Michael Ford (post until Oct. 31/19)
Civil Litigation, Criminal

Rehabilitation preferable to lengthy sentences in fentanyl cases

Fentanyl is a dangerous drug and in a league of its own from a potency perspective — but from a criminal justice view, it is important that sentences reflect societal values, with money spent on rehabilitation instead of more prisons, Toronto criminal and civil litigator Laurelly Dale writes in The Lawyer’s Daily.

As Dale, principal of Dale Legal Firm, explains, fentanyl has hit plea courts, with sentences feeling like they range from high to higher, “rendering early resolution an impossible feat.”

Fentanyl, writes Dale, was synthesized in 1960 and is an opioid analgesic about 50 to 100 times more potent than morphine. Initially, it was primarily used as a safety tool during surgery.

It became accessible to the public when it was being used to treat chronic and severe pain and its popularity exploded in Canada in late 2015. The drug is found in patch form, flap, tablet and sometimes lollipops, she says, and is frequently manufactured in labs in China.

“In British Columbia, 931 people fatally overdosed in 2016. Ontario has not released its 2016 numbers; however, it did report 718 deaths from opioid-related toxicity in 2015. Most sentencing judges give impassioned speeches about the destruction intertwined with the drug,” writes Dale.

In terms of sentences, she says a total of 524 cases appear when searching “fentanyl” in Lexis Advance Quicklaw, the bulk of them occurring from 2010 and onward. Sentences appear to start at six months for simple possession, she writes, to 16 years for trafficking 27,000 fentanyl pills.

In one case, Dale says, “the judge noted that the ‘starting point’ for fentanyl sentencing was in the range of at least five years. The accused sold a small amount of fentanyl to an undercover officer. Defence and the Crown joined in on a submission of 3.5 years subsequent to receiving a positive pre-sentence report and lack of record.”

Defence counsel facing a fentanyl sentencing fear double-digit sentences and Crowns are less likely to obtain early resolution because of the high goalpost, Dale writes.

“Faced with this uphill battle, there are submissions counsel can make to either pitch a lower sentence or put forward a joint submission that will not get jumped. Including background will convince the trier of fact that you are well versed in the history of this Schedule II substance.”

Also, concede its destructive nature, Dale suggests.

“Rehabilitation should be the primary sentencing principle utilized on behalf of those convicted of simple possession. These accused likely suffer from a troubled past and are addicted to opioids. In response to the length of sentence, macro-level comments relating to general deterrence should be considered.”

Dale notes that recent research found that lengthy prison sentences are unlikely to deter the general population from producing, possessing and trafficking drugs. General deterrence and denunciation, she says, may be obtained by shorter custodial sentences followed by conditions as close to house arrest on a lengthy probation order.

“It is important that sentences reflect societal values. Money should be spent on rehabilitation, setting up naloxone centres (the antidote) and stopping the manufacturers in China, not creating more prisons in Canada,” writes Dale.

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