after they had both attended a five week residential treatment facility, Mr. Nelson died of a suspected overdose. She testified that after Mr Nelson’s death, she moved in with her mother who also lives on the reserve. While giving evidence about this, she was clearly distraught and grieving, and I accept that his death was, and remains, a significant loss. [ 19 ] Ms. Ellis still uses heroin/fentanyl and cocaine.

She has been to residential treatment seven times. She has maintained sobriety for very short periods of time after some treatment programs. She was refused entrance into another program because she couldn’t pass the urine screening test for substances. She described that even as she and Mr. Nelson were driving home from the last treatment facility, she knew she was going to use drugs again. She described coming home to the same surroundings with “the same problems, the same chaos, not knowing where to go from there and not wanting to deal with it.” [ 20 ] Ms.

Ellis’ evidence illustrates a life that is dismal: [I have been]…living this life so long, so used to doing the inevitable and the drugs affected my mind, memory…[my health] is bad…it just seemed to all come down on me at one time…not wanting to be on the reserve…wanting my own home, own space, not listening to yelling, screaming, complaining, my mom not knowing what its like to be an addict…she says all the wrong things…[I’m] told I’m no good, [will] never amount to anything and after awhile I think maybe I’m not… [ 21 ] She described what it is like to use and inject drugs: …in the morning…taking hours to find a spot where my body will receive the drug…feeling so horrible and just wanting to feel better and you can’t find anywhere on your whole body.

Like I am scarred. My veins are collapsed. ….I….have to go in my feet sometimes which is painful…its horrible...then try to smoke and. ..it just doesn’t do it. I try and try for hours, sometimes bleeding everywhere…in the hot bath to try and bring my veins out, drink water, whatever I can do.

But still it’s… absolutely disgusting. [ 22 ] She described the scarring from her hands halfway up her arms from injecting drugs and has to wear long sleeves to cover them up. [ 23 ] In terms of resources, she testified that after the last treatment program she was connected with a counsellor on the reserve but after her husband’s death she didn’t see one. She has seen probation officers in the past but no one sat down with her to examine her options and assist her in filling out applications for treatment programs. [ 24 ] After Mr.

Nelson’s death, she stayed in bed for days, wondering how she was going to support her children and her drug addiction. She just wanted to “get high” and made a call to someone to get drugs – fentanyl. She started getting bags and 50 points on credit from this supplier, and which she could also sell, to support her habit. [ 25 ] Between August and November, 2019 she was consuming 1 gram to half a ball per day of fentanyl.

Turning to the facts of this case, she testified that she pays $350.00 for a half ball of down (heroin/fentanyl) and would break it down into smaller amounts and sell it so she made enough to support her own drug use. The text messages refer to “down”. She says this is fentanyl and that heroin doesn’t exist anymore, although she assumes there is some heroin in it, but for the most part, it can no longer be bought on its own. “Side” is crystal meth or speed. “Hard” is crack cocaine. [ 26 ] She would typically sell to five to ten people she knew and sold a point for $25.00 and two points for $50.00.

She was found with cash separated into two segments. She testified that on the day of her arrest, she had money from her welfare cheque and, referring to the remaining amount, that “it was a good day”. She did not have anyone else working for her and kept track of sales simply by counting the money at the end of the day.

She didn’t cut the drugs with anything else – she received it in bulk and sold it just as she received it but in smaller amounts. [ 27 ] She testified that the majority of the money she made from selling the drugs was to support her own addiction but sometimes she could have some extra and she bought food or an outfit. If there was something left over, it would be in the vicinity of $100.00. [ 28 ] She testified that the supplier initially gave her drugs up front and she didn’t have to pay for them and that is how they typically start out.

She described that withdrawal symptoms start in 12 to 48 hours and include restless legs, the feeling of skin crawling, the inability to sleep, sweats, diarrhea and vomiting. It can last up to ten days, even longer, but “easily a week”. [ 29 ] She has a criminal record that includes one dated prior conviction on September 24, 2002 for trafficking and numerous shoplifting offences with the last occurring on November 5, 2018. She was candid that she would steal and then sell those items to buy drugs.

[ 30 ] A review of her criminal record indicates that she has been supervised by corrections (probation officers) almost continuously on probation or conditional sentences since the first probation order on June 10, 2002. That is almost a twenty year span. She was asked why probation hasn’t prevented her from returning to her addiction, she replied that she goes into the probation office, talks to the officer for “a minute” but has never really received assistance, or at least the assistance she needed, over the years.

I pause here to add that in my experience, probation officers try very hard to help people as best they can, using the tools and resources available to them. [ 31 ] Over much of her life, Ms. Ellis has been sentenced to numerous probation orders, conditional sentence orders (jail served in the community which usually includes house arrest and curfew conditions), fines, and jail. Her jail sentences ranged from three days to nine months. As best I can tell, she has spent at least 240 actual days in jail.

When asked why time in jail hasn’t stopped her from being addicted, she testified that she cleans up, but comes back to the same problems and the same struggles. [ 32 ] She described other difficulties, specifically that 30 days or 5 weeks in treatment is not enough time to recover from her addiction, she has difficulty doing the follow up work, she is depressed, she isolates at home and has difficulty when she returns to the same circumstances and environment.

When asked what would help her, she felt more programs to help her to attain and learn new tools and ways to stay clean; being busy; and being around healthy and supportive people. She described that she does not have many healthy supports. [ 33 ] Ms. Ellis was a candid and forthright witness who did not embellish or evade difficult questions. She appeared very sad and defeated. THE EVIDENCE FROM CST. JONES [ 34 ] Cst. Jones is a 20 year veteran of the RCMP and is a past member of the Vancouver Organized Crime Unit and the Surrey Serious Crime Unit.

He was involved in larger complex international investigations targeting organized crime groups involved in importing and exporting controlled substances across national and international borders throughout the world. He was involved in law enforcement on the “Whalley Strip”, spent two years with the Comox Valley RCMP Drug

Section and, since 2019, has been a member of the Comox Valley RCMP Bike Unit. In the latter position, he regularly encounters people who are using drugs. [ 35 ] He was qualified to provide expert opinion in a number of areas related to trafficking in heroin, fentanyl and cocaine, by way of dial-a-dope and at the street level. [ 36 ] His evidence is that the drug trafficking hierarchy is complex and that those at the higher or highest levels of a trafficking operation have considerable resources and are therefore insulated and difficult to detect.

Conversely, the person selling drugs at the street level are at the lowest rung of the hierarchy and have motivations completely different from the persons at the upper echelons of a drug organization - the “kingpins”.

In operating a dial-a-dope business, it is common for the high or mid-level dealer to rent a vehicle as a means to distance themselves from the vehicle and the drugs and also to prevent seizure of personal vehicles. [ 37 ] He agreed that the police officers patrolling the streets are not interacting with higher or the highest levels of drug operations, and that those at the higher end of the trafficking trade would likely not even know how their drugs make their way to the street. Rather, they bring in drugs and it is up to other people in the organization to pass them to someone else and so on down the chain.

