In R v Felix, the Alberta Court of Appeal (ABCA) set guidelines for fentanyl trafficking sentencing. The Court found that sentencing for wholesale trafficking fentanyl should start at nine years. This guideline may increase sentences in future fentanyl trafficking cases.
What is Fentanyl?
Fentanyl is an opioid drug, similar to morphine or heroin. Opioids are prescribed pain-relievers. Fentanyl is much stronger and more dangerous than other opioids. Fentanyl is 80 to 100 times stronger than morphine and up to 50 times stronger than heroin. Like other opioids, fentanyl slows a person’s breathing. Because fentanyl is much stronger than other opioids, even a small dose can kill a user. Fentanyl deaths in Canada continue to climb. In Alberta, the number of deaths has increased two-fold every year for the last number of years. In 2018, 801 people died of fentanyl-related overdoses. For more information about fentanyl use in Alberta, see the Alberta Opioid Reports.
The Controlled Drugs and Substances Act (CDSA) criminalizes drug trafficking in Canada. Mr. Felix was charged with fentanyl trafficking. Fentanyl trafficking is prohibited by section 5(1)(3) of the CDSA. Sentences for fentanyl trafficking varied considerably. On the lowest end, the penalty could be as little as two years. The maximum sentence for trafficking fentanyl is life in prison. Not all trafficking convictions are sentenced the same. Courts categorize trafficking between wholesale and commercial operations. It is sometimes difficult to tell the difference between wholesale and commercial trafficking. Wholesale trafficking involves larger quantities of drugs. Wholesale trafficking operations are usually more complex than commercial operations. The Court considers wholesale operations more serious. These operations tend to be more dangerous and affect many community members. Sentences are typically higher for wholesale trafficking than commercial operations.
Mr. Felix was charged and convicted of four counts of trafficking in fentanyl and cocaine. The charges resulted from an undercover police operation in 2015. During the operation, an undercover cop bought cocaine and fentanyl from Mr. Felix six times. Over six months, the undercover officer bought over two-thousand Fentanyl pills and 2.5 kilos of cocaine. In total, the drugs cost more than $170,000.The Crown asked for a ten-year sentence. The Crown argued that this sentence was appropriate because of the number of aggravating factors. Mr. Felix’s high position in the organization was described as an aggravating factor. Other factors included the financial motive and the elaborate nature of the drug-running scheme. The Crown also argued that the seriousness of the drugs sold should factor into the sentence length. The defence suggested a two-year sentence. Defence counsel argued that Felix’s education and community involvement supported this lower sentence. Other mitigating factors included that Mr. Felix had no criminal record and plead guilty. The trial judge sentenced Mr. Felix to seven years. At the time of Mr. Felix’s sentencing, there was no starting point for fentanyl trafficking.
R v Felix: The Appeal
On appeal, the ABCA overturned this sentence. The Court handed out a ten-year sentence instead. The Court of Appeal found that the trial judge had not differentiated between commercial and wholesale trafficking. The Court found that Felix made several comments suggesting he was in a high position in the drug operation. For example, he called himself “the boss.” Felix also talked about firing certain employees. These statements suggested that Mr. Felix was the controlling mind behind the operation. The Court wrote: Mr. Felix “energetically ran a business that was structured to maximize profit while minimizing the chance of criminal consequences to himself. He was responsible for pouring poison into his own community and potentially others, jeopardizing the health and lives of untold numbers of end users.”
The Court of Appeal also created a nine-year starting point for wholesale fentanyl trafficking. Alberta Court of Appeal decisions are binding on all lower courts in the province. This means that all future Alberta judges must consider the starting point when sentencing fentanyl traffickers.
What is a Starting Point?
Starting point sentences are the lowest recommended sentence for a particular crime. Alberta first used the concept in R v Maskell. In Maskell, the ABCA created a 3-year starting point for cocaine commercial trafficking. A starting point sentence assumes the offender does not have a criminal record and is of good character. Drug trafficking starting points are based on the drug’s dangerousness and the level of the offender’s involvement.
Starting Points vs Mandatory Minimums: Is There a Difference?
It is important to recognize that a starting point is not the same as a mandatory minimum. The government enacts mandatory minimums. A mandatory minimum is the lowest sentence a person can receive. Judges are bound by mandatory minimums even if factors suggest the accused deserves a lower sentence. Examples of mandatory minimums include minimum sentences for first and second-degree murder. More recently, mandatory minimums have been created for certain drug and firearms offences. More information on mandatory minimums is available in the following report. Unlike mandatory minimums, judges are not required to follow a starting point. A starting point is meant to provide a guideline for sentencing judges. If the circumstances are appropriate, judges can give sentences below or above the minimum. However, judges are expected to identify the circumstances that justify giving a sentence below the starting point. Therefore, a starting point sentence changes a judge’s analysis. The main concern over starting points is that judges may treat them as mandatory minimums. Although not required, judges often sentence accused to the starting point, even when factors may favour a lower sentence. Courts have also debated the merits of starting points. In 2015, the Supreme Court addressed the issue of starting points in R v Lacasse. This decision emphasized that sentences should not be set by a rigid standard. Sentences should consider the sentencing principles outlined in s. 718 of the Criminal Code. One of the fundamental principles is that the sentence reflects the seriousness of the offence and the degree of the offender’s responsibility. Similar sentences should be given to similar offenders in similar circumstances. However, the Court emphasized that discretion is essential to the sentencing process.
Fentanyl has been declared a crisis in Canada. To combat the rise in fentanyl trafficking, the ABCA has established a starting sentence for fentanyl. Starting points are not without concern. Discretion in sentencing is an essential component of a just system. Judges should not feel compelled to adhere to starting sentences when circumstances favour a lower sentence.