Jail not the answer for people caught dealing fentanyl to support their own drug addictions, B.C. judge says

A Vancouver Island judge says courts need to reconsider automatic jail sentences for people caught dealing fentanyl to support their own drug addictions.

In a ruling likely to send shockwaves through B.C.'s justice system, Campbell River Provincial Court Judge Barbara Flewelling last week broke with years of precedent set by the province's top court — suspending a sentence for a woman facing up to three years in jail for trafficking in fentanyl and placing her on probation instead.

Sarah Runyon, the defence lawyer who won the case, said the ruling has the potential to be groundbreaking.

"It's really just forcing the court to step back and say, 'Wait a minute, are we really just playing whack-a-mole here?' Taking one marginalized street person, throw them into custody [then] somebody else pops up, and what problem are we really solving?" Runyon told the CBC.

"It's important because it's re-evaluating our approach to punishing people who use drugs and sell drugs to survive."

'She appeared very sad and defeated'

The decision centred around the harrowing testimony of Tanya Lee Ellis, a 43-year-old woman who sold spitballs containing fentanyl to an undercover RCMP officer in late 2019.

The Crown was asking for a three year prison sentence.

According to Flewelling, Ellis testified candidly about her life and her addiction. She grew up watching her father assault her mother. She was introduced to crack cocaine by an older man in Grade 8, and she started using heroin in her 20s.

The father of her two daughters spent significant time in jail before dying of a suspected overdose two days after they had both completed treatment at a five-day residential facility.

She was heartbroken.

She told the judge what it was like to be addicted, saying her arms are scarred so badly she has to wear long sleeves.

"My veins are collapsed," she said. "I ... have to go in my feet sometimes, which is painful … it's 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, [I] drink water, whatever I can do.  But still it's …  absolutely disgusting."

Ellis had one prior conviction for trafficking almost 20 years ago and numerous busts for shoplifting since. She has spent a total of 240 days in jail spread over two decades and has been on constant probational supervision.

"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," Flewelling wrote.

"She appeared very sad and defeated."

Higher court ruling not a 'strait jacket'

In 2017, B.C.'s Court of Appeal bumped the range of sentencing for first-time offenders convicted of trafficking in fentanyl to between 18 and 36 months. Before that it had been about six months.

Flewelling said at the time of that decision, the public was just becoming aware of the toxicity and supply of fentanyl.

A change in approach to punishment was warranted by "the proliferation of fentanyl and the fatal consequences of its illegal sale and distribution," the appeal judges said.

Lower courts usually follow the path set by higher courts, but Flewelling said the practice is not a "straitjacket" and "trial courts can reconsider binding precedent if there has been a shift in the legal or social landscape."

Flewelling heard testimony from Dr. Ryan McNeil, the director of harm-reduction research for the program in addiction medicine at Yale University in New Haven, Conn., who said he didn't know Ellis personally, but that her story was common.

McNeil, an affiliated assistant professor at the Vancouver-based University of British Columbia, said incarceration doesn't reduce overdose risk. Instead, the period after release from jail represents "some of the greatest overdose risks that a person can have," he said.

'How many more deaths?'

The judge cited a statement last month from B.C. Chief Coroner Lisa Lapointe, who said the province is on track for another record-breaking year for deaths from toxic drugs.

"Criminalizing those who use substances has done nothing to address this complex health issue and has resulted in greater suffering and marginalization," Lapointe said.

"How many more deaths are we willing to accept to maintain drug policies and laws that have no basis in evidence?"

Flewelling said a "fundamental shift" has occurred in the time since the appeal court decision in society's understanding of drug addiction and its relationship to low level trafficking by people desperate to avoid withdrawal.

She concluded the sentencing range should reflect the difference in "moral culpability" between street dealers like Ellis and people higher up the chain.

"Assessing a fit and just sentence is probably one of the most difficult tasks a judge undertakes in her judicial career," Flewelling wrote.

"I conclude that drug addicts who sell small quantities of drugs at the street level for the primary purpose of ensuring their own drug supply, are far less morally culpable than those farther up in the hierarchy. They are motivated, not for profit or greed, but to ensure their own supply and to avoid the severe effects of withdrawal."

The judge suspended sentence and gave Ellis a year's probation, during which she has to keep the peace and be of good behaviour.

Runyon said the Crown will likely appeal the decision. She says the case could go all the way to the Supreme Court of Canada.