The traffickers at the street level are the proverbial “low hanging fruit” and are the most easily seen, and arrested, by police operations. [ 38 ] The Whalley Strip is the equivalent of the Downtown Eastside in Vancouver (DTES). The primary method that drugs are sold on the Whalley Strip are hand-to-hand.

The police conduct “observe and arrest” operations during which they use binoculars or viewing scopes to look for hand-to-hand drug transactions and arrest the trafficker or the subsequent buyer of a controlled substance. [ 39 ] He testified that he gained considerable experience in assessing the “tools of the trade” required to sell drugs versus simple consumption but that there was blending between the two.

He also told the court that there were definitely people on the Whalley Strip who were both selling and using drugs. [ 40 ] In the Comox Valley and Campbell River, there is far less hand-to-hand transacting and, instead, the exchange of drugs is primarily through the dial-a-dope method. [ 41 ] He agreed that, based on his experience with the people he encountered at the street level, these people are highly marginalized, are selling drugs to support their own use and many struggle with unstable housing.

Many of the people he encountered who were using or selling drugs have previous convictions for offences and many have experienced overdoses. Many of the people he encountered on the Whalley Strip were unemployed. Cst. Jones testified that from his experience, “a lot of traffickers … are selling to support their habit….because their…drug use has taken over their life.” [ 42 ] He was referred to text messages between the undercover officer and Ms. Ellis. The undercover officer made a request for drugs asking if it could be purchased in bulk and if Ms. Ellis could also “throw in some side too”.

He explained that the meaning of the expression “throw in some side” referred to methamphetamine. The response from Ms. Ellis that she doesn’t sell “side”- “just pants and hard” is slang for heroin or fentanyl (pants) and crack cocaine (hard). [ 43 ] According to Cst. Jones, by telling the officer that she doesn’t “do hb’s (half balls) and B’s (balls)”, Ms. Ellis was advising the officer that she trafficked in smaller amounts. A “half ball” is approximately 1.75 grams. A point is even smaller at .1 gram. At one point in the communication, Ms. Ellis advises that she only had “50’s” and points for $25.

A “50” is two points for $50.00. One point is $25.00. The undercover officer eventually requested two “50’s” which would be $100. [ 44 ] He testified that many drug sellers are selling to support their drug addiction and that addicts in the throes of withdrawal, are highly motivated to support their habit including resorting to violence, committing break and enters and theft and prostitution. He agreed that these individuals will continue to use drugs despite the negative consequences of unemployment, loss of family and threats of criminal punishment.

[ 45 ] He agreed that if a drug seller is sentenced to jail, there is usually someone shortly thereafter who is willing to take their place. THE EVIDENCE FROM DR. RYAN MCNEIL [ 46 ] Following submissions and evidence in a voir dire , I ruled that Dr.

McNeil was qualified to give expert opinion evidence with respect to the following: ➢ Overdose risk, prevention and harm reduction, including the effect of criminalization on overdose risk, and also addiction treatment; ➢ The demographics of drug users in British Columbia, including socioeconomic backgrounds of drugs users in British Columbia and the intersection of drug use with other causes of marginalization; ➢ The physiology of opioid addiction, including the effect of opioid addiction on decision making and effectiveness of denunciation and deterrence on drug users; and ➢ Drug jargon and slang. [ 47 ] Dr.

McNeil is the Director of Harm Reduction Research with the Program in Addiction Medicine and is an Assistant Professor in General Medicine at the Yale School of Medicine. He has a co-appointment in the Yale School of Public Health and teaches a graduate level course on harm reduction drug policy – it is the only graduate level course of its type currently in existence throughout the world. He is an Affiliated Scientist with the Qualitative and Community-Based Research Team at the British Columbia Centre on Substance Use, located in Vancouver, British Columbia.

He is also an Affiliated Assistant Professor of Medicine at the University of British Columbia. [ 48 ] Dr.

McNeil is involved in peer review studies of other studies and projects and has received significant funding to assist him, and his team, to conduct research and projects throughout the downtown area of Vancouver, British Columbia with a focus on the general epidemiological background of people suffering from addictions. [ 49 ] He is currently involved in a very large study - " An Ethno-Epidemiological Study of The Implementation and Effectiveness of An Innovative and Comprehensive Response To The Opioid Epidemic "- which is funded by the National Institutes of Health in the United States.

The funding is in place between 2017 to 2022, and is ongoing at the present time. He has led and conducted numerous studies involving people who suffer from substance use disorder -- those who use drugs and those who sell drugs. [ 50 ] His research in these areas has been published extensively and he is an internationally recognized expert in his field. His research has involved considerable focus on hundreds of people in the Downtown East Side of Vancouver (DTES).

However, he also testified that the people he has interviewed and observed in those areas come from all over the province, including Vancouver Island, the Interior, and Northern British Columbia.

The people in those studies included a large number who have been involved in the criminal justice system, experienced jail and conditions such as curfews and what we commonly call "red zones", as well as general engagement with the police. [ 51 ] His direct research has allowed him to acquire expertise into their experiences in the criminal justice system, the impact of numerous factors such as trauma and other socioeconomic factors upon their addiction, as well as the personal consequences of the opioid drug addiction from which they suffer.

As he stated in his evidence, through extensive interviews with people who use drugs in a real world setting, he has been able to understand the impacts of opioid drug addiction, as lived by people. [ 52 ] He agreed that he has not met or interviewed Ms. Ellis personally, but testified that her life experiences are closely aligned with the people he has studied for over a decade. He was present during the testimony of Cst. Jones and was familiar with the agreed statement of facts. He agreed with Cst. Jones that the language used by Ms.

Ellis in her text messages to the undercover officer indicate that she was selling small amounts of drugs and that this was a very common way for someone to manage their own opioid use and avoid withdrawal because they buy wholesale and the profit margin covers their own use. Because the drugs are often bought on credit, this can result in an extreme level of risk if the person is not able to pay back the supplier. [ 53 ] The results of his studies, particularly the large research project funded by the U.S.

National Institute of Health indicate that 40% to 50% of drug users in those studies also sold drugs. [ 54 ] He described that the typical background and antecedents of the people in his studies were marked by trauma, homelessness and extreme poverty. [ 55 ] Those factors are, as Dr.

McNeill stated, complex and they can vary, but a number of things are associated with a greater risk of developing a substance use disorder: socioeconomic marginalization along with histories of involvement with the child welfare system, being exposed as a child to people with substance use disorders and there are strong links to trauma being associated with development of substance use disorders.

In addition, the presence of these factors contribute to particularly poor outcomes among those who do develop a substance use disorder. [ 56 ] Furthermore, there are a disproportionate number of Indigenous people who suffer from substance use disorders and who have been impacted by racial trauma, the child welfare system involvement in generations of families, the legacy of residential schools and poverty. [ 57 ] Substance use is recognized widely as a medical and health issue and, increasingly, people with substance use disorders are being treated medically. Dr.

