Counsel highlight importance of ‘social context evidence’ in drug sentencing decision

By Amanda Jerome

Law360 Canada (August 22, 2022, 9:45 AM EDT) -- The Court of Appeal for British Columbia has increased a 12-month probation order to three years in a drug trafficking case, noting that the sentencing judge “committed several errors in principle and those errors had a material impact on the sentence.”

Although the probation order was increased in R. v. Ellis, 2022 BCCA 278, the court noted that due to the respondent’s “significantly diminished moral blameworthiness as someone who suffers from a long-standing and severe substance use disorder, and who trafficked to ensure her own supply,” a “substantial departure” from the sentencing range established in R. v. Smith, 2017 BCCA 112 was “justified.”

Caitlin Shane, a staff lawyer at Pivot Legal Society in Vancouver and counsel for the respondent with Sarah Runyon and Garth Barriere, noted that the “use of incarceration for people convicted of street-based drug trafficking is ineffective to address the social context that gives rise to offences in the first place (i.e. addiction, housing precarity, trauma, etc.)”

Caitlin Shane, Pivot Legal Society

Caitlin Shane, Pivot Legal Society

“Incarceration cannot be treated as the only judicial tool conducive to denunciation and deterrence. In our client’s case (and in the case of many street-based drug traffickers), those aims can be addressed through non-custodial sentences,” she explained.

Shane, who is a drug policy advocate, also noted that “courts are increasingly recognizing the inadequacies of incarceration for marginalized offenders and in particular, for those who engage in street-based drug trafficking.”

“There have been significant practical and conceptual changes since the Smith decision, in terms of addiction, the prevalence of fentanyl in the illicit drug market, and the proper means to address those issues. Non-custodial sentences do not equate to disregard for the seriousness of fentanyl and the overdose crisis — they aim to address precisely those issues, acknowledging that incarceration has succeeded only in exacerbating them thus far,” she said.

Runyon, a partner at Marion & Runyon Criminal Lawyers in Campbell River, B.C., explained that, “first and foremost,” this decision shows lawyers “the importance of tendering social context evidence at courts of first instance to guard against rulings or judgments rooted in stereotype or systemic bias.”

As for takeaways from the decision, Runyon noted that “criminal sentencing proceedings ought to be receptive to the admission of social context evidence and that evidence should be used in calibrating the moral culpability of the offender.”

 She also noted that Smith “no longer functions as a ‘starting point case’ in theory or practice.”

“Community based dispositions may be entirely appropriate for fentanyl-related offences. The Ellis decision provides defence lawyers with a powerful tool to argue that non-custodial sentences may be more effective in accomplishing the goals of sentencing as set out in s. 718 of the Criminal Code,” she added.

Ryan Carrier, general counsel for the Public Prosecution Service of Canada and Crown counsel for the appellant in Vancouver, noted that the Ellis decision has “essentially confirmed that fentanyl trafficking is a serious offence that normally warrants significant jail time — regardless of who traffics it, or why they traffic it.”

“The gravity of this offence means that denunciation and deterrence must generally be the primary consideration on sentence given the enhanced risks and ensuing harms associated with trafficking in fentanyl. Here the BCCA essentially reiterated what the majority said in R. v. Parranto, 2021 SCC 46,” he explained.

“That said,” he added, “who trafficked in fentanyl, and why they ended up trafficking in fentanyl, obviously must factor into the sentencing analysis.”

“The BCCA makes the point that a sentencing judge can never lose sight of the narrow focus of sentencing — which is to conduct an individualized assessment of the relevant factors on sentence — this includes the specific ‘who’ and the ‘why’ — but a sentencing hearing is not the place to conduct a generalized assessment of the effectiveness of criminal justice measures or policy, nor is it appropriate to sentence someone based on generalized characteristics of a group they may be a part of,” he explained.

Carrier also noted that “social context evidence can assist the sentencing judge in assessing moral blameworthiness, and provides valuable insight into how best to blend sentencing principles in an individual case.”

“Social context evidence cannot however reduce the gravity of an offence and obviate the principles and objectives of denunciation and deterrence. The BCCA adopted the reasoning in R. v. Morris, 2021 ONCA 680, and there is general consensus across the country on this issue,” he said, also noting that “where there is evidence of proximity between the offender and an Indigenous community, the risks and impacts to that community should be taken into account on sentence.”

