“Accepting, as I do, that crack cocaine and methamphetamine are as harmful as heroin to the individual user, I still find no basis on the evidence before me to conclude that the disparity in sentence is a result of heroin being over-punished, rather than crack cocaine and methamphetamine being under-punished,” wrote Justice Nancy Spies in a new ruling from the Superior Court.
Spies was ruling on the sentencing of Luis Ramos and Gboyega Oyegoke, both found guilty early this year of trafficking heroin in 2009, in light of a defence submission that the sentencing range for the drug is disproportionately high given that it isn’t “the worst of the hard drugs.”
Among defence lawyer Corbin Cawkell’s arguments for his position was the evidence of Jeffrey Stein, executive director of Just for Today Harm Reduction Services, who, according to Spies, suggested heroin “is just as bad as crack cocaine and methamphetamine in terms of harm to individual users; on balance they are all equal in terms of harm. In fact, in his opinion, alcohol is the worst drug out there.”
Cawkell also suggested Canada’s harsh sentencing approach to heroin originally stems from discrimination against Chinese railway workers in the 1900s that included negative generalizations about their use of opium, Spies noted.
“In an attempt to neutralize this ‘threat,’ the Canadian government, based on a report by then-Deputy Labour Minister, W. L. Mackenzie King, enacted the Opium Act in 1908, which was the first attempt to criminalize a narcotic in Canada,” wrote Spies in R. v. Ramos.
But Spies rejected this line of reasoning, noting heroin isn’t the same as opium and “there is no evidence that the courts have set ranges for sentencing for heroin offences based on possible racist motivation behind making opium illegal.”
In her findings, Spies found the sentencing ranges for the quantities of the drug found to be at issue in Ramos were higher for heroin than for crack cocaine or methamphetamine. She found the range be eight to 12 years for heroin; and five to eight years for crack cocaine and methamphetamine. She then traced case law dating back to Pushpanathan v. Canada (Minister of Citizenship and Immigration) in 1998 in which the Supreme Court of Canada suggested heroin was “the most dangerous of the illicit drugs.”
“It does appear, at least from the cases brought to my attention, that since Pushpanathan, courts at all levels in Ontario have generally accepted the proposition that ‘heroin is the worst of the worst,’” wrote Spies.
Ultimately, Spies came to accept crack and meth are likely just as bad. “In my view it may be time to recognize that all hard drugs are equally insidious and that they should be treated as equally evil in terms of sentencing,” she wrote.
But rather than accede to the submission that the defendants should get the lower range for crack or meth, she agreed with the Crown’s submission that “as a matter of logic and common sense, if another drug is equally harmful and dangerous, or more so, then the range for that drug should increase. Another drug being as bad as, or worse than, heroin does not make heroin any less harmful or dangerous, and thus heroin’s range should not change. In short, I am not persuaded on this record that the sentencing range established for heroin infringes the principle of proportionality.”
So the defence was able to persuade the judge on some aspects of its arguments, but the final result wasn’t any better for either the defendants or future traffickers of crack and meth. Ramos and Oyegoke both got eight-year sentences while Crown prosecutors may now use Ramos as licence to seek higher ranges for crack and meth.