McNeil’s opinion is that the most effective treatment is an evidence-based approach. The gold standard is medication-based treatment that has been shown to be effective for people, and, importantly, effective over time. Dr. McNeil referred to the Canadian Clinical Practice Guidelines for the treatment of opioid use disorder which involve treatment with medications such as methadone, buprenorphine and injectable hydromorphone. [ 58 ] Dr. McNeil was asked about the efficacy of incarcerating individuals with a substance use disorder or typical recovery programs

that require abstinence. He spoke of the heightened risk of overdose deaths, across jurisdictions, post–incarceration and added: British Columbia is so far ahead of the rest of the world when it comes to this, in terms of the options available to people, and I think the one to really emphasize here is the approval of primary care and through specialist care, people do have access to, again, those medication-based treatments for opioid use disorder, be they methadone, buprenorphine, …morphine, or where available, injected hydromorphone.

And….these programs, especially where they’re operating within treatment paradigms that don’t penalize people on the basis of concurrent drug use, are certainly much, much more effective at managing and reducing overdose risks and other related harms, more generally. (emphasis added) [ 59 ] Dr. McNeil’s opinion is that, for the street level opioid addicted drug seller, jail is ineffective in addressing the factors that drive their engagement in drug selling, while also increasing their potential vulnerability to severe harms, including overdose post- incarceration. He explained: There’s a lot of reasons for that.

I mean, first of all, you know, we effectively know at this point, based on the research, that the more effective things in….addressing substance use disorders is evidence-based treatment for substance use disorders, which for example, in the case of opioid use, is primarily medications. It’s methadone. It’s Buprenorphine. It’s slow releasable morphine. It’s diacetylmorphine or hydromorphone. And...we know, again based on research, that … a high rate of drugs use have been among people who are incarcerated.

And the period …which people are released…that post-release period is one of the periods that’s kind of marked by ... some of the greatest overdose risks that a person can have. So, certainly in this case, no. Incarceration ... certainly hasn’t proven effective in reducing overdose risk. [ 60 ] He was asked if, based on research and his personal and professional experience, jail sentences have…deterred the selling of drugs for the person who also uses drugs: No.

Gosh, no. …it’s a strategy or approach that’s so poorly positioned to address the factors that push people into drug selling, especially where it stems from socioeconomic marginalization, limited opportunities, often severe and unmanaged substance use disorders, or opioid use disorder. The need to manage that and ensure that one is able to manage that really takes precedence over so many other ;things in a person’s life, and is, you know, within the context of what we would call like a situated rationality in the social sciences. It’s the medical anthropology way of looking at drug use.

Within that kind of situated rationality of drug use, that need to ensure access to drugs and to effectively avoid going into withdrawal…is so much more critical than any of the risks that may be associated with potentially being arrested or for drug selling again. And you know, one thing that I really – if I can take a moment just to impress upon you, it’s we really don’t take opioid withdrawal as seriously, as an experience, as we probably should.

And with that – within that context, you know, the risks associated with drug selling and the potential risk of arrest and incarceration are completely overwhelmed by how, in that moment, the most critical thing that you can do is address those symptoms of withdrawal. …I’ve known people who literally…sold the boots off their feet because they were going through withdrawal and needed to purchase drugs to manage those experiences…..This is … feeling the sickest you’ve ever felt. [ 61 ] He was also of the view that court ordered counselling is not effective because it does not address the underlying factors that pushed people into the addiction and selling drugs in the first place, particularly in the context of severe socioeconomic marginalization, poverty and lack of access to ways to make funds that could support a person’s use.

He referred to research in the lower mainland that forcing people into treatment doesn’t work and there was no positive association between being forced into treatment and improved outcomes. [ 62 ] Based upon his knowledge and engagement in medication-based or evidence-based treatment, he viewed abstinence conditions as unrealistic and setting someone up for failure.

As many in the justice system are aware, he referenced the fact that treatment is not a straight line and involves stages from diagnosis to accessing medication-based treatment and continuing on the medication-based treatment until maintenance is achieved for a period of two years. To achieve stability or rehabilitation, the two most critical things are access to safe and appropriate housing and access to evidence-based treatment. The other critical factor is limiting incarceration as much as possible because of the short and long term consequences of jail for a drug addict. [ 63 ] Dr.

McNeil’s evidence is that a number of leading international organizations, such as the United Nations Aids Program, advocate for a shift toward drug decriminalization.

Based on his research and knowledge, as well as work done across North America by other researchers, the “current approach to criminalizing drug use really does nothing but drive harm, including increasing overdose risks, while really not producing positive outcomes for people, and really calling into question whether or not it should be a primary approach to substance use.” [ 64 ] He was asked in cross-examination what should be done to address the problem of drug use and trafficking. Dr.

McNeil referenced encouraging work being done around the implementation of the safer drug supply program and that this suggests there are other ways to address harms associated with drug selling and that may remove sellers from the equation altogether, while also helping to connect people with what they need to manage their opioid use. [ 65 ] Citing a project at the University of Victoria, B.C., Dr. McNeil testified that the researchers found that 90% of the illicit opioids which were tested were positive for fentanyl. As Dr. McNeil stated: …the expectation that everything is fentanyl at this point.

If you’re buying, if you’re selling, that’s what the supply is now.” [ 66 ] The City of Vancouver, through an overdose prevention site, is distributing hydromorphone to people at high risk of fentanyl overdose. Dr. McNeil’s research, which included a paper published in Drug and Alcohol Dependence and another in the Journal of Urban Health , found that providing a pharmaceutical grade drug (hydromorphone) as an alternative to illicit fentanyl was highly

efficacious in decreasing engagement with the illegal drug supply. [ 67 ] Dr. McNeil further elaborated that: ….there’s this…incredible tension right now in relation to the overdose crisis and how we’re dealing with it, as a society, between public health or medical approaches and the criminal justice system, wherein we collectively, I think, have moved to the point where we identify opioid use and opioid use disorder as a medical condition. And yet, we’re not treating it only as such and we need to further find ways to shift approaches…. that it’s a health issue and respond to it accordingly.

Which is to say…it’s..very expensive to incarcerate people and associated funds could likely go a long way to funding the types of evidence-based programs that could reduce these harms… THE PUBLIC HEALTH EMERGENCY AND OPIOID CRISIS IN BC [ 68 ] The public health crisis that was officially declared by the Provincial Health Officer on April 14, 2016, has continued, essentially, unabated.

Despite the use of these emergency powers, additional funding for initiatives to “save lives, end stigma and improve access to services for people struggling with addiction”, the sad reality is that the deaths caused by drug overdose continues to escalate. The most recent report from the BC Coroners Service for the period ending September 30, 2021, shows that the deaths from suspected illicit drug toxicity in August and September, 2021 were the largest ever recorded since the emergency was declared. Based on this data, about 5.5 people are dying every day in British Columbia from toxic drugs.

The deaths from toxic drugs for 2021 are the highest ever recorded in the first nine months of a calendar year and represent a 24% increase over the same period in 2020. To place this in stark perspective, in 2016, 992 people died from illicit toxic drugs compared to 1,534 for the first nine months of 2021. If this continues at the same rate and barring continued increases, the province is on track to record over 2,000 deaths by the end of this year. [ 69 ] The number of deaths due to illicit drug toxicity is markedly higher than deaths by suicide, motor vehicle incidents, homicide or prescription drugs.

