The B.C. Court of Appeal has ruled that given the devastating impact of the fentanyl crisis, those convicted of trafficking the drug should face tougher sentences.

The current sentencing range is between six and 12 months in prison. A panel of B.C. Court of Appeal judges said a sentence of between 18 and 36 months is more suitable.

In a written decision issued earlier this week, the justices highlighted the enormity of the crisis.

"Fentanyl is a scourge. It poses intolerable risks of accidental overdosing because it is so much more powerful than morphine," said Justice David Harris.

"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."

Crown pushed for 18 to 36 months

The case stems from the conviction of 59-year-old Frank Smith. He pleaded guilty to one count of possession of cocaine and one count of possession of fentanyl. Smith — who was a first time offender — was sentenced to six months in prison.

Crown lawyers appealed that decision, citing the dangers of fentanyl and the scope of the public health emergency. They pushed for a sentencing range of between 18 and 36 months in prison for cases involving the street-level sale or distribution of fentanyl to address what it called "the public's legitimate sense of moral outrage" over the distribution of the drug.

The B.C. Court of Appeal dismissed the appeal, because Smith's crimes were committed before the full extent of the fentanyl crisis was understood, but agreed with the Crown's submission that dealers need to be treated more harshly.

It's not the first trafficking case in which higher court justices have cited the impact of the fentanyl crisis.

In January, Walter James McCormick — who already had an extended history of drug trafficking — was sentenced to 14 years in prison. It was the first major fentanyl-related sentencing in B.C. since the opioid overdose crisis began. 

Punitive, deterring effect

The judge emphasized denunciation in her ruling, stating that the skyrocketing increase of fentanyl-related deaths in B.C. could not be set aside when deciding the sentencing range.

Dr. Perry Kendall, B.C.'s provincial health officer, and co-chair of the province's overdose task force, said stiffer sentences could be one component in the fight against fentanyl.

"Simply prohibiting and increasing penalties without resources to support and educate haven't been terribly effective," he said. "[But] you need to do a number of things to limit the supply of drugs on the street."

Although Kendall had spoken out earlier against stiffer sentences because many dealers didn't know their drugs were laced with fentanyl, he said things have now changed.

"That was true at that point in time," he said. "There's virtually no drug that doesn't contain fentanyl."

'Tough-on-crime' doesn't work, says advocate

Adrienne Smith, a drug policy lawyer, said the Court of Appeal decision clarified the sentencing range for fentanyl-related crimes the law but doesn't believe the answer is the "tough-on-crime" approach.

"We know that's not having a beneficial effect on the ground in our communities," said Smith. "Fentanyl will continue to be trafficked despite the sentences people get for trafficking it."

Smith said there needs to be a health-care focus on treating those who are addicted, and added many people in the Downtown Eastside are drawn into dealing drugs as a way to fuel their own addiction.

"Treating all dealers like villains and all users like victims really loses track of that complicated social combination," said Smith.

With files from On the Coast