Jail deemed too dangerous for fentanyl trafficker
Nanaimo judge says danger of dealer-addict relapsing outweighs 'unknown benefit of general deterrence"
Despite acknowledging that an admitted fentanyl trafficker may well have contributed bodies to Nanaimo's soaring overdose death rate, a provincial court judge has opted to keep the 22-year-old out of prison.
The reason? Judge Ted Gouge decided the pressure on Aden Lee Aaron Rutter to smuggle drugs into jail might be too great for the recovering addict to keep on the straight and narrow.
Instead, Gouge gave Rutter a suspended sentence and three years probation for one count of trafficking in fentanyl and one count of trafficking in cocaine.
The decision adds yet another varying precedent to a body of legal rulings which appears to be all over the map when it comes to dealing with B.C.'s fentanyl crisis.
'A violent response from other prisoners?'
If he does what he's told, Rutter — a first-time offender — will serve no time for selling a drug responsible for 42 deaths in Nanaimo in the first six months of 2016 alone to addicts who thought they were getting heroin.
"It would not be surprising to learn that one or more of the fatal fentanyl overdoses in Nanaimo in 2015 were customers of Mr. Rutter who overdosed because they believed they were injecting heroin," Gouge wrote in his decision.
But Rutter has expressed remorse, found a new partner, had a year of abstinence and has held a job for six months. Gouge claimed all that might go out the window with a stint behind bars.
"A prisoner, like Mr. Rutter, who has a history of trafficking and recent connections with drug suppliers, will face greater pressure from other prisoners than an offender without connections in the drug trade. It is likely that a refusal by Mr. Rutter to smuggle drugs into jail would elicit a violent response from other prisoners," Gouge wrote.
"I do not think that it would be just to impose a sentence which would require him to choose between: (i) trafficking narcotics; or (ii) exposing himself to a significant risk of a very serious assault if he refused to do so."
'Traffickers cannot be wilfully blind'
But that's almost exactly what happened in Campbell River just one month earlier, where an offender caught in very similar circumstances got a year in jail precisely because he was dealing fentanyl.
Like Rutter, Tylor Michael James Derycke had been an addict since he was a teenager; he also sold fentanyl to support his addiction.
Like Rutter, he pleaded guilty at an early stage to involvement with a dial-a-dope operation. And like Rutter, he also claimed he didn't know the heroin he was selling was laced with fentanyl.
The main difference between the two appears to be that Derycke had a prior criminal record, where Rutter did not. Although the fentanyl trafficking charge was Derycke's first drug-related offence, and Rutter breached his bail by using a cell-phone.
Derycke's lawyer asked for six months, which is at the low end of the normal range of incarceration for a dial-a-dope drug trafficker. The high end is nine months.
Judge Barbara Flewelling said Derycke's sentence should send a "clear message" that "drug traffickers cannot be wilfully blind to the nature and consequences of the drugs" they sell.
"In determining where in the range of a fit sentence Mr. Derycke would fall, I am entitled to consider the dramatic rise in fentanyl-related overdose deaths and the public health emergency that has been declared in British Columbia and in other provinces," Flewelling wrote.
'Personal significant responsibility' for crisis?
A total of 555 people died of drug overdoses in British Columbia in the first nine months of 2016, a figure already higher than the death toll for all of 2015. Fentanyl has been detected in more than 60 per cent of the deaths.
Those numbers have prompted the declaration of a public health emergency and promises from government of greater help for the afflicted and greater enforcement for those who would target addiction for profit.
But the courts appear divided on whether or not judges should be the ones responsible for making a statement, as opposed to Parliament.
This summer, a judge in B.C. Supreme Court in Kelowna said the law doesn't treat fentanyl differently from other Schedule 1 drugs like cocaine and heroin. Justice Hope Hyslop said legislators should draw the distinctions.
Meanwhile another Crown prosecutor, in yet another case involving a major Lower Mainland drug trafficker, wants a Richmond provincial court judge to sentence an unrepentant high-level fentanyl dealer to 18 years in jail.
Walter James McCormick's lawyer has argued that he should get half that time.
But in making his case for what he admitted was an "incredibly high and harsh" sentence, Crown counsel Oren Bick said dealers must "bear personal significant responsibility for hundreds of fentanyl-detected deaths in British Columbia."
'However, that does not assist me ...'
All judges work with the same set of guiding principles. And in the cases at hand, they all cite the same precedents, to different effect.
They have to figure out a balance between what it takes to specifically deter individuals like Rutter or Derycke from re-offending while more generally deterring others from following in their footsteps.
A sentence also needs to express the public's general denunciation of the crime in question.
The Crown asked for an eight-month sentence for Rutter.
Gouge considered intermittent 90 day sentences for each of the two counts. That would have allowed Rutter to keep working.
The judge said he was aware of other cases which put denunciation and deterrence as primary sentencing objectives in drug cases.
"However, that does not assist me when I am trying to weigh the risk to public safety which I believe would result from a jail sentence for Mr. Rutter (because I think that he would be a serious risk to re-offend upon his release) against the reduced risk to public safety which might result if other traffickers and potential traffickers were deterred by a jail sentence for Mr. Rutter," Gouge wrote.
"In the end, I think that the known reduction in risk to public safety which would result, in this individual case, from a suspended sentence and probation is more likely to benefit the public than the unknown benefit of general deterrence which might result from a jail sentence."
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