The vast majority of deaths occur in a residence (over 80%). A quarter of these deaths occur in residences described as hotels, motels, rooming houses, single room occupancy residences, shelters and/or other social/supportive housing environments. Illicit fentanyl and its analogues were involved in 87% of these deaths, an increase from about 30% in 2015. [ 70 ] Between January and August, 2021, the report indicates that nineteen people in the Greater Campbell River area died as a result of toxic illicit drug overdose.

THE LEGAL FRAMEWORK [ 71 ] The Controlled Drugs and Substances Act and Criminal Code provide the statutory framework outlining the purpose, objectives and underlying principles that inform the assessment of a fit and just sentence in this case. The most fundamental and overarching objective is respect for the law and the maintenance of a just, peaceful and safe society.

This is accomplished through the imposition of a sentence that prevents more offending by the offender or others (respectively, specific and general deterrence), expresses the community’s disapproval of the unlawful conduct and consequential harm (denunciation), encourages and promotes rehabilitation of the offender, hold offenders accountable and recognizes the harm caused by offences to victims or the community and, where necessary, separates the offender from society.

The last objective, of course, refers to incarceration in a jail. [ 72 ] 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. [ 73 ] The seminal decision R. v. Smith , 2017 BCCA 112 , revisited the sentencing ranges in British Columbia for first time offenders convicted of trafficking fentanyl at the street level. Mr.

Smith was a first time offender who was addicted to Tylenol 3 (not fentanyl) and convicted of trafficking Fentanyl (2.6 grams in total) and Cocaine in the Downtown East Side (DTES) of Vancouver. However, two days after his arrest on these charges, Mr. Smith was arrested for disobeying his bail order and was found in possession of larger quantities of cocaine and fentanyl. Later, he was found yet again in the DTES, contrary to his release conditions and was in possession of Tylenol 3 and clonazepam.

He claimed to be unaware the drug he was selling was fentanyl, believing it to be heroin. [ 74 ] The majority endorsed the dissenting reasons of Newbury, J.A., and established a range of eighteen months to thirty-six months in jail for a first time trafficker of fentanyl, although on the facts of the case, the majority ultimately upheld the sentencing Judge’s decision to impose a 6 month sentence. The reason for the increase in this sentencing range was because, at that time, the public and the courts were becoming much more aware of the supply and toxicity of fentanyl as opposed to other illicit drugs.

Harris, J.A. referring to the difference between trafficking fentanyl compared to other types of drugs, remarked on the need for increased sentences for the former: [49] In my opinion, these facts warrant recognizing a sentencing range for street-level dealing in fentanyl which is materially higher than the sentencing range applicable to other dangerous drugs such as heroin . The range for street-level dealing in those drugs seems to start in British Columbia at six-months’ imprisonment.

As matters stand today, other dangerous drugs do not kill as frequently, accidentally, or as unpredictably as fentanyl , but the risks posed by those drugs should not be minimized even by comparison with fentanyl. Heroin, crystal meth and cocaine can have devastating consequences. They may not kill as often as fentanyl, but very large numbers of accidental deaths are associated with their consumption (indeed the majority of accidental overdose fatalities involve a mixture of illicit drugs) and they destroy lives and wreak social havoc.

The existing sentencing range for them is intended to reflect, amongst others, the sentencing principles of deterrence and denunciation. Recognizing a different and markedly higher sentencing range for street-level dealing in fentanyl turns on the enhanced risks associated with that activity and the individual responsibility of dealers given those risks and public knowledge of them. (emphasis added) [ 75 ] In revisiting the sentencing range specifically for fentanyl trafficking, the court, referring to R. v. Lacasse , 2015 SCC 64 , considered the broader evolving understanding of this offence:

[53] At the core of the review exercise is the fundamental principle of proportionality. A proportionate sentence is one which isproportionate to the gravity of the offence and the degree of responsibility of the offender. This involves, in my view, an assessment ofthe circumstances of the offence at the time it was committed.

Evaluating the circumstances of an offence may well involve assessingchanges in social circumstances, public knowledge, and changes in societal and judicial knowledge and attitudes about certain offences. [cites omitted] [54] Material facts about the public health crisis associated with fentanyl have been evolving rapidly in recent years. They have evolvedsignificantly since Mr. Smith committed the offence in January 2015. I think that evolution is relevant to the question whether thesentence imposed on Mr.

Smith is demonstrably unfit given the circumstances that existed at the time he committed the offence. (emphasis added) [76] Newbury, J.A., at paragraph 36, was clear that sentencing ranges must be adjusted from time to time to reflect societal values: [36] It is also indisputable that from time to time, sentencing ranges must be adjusted or re-aligned when they fail to reflect, in a generalsense, changes in societal factors that are relevant to proportionality, whether in a particular region or in society generally. As stated byMr. Justice Code in R. v.

Nur 2011 ONSC 4874 [cite omitted] in connection with certain firearms offences: Second, social norms and judicial responses to them, have changed since the 1980s and 1990s. The proliferation of handguns hasincreased, homicides involving handguns have increased, and the justice system has responded to public alarm by stiffening its approachto sentencing in cases involving handguns. It is a common phenomenon, in the law of sentencing, for sentences to increase and decreaseas societal and judicial knowledge and attitudes about certain offences change.

In its seminal decision setting out the modern principlesof sentencing, R. v. Willaert (1953), (ON CA), 105 C.C.C. 172 at 176 (Ont. C.A.), the Court of Appeal made it clearthat appropriate sentences will change over time as the “needs of society” change: I am respectfully of the opinion that the true function of criminal law in regard to punishment is in a wise blending of the deterrent andthe reformative, with retribution not entirely disregarded, and with a constant appreciation that the matter concerns not merely the Courtand the offender but also the public and society as a going concern.

Punishment is, therefore, an art – a very difficult art – essentiallypractical, and directly related to the existing needs of society. A punishment appropriate today might have been quite unacceptable twohundred years ago and probably would be absurd two hundred years hence.

It is therefore impossible to lay down hard and fast andpermanent rules. (emphasis added) [37] On this occasion, the change we must consider is the proliferation of Fentanyl and the fatal consequences of its illegal sale anddistribution. [77] This was in response to the justifiable concern and outrage over the increasingly large rates of overdose deaths and harm causedby fentanyl, carfentanil and their analogues.

Noting that British Columbia had “one of the worst, if not the worst, problems of fentanylabuse in Canada”, Newbury, J.A. was of the view that the danger posed by fentanyl must “surely inform the moral culpability ofoffenders who sell it on the street and obviously increases the gravity of the offence beyond even the gravity of trafficking in drugs suchas heroin and cocaine”: para. 44. [emphasis added]. [78] The Court of Appeal in Smith was clear that an increased sentencing range for the offence of selling fentanyl was necessary tosatisfy the objectives of deterrence and denunciation to reduce such offences, restore some semblance of safety to the community andreduce the number of overdose deaths involving fentanyl. [79] Other courts in Canada have considered the imposition of appropriate sentencing ranges for trafficking fentanyl.