“More effort needs to be put into making sure that communities impacted by crimes have a voice in the criminal justice process. Ideally, the goal is always to have the offender reintegrate back into their community, and become productive members of society, so it makes sense that courts hear about any challenges faced by communities in achieving that goal,” he explained.

On takeaways from the decision, Carrier highlighted that “sentencing range represents judicial consensus on the gravity of the offence, and is a reflection of strictly offence-based considerations.”

“It is important not to confuse the objective gravity of the offence committed with the individual characteristics of the person who committed it. A proportionate sentence requires that these remain distinct considerations, and that both are factored into the analysis. A serious crime does not become less serious based on who committed it,” he said, noting that “social context can be important when sentencing an offender.”

“Relevant social context evidence is often pretty uncontroversial — anti-Black racism exists, many Downtown East Side residents face numerous barriers and challenges, etc. Lawyers cannot however lose sight of the fact that everyone is different, so you will still need to show a nexus between the offence committed, the offender, and the social context said to be relevant,” he added, stressing again that “more work needs to be put into making sure that communities impacted by crimes like drug trafficking have the opportunity to be heard.”

“Too often we hear that this is a ‘victimless’ crime. Nothing could be further from the truth. Justice Moldaver made it crystal clear in the recent SCC decision Parranto that the distribution of fentanyl has had a devastating impact on people and communities across Canada. But you don’t need a Supreme Court of Canada justice to tell you that, just take a walk through the Downtown East Side of Vancouver,” he concluded.

In Ellis the Court of Appeal noted that it had “established a generally applicable sentencing range of 18-36 months’ imprisonment for first-time offenders who sell fentanyl at the street-level” in Smith.

“A sentence of greater than 36 months’ imprisonment may be appropriate for people with prior convictions for trafficking in fentanyl,” the court added, noting that the “majority” in Smith found that “other dangerous drugs do not kill as frequently, accidentally, or as unpredictably as fentanyl.”

For the case at bar, the respondent, Tanya Ellis, pleaded guilty in provincial court to “trafficking and possession for the purpose of trafficking” under the Controlled Drugs and Substances Act.

The offences, the court noted, “involved fentanyl and cocaine mixed with fentanyl.”

Ellis, relying on expert evidence from Dr. Ryan McNeil, “asked the sentencing judge to ‘revisit’ the Smith range and to rule that it does not apply to people who traffic at the street-level because they suffer from a substance use disorder and need money to support their use of substances.”

The sentencing judge, Justice Barbara Flewelling, accepted this submission and determined that the Smith sentencing range “does not apply to street-level offenders who suffer from a substance use disorder and who traffic in fentanyl to ensure their own drug supply.”

Justice Flewelling therefore sentenced Ellis to a “ ‘restorative’ suspended sentence with 12 months’ probation and minimal conditions.”

The Crown appealed, arguing that the sentence “reflects three errors in principle.”

The Crown submitted that the judge: “(a) failed to conduct an individualized assessment of Ms. Ellis’s moral culpability and, instead, sentenced her based on general characteristics attributed to people with a substance use disorder who sell for subsistence reasons; (b) erred in relying on inadmissible expert opinion evidence in determining a fit sentence; and (c) gave inadequate effect to the principles of deterrence and denunciation by failing to consider or give sufficient weight to the gravity of Ms. Ellis’s conduct.”

The Crown also argued that a “sentence of 12 months’ probation with minimal conditions is demonstrably unfit” as Ellis was “not a first-time offender” and has “committed grave offences that carried a palpable risk of harm to others, including the realistic potential for accidental and fatal overdose.”

Justice Joyce DeWitt-Van Oosten, writing for the Court of Appeal, noted that the appeal “must be allowed” as Justice Flewelling “committed several errors in principle and those errors had a material impact on the sentence.”

The Court of Appeal sentenced Ellis “afresh, with deference to the judge’s factual findings.”

Justice DeWitt-Van Oosten noted that the sentencing analysis “must be guided by the Smith range, which gives meaningful effect to the gravity of the offences committed by Ms. Ellis and the palpable risk of serious harm those offences carry for people who purchase fentanyl from street-level traffickers, for their families and for the communities in which they live.”

