R. v. Felix: The Hammer drops on Wholesale Fentanyl Trafficking

starting point sentence

On November 28^th, 2019 the Alberta Court of Appeal weighed-in on the issue of wholesale Fentanyl trafficking; it did so decisively and harshly. In R. v. Felix, 2019 ABCA 458, Madame Justice Antonio, writing for a unanimous panel, set the starting point sentence for wholesale Fentanyl trafficking or possession for the purpose of trafficking at 9 years incarceration. Let me say that again, 9 years. 

Felix-Calgary-drug-lawyer-blog-case-reference.pdf

starting point foreshadowed

As a Calgary drug lawyer who has represented clients involved in serious drug cases, I have long been warning about the dangers of Fentanyl trafficking – to both the trafficker and the consumer. My message has been simple: “traffic in Fentanyl and risk an extremely harsh jail sentence”. The fact is, the writing has long been on the wall. 

While all drug offences are taken seriously in Alberta, Fentanyl has attracted special attention because of the body count associated with the drug. In cases such as R. v. Fester, courts have recognized that Fentanyl is more dangerous and destructive to human lives than heroin. According to Felix supra, Fentanyl related deaths in Alberta have doubled each year for the last 5 years, with a predicated 500 fatalities in 2017.  Simply stated, produce a more than minimal body count and the police, Crown and Courts will take notice. 

Where it is difficult for the Government to hold accountable the medical profession – who arguably bears significant responsibility for the opioid crisis in Alberta and throughout the Country – holding non-prescription street traffickers responsible is more politically convenient and much easier.

Denunciation and deterrence has long been identified as the primary sentencing objective in drug trafficking cases. This is so because drug trafficking is often a non-impulsive, profit motive crime with some level of sophistication. In short, the planning and deliberation associated with drug trafficking increases its moral culpability. 

starting points not new in alberta

Starting point sentences are certainly not new in Alberta. Our Court of Appeal has set starting sentences for a variety of criminal offences. For instance, the starting point sentence for major sexual assault was set at three years for cases involving adult victims and 4 years in cases involving children (see R. v. Sandercock).  In R. v. Hajar, the Court echoed this starting point for cases of “sexual interference”.  The starting point for cocaine trafficking on more than a minimal scale was established at 3 years in R. v. Rahime. Wholesale commercial trafficking of cocaine was set at 4.5 years. In R. v. Ostertag the Alberta Court of Appeal established a 5 year starting point for low level heroin trafficking. Following the Court’s logic, since heroin is more dangerous than cocaine, it required a higher starting point and as such, since Fentanyl is more dangerous than heroin, the starting point must be greater than 5 years. 

With all this in mind, the Alberta Court of Appeal’s response in Felix is not at all surprising. In Felix, the Court also commented that having regard to the facts of the case, it would have sentenced Felix to at least 13 years, but declined to jump the sentencing position of the Crown. It is worth recognizing that drug trafficking is one of just a handful of offences in the Criminal Code carrying a maximum "life sentence".

The takeaway is that if convicted of Fentanyl trafficking, sentencing jeopardy is high.  Notwithstanding that the Court has yet to firmly establish the starting point for non-wholesale trafficking of Fentanyl, a potential starting point is predicated to be in the 5-7 years range.  This range has been foreshadowed in a number of cases. It is noteworthy that in cases such as R. v. Sauve, [2017] A.J. 1795 even relatively minor and unsophisticated Fentanyl trafficking could result in a jail sentence in the 3.5 – 5 year range.  

The message of this article is to educate about the sentencing ranges for Fentanyl trafficking while at the same time highlighting the risk-to-life dangers associated with this drug. 

David Chow is an experienced Alberta criminal lawyer. He is one of a handful of Calgary criminal lawyers who routinely defends high profile drug cases.  If you are looking to hire a Calgary drug lawyer to defend any drug case, including Fentanyl trafficking, call 403.452.8018.  

David G. Chow

Calgary drug lawyers: 403.452.8018