In R. v. White,2020 NSCA 33, Saunders, J.A. declined to establish a range, or starting point in such cases because the court did not have enoughevidence: [117] In my view, it would require a suitable evidentiary record, presumably based on persuasive expert evidence in the fields ofmedicine, toxicology and law enforcement. Such a record would then provide a basis for the trier of fact to properly assess the currentsituation in Nova Scotia and decide what, if any, further steps ought to be taken to appropriately characterize the various levels ofparticipants in the fentanyl distribution chain.

That assessment would then enable the trier to consider the placement or ranking of theoffender within that hierarchy, which in turn might assist the trier in the necessary proportionality and parity analyses. Such a completerecord, together with the trial judge’s reasons, would then provide a suitable basis for appellate review. Absent such a foundation I amnot prepared, at this time, to declare either a range or a starting point. (ephasis added) CAN THIS COURT REVISIT THE SENTENCING RANGE IN SMITH?

HAS THERE BEEN A SHIFT IN SOCIETALVIEWS and ATTITUDES ABOUT DRUG ADDICTION and THE PEOPLE WHO ARE ADDICTED TO THOSE DRUGS? [80] The doctrine of stare decisis, that lower courts follow the previous rulings of other judges in higher courts, is one of the basicunderpinnings of our law. It promotes consistency in the application of laws across Canadian courts. At the same time, the highestCanadian court has recognized that stare decisis is not a strait jacket and that the law must be allowed to develop. Specifically, theSupreme Court of Canada in Canada (Attorney General) v.

Bedford, 2013 SCC 72 at para. 42, was clear that trial courts may revisit adecision of a higher court when: ➢ A new legal issue is raised; or ➢ There is a change in the circumstances or evidence that “fundamentally shifts the parameters of the debate.”

[ 81 ] Therefore, trial courts can reconsider binding precedent if there has been a shift in the legal or social landscape. There must be social or legislative evidence to support this.

In fact, the trial or sentencing judge has a duty “to evaluate and weigh that evidence in order to arrive at the conclusion of fact necessary to decide the case.” Bedford para. 49 . [ 82 ] The language in Bedford supports my 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. [ 83 ] 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. [ 84 ] In the following news release from the BC Coroner’s Service dated November, 9 2021, Chief Coroner Lapointe’s statement is further evidence of the changing landscape in our understanding about how to humanely and effectively address drug addiction: Our province is in the sixth year of this public health emergency, and the death rate due to toxic drugs has never been higher, said Lapointe.

Urgent action on a number of fronts is required, including much broader access to safe supply, more readily available and efficient drug-checking services, and a shift from a law-enforcement focus to a health-centred approach. The Province’s application to the federal government to decriminalize possession of illicit drugs for personal use is an essential step to address the drug toxicity crisis. Criminalizing those who use substances has done nothing to address this complex health issue and has resulted in greater suffering and marginalization.

How many more deaths are we willing to accept to maintain drug policies and laws that have no basis in evidence?" [ 85 ] In response to the growing understanding of addictions, the province has applied to the federal government to decriminalize possession of so called “hard” drugs for personal use. In addition, more resources will be provided for treatment and recovery.

The province has also began a program to provide a safer supply of illicit drugs, although, unfortunately, at least to date, the program is primarily in the larger urban centres and I am aware that resources are not consistent throughout the province. [ 86 ] These many initiatives and Dr. McNeil’s evidence, indicate that there has been a shift in societal, and I would add, judicial attitudes and understanding about drug addiction and the factors that cause people to use and sell drugs.

Tremendous focus and effort is now being placed on reducing the stigma associated with drug use to encourage individuals to reach out for assistance. There is ongoing discussion and implementation at very high levels around decriminalization of drugs and establishing alternate approaches to addressing the opioid crisis that were not occurring, at least in a meaningful way, even four to five years ago. [ 87 ] Ms. Ellis says that this Court should revisit the sentencing range established in Smith for those who sell fentanyl at the street level and recognize that Ms.

Ellis is not, and does not need to be, a “unique” or “exceptional offender” in order to justify a departure from that range. [ 88 ] I conclude, based on all the evidence before me, that since the onset of the opioid crisis in 2016, and since the Smith decision, there has been a fundamental shift in societal understanding of drug addiction – the underlying causes, risk factors and the best evidence based treatment protocols and guidelines.

There has also been a fundamental shift in understanding the consequences for those who are addicted – specifically the relationship between the addiction, the need to have access to a drug, the imperative to avoid the severe effects of withdrawal and the low level or street level trafficking of those drugs. In my view, this “fundamentally shifts the parameters of the debate” and allows me to revisit the sentencing range established in Smith for drug trafficking at the street level and to consider the role of deterrence and denunciation in assessing a fit sentence for these individuals.

DISCUSSION [ 89 ] It is important to understand the theory underlying the goal of deterrence. Ruby, in his text Sentencing , 4 th Ed., at p. 7, writes that the assumption underlying deterrence as a goal of sentencing is that the threat or example of punishment discourages crime. Specific deterrence aims to prevent the individual offender from repeating the crime.

General deterrence aims to deter others in society, including potential offenders, from committing the offence by demonstrating the expected consequences. [ 90 ] There is a paucity of cases in which courts have had the benefit of expert evidence that would assist the trier of fact in understanding, at a more granular level, the relationship between addiction and street level trafficking as well as the effectiveness and appropriateness, in that setting, of jail as a deterrent factor. There are a few cases in which a sentencing judge did not give any weight to the opinion of an expert regarding these issues.

Crown counsel has referred me to these cases to support their assertion that I should give no weight to Dr. McNeil’s evidence. [ 91 ] In R. v. Lloyd , 2019 BCCA 128 , the B.C. Court of Appeal upheld a 6 year sentence for trafficking fentanyl. The sentencing judge had received an “open letter” from Dr. Evan Wood, a physician, who treated patients with addictions and who gave an opinion that rehabilitation ought to outweigh specific deterrence because of its limited impact on an addict. The sentencing judge did not find this letter helpful for a number of reasons: Dr. Wood had never treated nor met Mr.

Lloyd, rehabilitation was only one factor that the sentencing judge was required to consider, and Dr. Wood’s opinion conflicted with the defence submission that Mr. Lloyd had, in fact, become clean and sober and taken numerous rehabilitative courses while in custody. [ 92 ] The Lloyd case is markedly different factually from the facts in this case. Lloyd involved the trafficking of significant quantities of drugs including 51.29 grams of heroin and fentanyl as well as a significant amount of cash; Mr.

Lloyd was violent during the arrest; he was in possession of a weapon; and, significantly, he had ten prior convictions for trafficking. The letter from Dr. Wood was an “open letter” and although Crown did not object to this letter being given in evidence, Dr. Wood was not formally qualified or examined about

his expertise to give this opinion evidence. [93] I was also referred to R. v. Jaramillo, 2021 BCPC 225, a decision of the Honourable Judge Crockett. Mr. Jaramillo pleadedguilty to three counts of trafficking in heroin/fentanyl and fentanyl as well as possession of a loaded firearm without a licence. He alsobreached release orders on three occasions. Crown sought a jail sentence of two years less a day, Mr. Jaramillo sought thirteen monthsfor the trafficking offences. Notwithstanding Crown’ opposition, Crockett P.C.J. admitted a transcript of the evidence given by Dr.McNeill in the Ellis sentencing hearing.

