Substance disorder not enough to revisit higher-range penalty for fentanyl sale: BC Court of Appeal

Departure from established sentencing range doesn't require exceptional circumstances

Substance disorder not enough to revisit higher-range penalty for fentanyl sale: BC Court of Appeal
Street-level sale of fentanyl is punished by a penalty higher in range than heroin.

Exceptional circumstances are not necessary for the departure of the materially higher but generally acceptable sentencing range for first-time offenders who sell fentanyl, the British Columbia Court of Appeal has ruled.

In R. v. Ellis, 2022 BCCA 278, Tanya Ellis pleaded guilty to two offenses under the Controlled Drugs and Substances Act. The offences involved fentanyl and cocaine mixed with fentanyl. R. v. Smith, 2017 BCCA 112 established the generally applicable sentencing range for first-time offenders who sell fentanyl at street level. The penalty, 18-36 months’ imprisonment, is “materially higher” than what is considered acceptable for other dangerous drugs like heroin.

Ellis appealed her sentence, arguing that Smith should not apply to those trafficking at the street level since they suffer from substance disorders and need money for their use.

The judge agreed and found that Smith did not apply to street-level offenders. She sentenced Ellis to a “restorative” suspended sentence with 12 months’ probation. Ellis was not a first-time offender.

The Crown appealed the sentence, alleging errors in principle and that the sentence is demonstrably unfit.

The appellate court agreed.

While Ellis likely faced considerable hardships, the judge committed several errors in principle that materially impacted the sentence, said the appellate court.

Revisiting Smith unnecessary; departure does not require exceptional circumstances.

The appellate court found that the judge’s conclusion stemmed from an error in viewing Smith as tightly circumscribing a court’s discretion. Exceptional circumstances are not required to justify a departure from the Smith range, and neither should Smith be revisited because of a material change in societal attitude that departs from it, said the appellate court.

The judge’s approach failed to maintain a distinction between offence-based considerations and factors relevant to an offender’s moral culpability, consequently raising the potential for a skewed proportionality analysis, said the court.

As such, the appellate court was constrained to issue a new sentence to Ellis.

The appellate court considered denunciation and deterrent as factors in determining an appropriate sentence and found that evidence-based medical treatment was Ellis’ greatest hope of rehabilitation rather than imprisonment. Given that Ellis suffered from an addiction and sold fentanyl to support her habit, the appellate court agreed that a suspended sentence was appropriate.

The appellate court allowed the appeal and varied Ellis’ sentence to a suspended sentence with three years’ probation.

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