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| John L. Hill |
Many jurisdictions have enacted stricter laws and penalties due to the severe impact of fentanyl on public health. For example, in California, a new law effective in 2024 increased penalties for distributing fentanyl, with additional years added to sentences based on the amount involved (three years for more than one kilogram).
In Texas, recent legislation has led to significantly harsher penalties, including lengthy prison sentences for those convicted of dealing fentanyl. House Bill 6 saw a Dallas man, Richard Leal, sentenced to a 30-year term for delivering between four and 200 grams of the controlled substance. Another Texan, Denzel Johnson, received a 30-year term for possession with intent to deliver fentanyl.
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In Canada, penalties for dealing in fentanyl are severe and can vary depending on the circumstances and the amount involved. For serious drug offences, including trafficking fentanyl, there are mandatory minimum penalties. In British Columbia, sentencing for fentanyl has ranged from 18 to 36 months. In Alberta and Ontario, some sentences have gone up to nine years where wholesale trafficking has been an aggravating factor.
An Ontario man, Michael Woods, was convicted of trafficking in fentanyl, a Schedule 1 substance under the Controlled Drugs and Substances Act. On Nov. 16, 2023, Justice Michael Darroch of the Ontario Court of Justice imposed a two-year, less-than-day conditional sentence with house arrest for the term imposed and three years of probation.
The Crown appealed, saying that the sentence was demonstrably unfit because it was disproportionate to the gravity of the offence and the offender’s moral blameworthiness. The sentencing principles of denunciation and deterrence were seemingly ignored.
The Ontario Court of Appeal heard the matter on Aug. 30, 2024, and soon after that, released its seven-paragraph judgment dismissing the sentence appeal (R. v. Woods, 2024 ONCA 664).
The Court of Appeal accepted that Justice Darroch had not overlooked that fentanyl is a hazardous drug, and trafficking even small quantities could result in a penitentiary term. However, in this case, Woods was not a commercial dealer. A friend with whom he had been using fentanyl was also a substance abuser. Woods had sold a small quantity of the lethal dose of the drug to his deceased friend. This sale likely caused the Crown to want more severe punishment.
Yet the appeal court considered mitigating factors. Woods had a tough life and became addicted to opioids as a result of an injury. He expressed remorse for an early guilty plea and had a positive employment history with community support. Most importantly, the appeal court noted, he had made “extraordinary” efforts at rehabilitation and had not used substances since his arrest on Feb. 24, 2022. Justice Darroch considered him likely to maintain sobriety. On bail, he had been effectively on house arrest for 19 months and had undergone an 86-day residential treatment program.
The appeal court admitted that denunciation and deterrence sentencing principles would ordinarily result in a carceral term. However, this case involved unusual circumstances, and the sentencing judge could impose a conditional sentence. The sentence was not demonstrably unfit.
There is no doubt that many communities in Ontario and elsewhere have been rocked by an explosion in the number of encampments for unhoused individuals and increased awareness that these sites have experienced an increased call for emergency services to deal with drug overdoses. The knee-jerk reaction is that the fentanyl crisis can be solved by tossing all users and dealers in jail for extended periods, just as places as diverse as California and Texas have done.
The Ontario Court of Appeal decision in Woods is valuable in its seeing that a one-size-fits-all approach is not the way to deal with the problem, where lengthy incarceration drives an individual already in despair to even lower depths. This judgment is a call that denounces the drug problem but rewards those individuals who take the proper steps to escape addiction.
John L. Hill practised and taught prison law until his retirement. He holds a J.D. from Queen’s and an LL.M. in constitutional law from Osgoode Hall. He is also the author of Pine Box Parole: Terry Fitzsimmons and the Quest to End Solitary Confinement (Durvile & UpRoute Books) and The Rest of the (True Crime) Story (AOS Publishing). Contact him at johnlornehill@hotmail.com.
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