She ultimately gave Dr. McNeil’s evidence no weight because it had “little bearing on theapplication of the sentencing principles in an individual case.” She further cautioned that “Judges must be exceptionally cautious aboutaccepting the opinions of even the most respected academics.

It may be that little to no weight will be given to their opinions becausethey have limited bearing on the court’s function, which is to craft an individual sentence in accordance with the law as set out in theCriminal Code and prior case law.”: para. 58. [94] Crockett P.C.J. did not have the benefit of the recent jurisprudence in R. v. Morris, 2021 ONCA 680 in which carefulconsideration was given to how social context evidence may be utilized in a sentencing hearing. Mr. Morris was convicted of carrying aconcealed weapon – a loaded .38 calibre Smith & Wesson handgun.

The sentencing judge referred to evidence provided at the hearingconcerning the impact of anti-Black racism. [95] The trial judge admitted a report entitled “Expert Report on Crime, Criminal Justice and the Experience of Black Canadians inToronto, Ontario” which described and analysed the research done on the existence, causes, and impact of anti-Black racism in Canadiansociety, especially in the Toronto area.

The report explained how systemic discrimination in many social institutions marginalizes Blackpeople in communities marked by poverty, diminished economic and employment opportunities, and a strong and aggressive policepresent. [96] Crown appealed the sentence and argued that the trial judge placed too much emphasis on the social context evidence and theimpact of racism and asserted that the sentence fell well below the range of appropriate sentences for this offence. The unanimousdecision of the court was that this report as a whole, had value for sentencing purposes.

In particular, the court explained at para. 42: The report gave the trial judge the benefit of a scholarly, comprehensive, and compelling description of the widespread and perniciouseffect of anti-Black racism. As the trial judge observed, it helped him understand how Mr.

Morris ended up where he did. [97] While clearly the trial judge’s task is to tailor a just sentence to the individual offender and the specific offence, “social contextevidence relating to the offender’s life experiences may be used where relevant to mitigate the offender’s degree of responsibility for theoffence and/or to assist in the blending of the principles and objectives of sentencing to achieve a sentence which best serves thepurposes of sentencing as described in s. 718”: Morris, para. 13. [98] I also note that the Supreme Court of Canada relied upon social science or social context evidence from experts in the decisionsin Bedford (about sex work and prostitution) and in R. v.

Lavalee, (SCC), [1990] 1 S.C.R. 852 (battered wife syndrome). [99] This decision is not binding upon me, but it is persuasive authority from five Justices after a considered and reasoned analysis. Inmy view, Dr. McNeill’s evidence is relevant to my understanding of Ms. Ellis’ circumstances: her drug addiction, its causes and why shecommitted the index offence. This is relevant to her moral culpability. Dr. McNeil’s expert evidence about the best clinical approaches toeffectively treating substance use disorders, from which Ms.

Ellis suffers, is also relevant to my assessment and determination of how toweigh and blend all the objectives of sentencing, including deterrence and rehabilitation. [100] The effectiveness of general deterrence in the setting of an addict trafficker, was considered by Gouge, P.C.J. in R. v. Rutter, 2016BCPC 321, a case decided before Smith. Mr. Rutter was a young first time drug addicted offender who, over several months, had been anactive partner in a dial-a-dope operation.

At the time of sentencing, he had successfully attended a residential program for drug treatment,was abstinent and successfully employed with a bright future. Crown sought a jail sentence of eight months. While ultimately imposing asuspended sentence, the sentencing judge grappled with the classic sentencing objectives of specific and general deterrence in the settingof a trafficking offence. He considered that there was a risk to public safety if Mr.

Rutter received a jail sentence and which he concludedwould result in a “high risk of re-offending”, versus the reduced risk to public safety from the “unknown benefit of general deterrence”.Gouge, P.C.J. indicated that he did not have “any reliable source of information about the deterrent effect of jail sentences on drugtraffickers.” [101] The Court of Appeal (2017 BCCA 193) overturned this decision, finding that by concluding Mr. Rutter would more readilyrelapse if sent to jail, the sentencing judge had engaged in speculation.

Fenlon, J.A responded to the sentencing judge’s concern about theeffectiveness of deterrence in the circumstances of an addict: [23] In my respectful view, the sentencing judge lost sight of the presumptive effectiveness of jail as a general deterrent. In R. v. TracyDawn Smith, 2013 BCCA 173, this Court addressed a similar issue in a case of impaired driving causing death. The sentencing judge inthat case concluded that little weight should be given to the principle of deterrence in relation to the type of offence before him.

ThisCourt concluded that the judge had erred in so doing, citing its earlier decision in R. v. Johnson (1996), (BC CA), 112C.C.C. (3d) 225 (B.C.C.A.) at para. 29: [29] The principle of deterrence as a goal of sentencing is embedded in our law. The Supreme Court of Canada has said so in C.A.M., theamendments to the Criminal Code specifically refer to it as a sentencing objective (see s. 718(b)). We must assume that deterrentsentences have some effect. It is futile to ask whether a particular sentence will deter others. That question can never be answered.Deterrence operates in a general way.

Those that would break the law must know, and law-abiding citizens must be assured, that law-breakers will receive sentences which reflect the seriousness of their crimes. This will deter some potential offenders, it will not deterothers. [Emphasis added.] [102] The facts in the Tracy Dawn Smith case are important in understanding the context in which the principle of general deterrencewas discussed. That case involved impaired driving and focused particularly on the importance of general deterrence in circumstanceswhere people drink alcohol and then drive while impaired.

The factual circumstances of that case were particularly egregious. One can

understand and appreciate the underlying reason for accepting that general deterrence must be presumed to be effective - someone whodrinks and requires transportation can arrange a taxi or a ride from a sober designated driver. It is a choice. As was eloquently stated byRyan, J. A. in R. v. Johnson, (1996), (BC CA), 84 B.C.A.C. 261 (C.A.): [30] Drinking driving causing death or bodily harm offences are senseless crimes because they are so easily avoided and at the sametime they are so easily committed by ordinary citizens.

They are unlike any other crimes in the sense that nothing much can be offered tojustify driving drunk. Crimes of theft may be motivated by poverty, crimes of assault may be motivated by fear, but what excuse can beoffered for driving drunk, except that alcohol allowed the offender to lose all sense of judgment? It is for this reason that communitiesrightfully express outrage when victims are killed or injured as a result of such conduct. It is for this reason that both deterrence anddenunciation are legitimate objectives to pursue for this type of offence.

And it is for this reason that deterrence and denunciation oughtto have been considered by the trial judge in this case. [103] Unlike the sentencing judge in Rutter, in Ms. Ellis’ case, if the Court accepts that she is an addict who sells small quantities ofdrugs at a street level to support her own addiction, expert evidence has been tendered to assist the Court in determining whether, inthose circumstances, deterrence requires the imposition of a jail sentence and whether jail is an effective deterrent. [104] Dr.

