Lawyer says 9-year starting point sentencing for 'wholesale' fentanyl trafficking could be misused
Edmonton criminal defence lawyer Paul Moreau says starting point sentences are often misunderstood
An Edmonton criminal defence lawyer who specializes in drug trafficking cases says he is concerned by a recent Alberta Court of Appeal ruling that established a nine-year starting point sentence for wholesale fentanyl trafficking, saying it could easily be misapplied in future.
Paul Moreau was one of the lawyers representing Cameron O'Lynn Parranto at Alberta's highest court in his appeal of charges of fentanyl possession for purpose of trafficking.
A five-judge panel heard Parranto's appeal along with that of another defendant, Patrick Felix, who had been previously convicted of four counts of drug trafficking.
In a ruling released Thursday, the judges unanimously sentenced Felix to 10 years' imprisonment, setting a nine-year starting point sentence for wholesale fentanyl trafficking in the process. The judges applied that starting point logic when sentencing Parranto.
"Our concern, principally, is that starting points are often misapplied and misunderstood to be effectively a minimum sentence, which they are not meant to be," said Moreau, a former Crown prosecutor.
A mandatory minimum sentence is compulsory, while a starting point sentence is meant to be a benchmark used in future sentencing decisions.
"The entire concept of starting point sentences is very much under review," Moreau said. He said this nine-year sentence is the longest such starting point sentence the Alberta Court of Appeal has established.
In the Felix ruling, the judges concluded a wholesale operation is one that traffics or distributes drugs on a large scale, possibly for resale.
But Moreau said judges in future sentencing decisions may have a difficult time determining whether that definition fits the cases before them.
"When you try to take that concept and apply it to new cases, it becomes very problematic to define what is wholesale versus what is commercial trafficking, and what starting point applies," he said.
"So these starting point decisions can be very challenging for trial judges to try to apply."
Crown asked court to establish starting point sentence
The Crown had appealed both Felix's and Parranto's original rulings to the Court of Appeal, arguing the sentences imposed by the trial judges were insufficient.
"At the core of this appeal is the Crown's argument that a 'notional starting point' of nine years' incarceration applies to wholesale fentanyl trafficking," Justice Jolaine Antonio wrote in the Felix ruling.
"In effect, this Court has been asked to concretely establish such a starting point in Alberta."
Felix was a drug dealer the court concluded ran a sophisticated drug trafficking operation in Fort McMurray. He sold drugs to an undercover police officer on six separate occasions in 2015, providing nearly 2,400 fentanyl pills and 2.5 kilograms of cocaine for an agreed total price of $173,400.
The Court of Appeal judges found the original sentence Felix received was inadequate, in part because the sentencing judge failed to adequately distinguish commercial trafficking from wholesale trafficking, and failed to properly account for his role in the drug-trafficking organization.
"He energetically ran a business that was structured to maximize profit while minimizing the chance of criminal consequence to himself," the ruling reads. "He was responsible for pouring poison into his own community and potentially others, jeopardizing the health and lives of untold numbers of end users.
'Fentanyl trafficking has created a crisis in Alberta'
When considering whether a starting point sentence should be set, the judges cited fentanyl's potency and its role in the deaths of hundreds of Albertans every year.
"Fentanyl trafficking has created a crisis in Alberta, as in the rest of the country," the ruling states. "It falls to the courts to protect the public by imposing sentences that will alter the cost-benefit math performed by high-level fentanyl traffickers."
Like Felix, Parranto had pleaded guilty to the drug charges he faced. In 2016, police previously recovered fentanyl, methamphetamine, cocaine, morphine pills, and oxycodone pills while executing a search warrant at his Edmonton home.
They also found more than $55,000 in cash, a loaded handgun with the serial number removed, police and sheriff badges, body armour, a dozen cell phones, scales, and a cash counter.
Parranto was charged and released, then arrested three months later with an even greater quantity of fentanyl, as well as other drugs.
In an agreed statement of facts, Parranto admitted he was in possession of the drugs for the purpose of trafficking in a wholesale commercial operation.
His trial judge sentenced him to 11 years for both sets of offences. In the Court of Appeal's ruling Thursday, the judges increased that sentence to a total of 14 years, with credit for pre-sentence time served.
Moreau said he is still absorbing the Court of Appeal ruling and does not know yet whether Parranto will appeal it.