Up, up and away: the Alberta Court of Appeal sets 9 year starting point for wholesale fentanyl trafficking: R v Felix, 2019 ABCA 458 (CanLII)

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In yet another disturbing sentencing decision (R v Felix, 2019 ABCA 458 (CanLII), the Alberta Court of Appeal overturns (in a unanimous 5-member decision authored by Antonio J.A.) a 7-year sentence for wholesale fentanyl trafficking, and imposes instead a 10-year sentence. Luckily for the respondent, the Crown only sought a 10-year sentence – otherwise the Court likely would have imposed a 13-year sentence (see para. 79).

My problems with the decision are not dissimilar from those expressed in my recent post. I should also note that it is both sad and ironic that a 1-year mandatory minimum sentence for possession for the purpose of trafficking was found to be unconstitutional by the Supreme Court – yet a “3-year starting point” for, say, cocaine trafficking in a commercial context “beyond a minimal scale” (how the heck is that defined anyway?) enforced by our Alberta Court of Appeal and therefore binding on all Alberta sentencing courts, and which – in practice – leads to a 2-year minimum (on average, I’d say) sentence for trafficking – somehow that is acceptable?

I’ll add that the following paragraphs from this decision struck me as particularly problematic:

[40]           Fentanyl trafficking has created a crisis in Alberta, as in the rest of the country. 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. […]

[66]           As for all drug trafficking, particularly where there is any degree of sophistication, primacy must be given to denunciation and deterrence. Participation in a trafficking network is a calculated decision, premised on the ability to reap gains that outweigh any costs. This is precisely the type of crime for which deterrence may be most effective.

This despite debate whether harsh sentencing actually operates as a deterrent. It would be nice if our Court of Appeal would rely on evidence to support its belief in the deterrent effect of its decisions, rather than just assume it. See, for example, Clayton Ruby et al. in Sentencing: 9th edition  (available with QuickLaw subscription here):

§1.27 Notwithstanding the lack of evidence to support the proposition that individual conduct is affected by sentencing, general deterrence remains at the heart of adult sentencing practice.4 It is a reversible error to suggest that there must be evidence that a particular sentence would accomplish deterrence. Nor, in light of the language of section 718(b) of the Criminal Code, is it open to a sentencing judge to conclude that general deterrence is irrelevant or ineffective.5 In fact, for some offences, such as producing counterfeit money and trafficking or importing narcotics, courts have held that general deterrence ought to be the primary goal of sentencing.6 General deterrence as a principle of sentencing always acts to increase the penalty; it never mitigates sentence.7 The concept, despite criticism, survives.

It is sometimes argued that deterrence — and sentencing offenders to jail — does not do any good because it does not help the individual offender and further that, despite jailing offenders, we still have crime in our society . … [B]y including general deterrence as one of the sentencing objectives in the Code, Parliament has ended any dispute about its validity.8 [Quoting R. v. Arcand, 2010 ABCA 363 (CanLII), at para. 277.]

True, crime survives, but there is no evidence that imprisonment beyond immediate and expensive incapacitation has any beneficial effect commensurate with its cost.9

§1.28 What evidence there is suggests that it is the certainty of conviction rather than the severity of sentence that constitutes the deterrent factor in criminal law. This assertion was questioned by Schultz J.A. of the Manitoba Court of Appeal in Iwaniw; Overton.10 Schultz J.A. made the following comment in an attempt to justify the standard proposition that harsher sentences effectively reduce the crime rate. However, it raises an interesting problem about the validity of deterrence generally:

… those contemplating potential crimes are not concerned with the question of conviction to anything like the same extent [as the severity of punishment]; for what criminal ever plans a crime thinking he will be caught?11

§1.29 Our courts continue to depend on theories of general deterrence in practice. The Alberta Court of Appeal is not prepared to tolerate what they refer to as “the sentencing judge’s subjective doubts about [the] general efficacy” of general deterrence.12 […]

§1.32 Similarly, in Gladue, Cory and Iacobucci JJ. held that although imprisonment is intended to serve the goals of separation, deterrence, denunciation and rehabilitation, “there is widespread consensus that imprisonment has not been successful in achieving some of these goals”.18 In view of its extremely negative collateral effects — “educating less experienced, less hardened offenders to be more difficult and professional criminals”19 — imprisonment “should be used with great restraint where the justification is general deterrence”.20 General deterrence, as a justification for imprisonment where a conditional sentence is available, should be “reserved for those offences that are likely to be affected by general deterrent effect”,21 for example, large‑scale well-planned fraud by persons in positions of trust.

Although Felix quotes and purports to follow R. v. Lacasse, 2015 SCC 64 (CanLII), [2015] 3 SCR 1089, a quick reading of Lacasse suggests that Felix does not follow binding Supreme Court of Canada authority on sentencing. Perhaps an Alberta Court of Appeal sentencing decision will finally make it all the way to the Supreme Court of Canada (more recently than R. v. McDonnell, 1997 CanLII 389 (SCC), which interestingly was a 5-4 decision overturning an Alberta Court of Appeal decision which CJ Fraser wrote, and for which Berger J.A. wrote the dissenting opinion April 12/20 correction: unanimous ABCA decision of which Fraser, Cairns and Bielby were on the panel: indexed as R. v. McDonnell, [1995] A.J. No. 505 (QuickLaw))? I’ll remain optimistic.

Published by Efrayim Moldofsky

I am a junior criminal defence lawyer in Calgary, Alberta. Read my observations here.

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