McNeil’s evidence, based on significant experience and research working directly with people addicted to drugs and who alsosell drugs at the street level, is that jail sentences do not deter or cure them. In addition, they are at increased risk of overdose death upontheir release from jail.

That is because while they may have been abstinent in jail, if they resume using drugs when released, they willhave a much lower tolerance to the drugs. [105] His opinion, based on his extensive research and direct clinical experience, is that the most effective deterrent is evidence-basedmedical treatment including methadone, buprenorphine, heroin and hydromorphone. He added that when a safer supply is provided, theindividual does not need to purchase drugs from an illegal supplier. [106] I accept Dr.

McNeil’s testimony that people with a substance use disorder overwhelmingly have a history of trauma, poverty,mental health issues and involvement in the child welfare system. Those who are themselves addicts, and sell small quantities of drugs atthe street level as a means of ensuring their own supply, are among the most marginalized and vulnerable individuals in our society.They are the easiest targets for law enforcement because they do not have the resources to insulate themselves from detection. They areexpendable and easily replaceable by those higher up in the drug hierarchy. [107] The evidence of Dr.

McNeil, Cst. Jones and Ms. Ellis, supports my view that an addict does not think rationally when they needmore of the drug or, in particular, to prevent withdrawal. Arguably, it is not a rational choice to keep using drugs, but a biologicalimperative in which the drug is needed to avoid the extreme effects of withdrawal. Selling illicit drugs is illegal. In most communities,the only way a drug addict can obtain the drugs they need, is to buy from a seller, a trafficker, or to become a seller of drugs themselvesand keep a portion for their own use.

Both participants are willing partners in the sale and those who use drugs seek out those who canprovide it. [108] The response to the opioid crisis in Smith was to emphasize deterrence and denunciation for fentanyl trafficking as opposed totrafficking in heroin, cocaine, etc. However, the reality is that fentanyl is now ubiquitous. Dr. McNeil testified that there is no “heroin”being sold any longer. Ms. Ellis testified that there is no such thing as “heroin” anymore. I note that Fentanyl was found in the cocainethat is the subject of Count 4 on the indictment. [109] In R v.

Mann, 2018 BCCA 265, the Court heard expert evidence from Sgt. Boechler about the increasing use of fentanyl producedin China to reduce the cost and increase the profit to the drug trafficker. Sgt.

Boechler told the Court that this “massive profit potential”was such that fentanyl was “basically taking over all other illicit drugs”. [110] By extension if one accepts that since Smith was decided in 2017, almost all, if not all, drugs are contaminated by fentanyl, aperson selling virtually any drug now is included in the increased range and potentially subjected to a custodial sentence. [111] The criminal justice system has limited tools at its disposal to respond effectively to a growing health emergency.

Probationofficers have limited tools at their disposal in their efforts to help someone struggling with substance use disorders and, frequently,concomitant mental health issues, unstable housing and poverty. Programs are provided in jails, although I am aware, based on myexperience in the courtroom with people who have been sentenced to a period of custody, there are often significant wait times. ThePandemic has exacerbated this. [112] Ms.

Ellis is asking this court to revisit the sentencing range established in Smith as it applies to the individuals who are the mostmarginalized, poor and struggling with substance use disorders who are selling small quantities of drugs for the primary purpose ofensuring their own drug supply. Based on the Smith range, Ms. Ellis would potentially be subject to a custodial sentence at the lowerrange of 18 months if the sentencing judge places little weight on her dated conviction for trafficking in 2003 and possibly up to 36months which is the sentence Crown is seeking in this case. [113] Ms.

Ellis asserts that selling drugs at the street level is distinguishable from those cases in which offenders sold large quantities offentanyl in an organized, and more sophisticated manner or where other serious aggravating circumstances are present: R v Nelson, 2019 BCPC 168: Fentanyl with a potential street value of $500,000 found in a storage locker connected with Ms. Nelsonincluding a little over $120,000 cash. A three year sentence was imposed. R. v.

Mann and Mann (supra): Both accused were operating a mid level distribution scheme and were mixing fentanyl with other drugsusing very primitive tools, displaying an extreme indifference to human life. This was found to be more than street level trafficking.Other serious aggravating factors were present, including trafficking carfentanil in the case of one accused, and that both were motivatedprimarily by greed and profit. One accused received a global sentence of five years, the other – seven years. Both sentences were upheldon appeal.

[ 114 ] In R. v. Schneider , 2019 BCCA 310 , the Court of Appeal clarified that Smith did not stand for the proposition that jail sentences must be meted out to all people who sell drugs that contain fentanyl. Mr. Schneider was homeless, living on the streets and sold $20 worth of heroin containing fentanyl to an undercover officer. He had completed a number of programs and had been doing well in his efforts towards rehabilitation. Crown, as in this case, sought a three year jail sentence, Mr. Schneider sought a two year suspended sentence with strict conditions.

The sentencing judge, emphasising the need for general deterrence and citing Smith , imposed a custodial sentence of 20 months plus two years probation. In replacing the sentence with a three year suspended sentence, the unanimous court, which included Newbury, J.A. considered the individual circumstances of this accused and the offence and concluded this was relatively low on the scale of moral blameworthiness.

He was placed on 20 conditions including reporting to a probation officer, house arrest, a curfew and required to abstain absolutely from possessing or consuming drugs, alcohol or any other intoxicating substance. He was required to perform 100 hours of community work service. [ 115 ] Citing R. v.

Williams , 2019 BCCA 295 at para. 58 , the court reiterated that sentencing ranges are guidelines only and not intended to set out a baseline minimum or a maximum sentence in all cases: Individual circumstances of the offence or the offender may require an increase or reduction from the range of sentence in order to ensure that the sentence is a proportionate one that properly reflects the offender’s moral blameworthiness. [ 116 ] R . v. Parranto, 2021 SCC 46 allowed the Supreme Court of Canada to discuss and analyse the role of starting points or ranges in sentences handed down by appellate courts.

The two accused in that case had their sentences increased by the Alberta Court of Appeal from 7 and 11 years, to 10 and 14 years respectively for their involvement in a large wholesale fentanyl trafficking operation. Both accused appealed from that decision. [ 117 ] The court clarified that sentencing ranges are not binding in any sense and a sentencing judge retains discretion to take an individualized approach to sentencing to achieve proportionality and exceptional circumstances are not required when departing from a range or starting point to achieve proportionality.

However, the sentencing judge must provide reasons to demonstrate why a particular sentence that departs from a range is proportionate to the gravity of the offence and the moral blameworthiness of the offender: Parranto , para’s 36, 40.

While principles of denunciation and deterrence are generally reflected in ranges, they “cannot be allowed to obliterate and render nugatory or impotent other relevant sentencing objectives” including rehabilitation and restraint or “restorative justice principles to address the problem of over-incarceration in Canada”: Parranto , para. 45 . [ 118 ] Rowe, J., at para. 171, dissenting on the issue of starting points in sentencing, but not on this issue or the result, provided further context: Unlike starting points, ranges are not presumptions.

Sentencing judges do not have to begin their analysis at the range and adjust the sentence to reflect the individualized circumstances of the accused. Ranges simply demonstrate the typical breadth of sentences for an offence. In considering the gravity of the offence and the moral blameworthiness of the offender together, they allow judges to give full effect to both of these elements. [ 119 ] Sentencing ranges may be modified once established, at para. 26: A final point that merits discussion is how a range or starting point is modified once it has been established.

The Court of Appeal for Ontario has described how ranges vary: “Ranges” are not embedded in stone. Given their nature as guidelines only, I do not view them as being fixed in law, as is the case with binding legal principles. They may be altered deliberately, after careful consideration, by the courts. Or, they may be altered practically, as a consequence of a series of decisions made by the courts which have that effect.

If a range moves by virtue of the application of individual cases over time, it is not necessary to overrule an earlier range that may once have been in vogue; it is only necessary to recognize that the courts have adapted and the guidelines have changed. [cite omitted] [ 120 ] Moldaver, J., dissenting on the issue of starting points in sentencing but not on this issue or the result, wrote separately about the gravity of largescale trafficking in fentanyl for personal gain and the need to impose severe penalties for those who do so.

He was careful to point out that his comments did not apply to sentences for street-level trafficking or where traffickers are motivated by a need to support their own addiction: para. 99. He recognized that the type of trafficking seen in that case, is a crime that “preys disproportionally on the misery of others – the marginalized and those whose lives are marked by hopelessness and despair”: para. 101. [ 121 ] Dr. McNeil’s evidence is helpful in assessing Ms. Ellis’ moral blameworthiness.

He described that based on the research as well as his observations and experience, people addicted to substances, including a substantial percentage (40% to 50%) of those who are addicted and who sell drugs at the street level, were some of the most marginalized people he has ever seen.

These were people who would come to an appointment with the research team because they were given a dollar or two to attend. [ 122 ] Proportionality in sentencing is best understood as an assessment of the gravity of the offence and the degree of responsibility of the offender and is one of the most fundamental tenets of our criminal justice system. That is why people who commit offences while suffering from a mental disorder that renders them not criminally responsible, are not held criminally responsible for their actions.

Similarly, mental health disorders that play a role in an offence are considered in assessing a fit and just sentence and will generally reduce the offender’s moral culpability. In those cases, emphasis is placed on rehabilitation and, in the context of the criminal justice system, doing the best it can to ensure that these offenders receive appropriate medical and psychiatric/psychological care. Rehabilitation in that context also serves other objectives of sentencing, in particular, the protection of the community. [ 123 ] As stated by Ms.

Ellis in her submissions: Addressing drug use and the corresponding opioid crisis first requires an end to stigma and criminalization, to be replaced by increased social supports: i.e. comprehensive, integrated health care that addresses physical and mental health needs, provides addiction treatment,

and offers individualized support in accessing necessary services, such as housing and harm reduction. At the point of sentencing, rehabilitation must replace denunciation and deterrence as the primary sentencing principle. [ 124 ] Sentencing judges often indicate that an offence related to an underlying substance use disorder – a drug addiction – is an important factor to be taken into account in assessing an appropriate sentence.

However, since the Smith decision, judges are routinely asked to follow that range when sentencing people who sell drugs – fentanyl – at the lowest levels and who do so to support an addiction.

Unless there are exceptional circumstances such as someone remaining abstinent from drugs, completion of treatment programming or who has completely turned their lives around, a first time offender may well find themselves sentenced to jail for one and a half years. [ 125 ] 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 substantially 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. These individuals have substantially more resources which allows them to operate in a clandestine fashion and I accept that it can be extremely difficult for police to find and prosecute these individuals. The street level addict sellers are the easiest to locate – they are the most visible, most marginalized and least sophisticated.

These are the people who are selling opioids primarily to ensure their own supply of drugs and stave off withdrawal. [ 126 ] In assessing Ms.

Ellis’ moral culpability, I have consider the following factors: ➢ She was selling drugs to support her own need for drugs rather than purely for greed or money; ➢ She was exposed to substances at an early age (Grade 3) which led to her addiction and which I consider severe; ➢ The relationship between her addiction and her life circumstances which include significant past trauma, poverty, mental health challenges, MCFD involvement in her family, unstable employment and unstable housing; ➢ She is at the lower level of those who sell drugs; ➢ She was selling small quantities of drugs and in a very unsophisticated manner – for example, she used her own name and was driving her mother’s car; ➢ This offence occurred only three months after the death of her long time partner when she was particularly emotionally vulnerable; ➢ It was shortly after her partner’s death that she was given drugs by her supplier on credit and ended up selling drugs to maintain her own supply and avoid withdrawal; and ➢ Her many, but ultimately unsuccessful, attempts at treatment in abstinence based programs. [ 127 ] In weighing the objectives of denunciation and deterrence, I have considered the following factors: ➢ Dr.

McNeil’s evidence that evidence-based treatment is the most effective deterrent for people suffering from a substance use disorder; ➢ Dr.

McNeil’s evidence that the methodologies traditionally used to treat addiction, including jail, do not address the underlying factors that lead people into addictions in the first place or that contribute to a much poorer outcome; ➢ The acceptance by numerous law enforcement agencies, government, medical professionals and many others - that drug addiction is a health or medical condition; and ➢ Growing public and health initiatives to provide a safer drug supply to people who are addicted. [ 128 ] Selling fentanyl is a serious offence. Fentanyl is dangerous, it is ubiquitous and people are dying because of it.

However, I have concluded that because of the factors I have just summarized, Ms. Ellis’ morally blameworthiness is significantly reduced. She herself is one of the marginalized, vulnerable individuals who are preyed upon by those who manufacture and distribute fentanyl at the higher levels of drug operations. The principle of proportionality allows me to revisit the sentencing range for low-level street-level drug addict sellers and, in particular, for Ms. Ellis. I turn now to consider additional factors specific to her, including aggravating and mitigating circumstances. [ 129 ] Ms.

Ellis has a prior conviction for trafficking. It is dated and relates back to a conviction date of September 22, 2003. I have no information about that offence, when it occurred, what the circumstances were or what substance was involved. It is very likely that it did not involve fentanyl. [ 130 ] Crown asks me to consider the fact that the drugs sold in this offence contained fentanyl are an aggravating factor. In my view, that would be double counting because the very sentence sought by Crown reflects the fact that the substance sold contained fentanyl.

Furthermore, I accept the evidence that fentanyl is in almost every drug bought and sold and that heroin essentially is non-existent, having been replaced by fentanyl. [ 131 ] I consider it aggravating that her young nine-year-old daughter was in the car when she met with the undercover officer to sell her drugs, but, I also take into account that the child was not in the car for the majority of the meeting, but only at the end of the meeting and for less than a minute. [ 132 ] It is mitigating that Ms. Ellis has pleaded guilty for these charges and spared the state the expense and time of a trial.

[ 133 ] I take into account that Ms. Ellis has what appears to be a se

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