“However,” she added, “what constitutes a fit sentence for Ms. Ellis must also be informed by the judge’s social context findings and Ms. Ellis’s personal circumstances.”

The court noted that Justice Flewelling’s findings “shed important light on the moral blameworthiness of Ms. Ellis as an individual with a long-standing substance use disorder, whose daily functioning and behavioural choices are deeply affected by an all-consuming illness.”

To “resolve” the appeal, Justice DeWitt-Van Oosten posed “four overarching questions: a) Was Dr. McNeil’s evidence properly before the judge? b) Did the judge use Dr. McNeil’s evidence for an improper purpose? c) Did the judge err in her approach to the Smith range? d) If the judge committed material errors, what is a fit sentence for Ms. Ellis?”

On the first question, the Crown argued that Justice Flewelling “relied on Dr. McNeil’s improper testimony to erroneously conclude that she could revisit or reconsider the Smith range based on a material change in circumstances and render the principles of deterrence and denunciation to be of little or no relevance to street-level traffickers with a substance use disorder.”

The court noted that “[S]ocial context can be established by way of direct evidence (testimony, expert opinion evidence or other professional reports), admissions (including agreed statements of fact), or judicial notice.”

The “proper use of social context evidence at sentencing was comprehensively considered by the Ontario Court of Appeal in R. v. Morris, 2021 ONCA 680,” the court explained.

In Justice DeWitt-Van Oosten’s view, “the use of social context evidence for the purposes identified in Morris is consistent with long-standing sentencing practices and principles, and logically fits within the existing statutory and common law sentencing framework.”

“Applying the Morris framework to this case,” Justice DeWitt-Van Oosten agreed with Ellis and the Independent Criminal Defence Advocacy Society (CDAS), as intervener, that “Dr. McNeil’s evidence was properly before the judge.”

Turning to the second question, Justice DeWitt-Van Oosten agreed with the sentencing judge that it was “open to her to use Dr. McNeil’s evidence to inform her analysis of Ms. Ellis’s moral blameworthiness and to assist in the weighing of the principles of sentencing in the specific context of this case.”

“However,” she added, “I agree with the Crown that in actuality, the judge did much more than this. She went beyond the acceptable two-fold use of Dr. McNeil’s evidence to inform her sentencing determination and, by so doing, the judge erred in principle.”

“Relying on Dr. McNeil’s evidence, the judge concluded that this Court’s emphasis on deterrence and denunciation in Smith is no longer appropriate, as a matter of law, for traffickers who struggle with a substance use disorder and ‘sell small quantities of drugs at the street level for the primary purpose of ensuring their own drug supply … and to avoid the severe effects of withdrawal,’ ” the court noted, which “[C]onsequently” removed “this category of offender, including Ms. Ellis, from application of the 18-36 months sentencing range in Smith.”

On the third question, Justice DeWitt-Van Oosten concluded that Justice Flewelling “committed two errors in principle specific to her consideration of Smith.”

“First,” she noted that “even though the judge instructed herself that sentencing ranges function as guidelines only (at paras. 115–118), she appears to have been of the view that Smith tightly circumscribes a court’s discretion and that before a judge can properly impose a sentence of less than 18 months’ imprisonment for street-level fentanyl trafficking, there must be ‘exceptional circumstances’ that demonstrate rehabilitative progress since the commission of the offence.”

However, the court noted that “[E]xceptional circumstances are not required to justify a departure from the Smith range, including a sentence that is substantially below 18 months’ imprisonment or even non-carceral.”

“A second and more significant error is that the judge appears to have misunderstood what a sentencing range represents,” she added, noting that “in deciding that she needed to revisit Smith to appropriately sentence Ms. Ellis, the judge erroneously treated Smith as representing this Court’s perspective on both the gravity of the offence and the moral blameworthiness of street-level traffickers in fentanyl, generally.”

“In other words, she appears to have viewed the emphasis on deterrence and denunciation in Smith as assuming high moral blameworthiness for all street-level traffickers in fentanyl, regardless of their personal background and circumstances,” Justice DeWitt-Van Oosten wrote, noting that this “misunderstanding of Smith led the judge to sentence” the respondent, “in large part, based on a conclusion that Ms. Ellis falls within a certain class of offenders to whom the principles of deterrence and denunciation and the use of carceral sentences have little or no societal value or effect, notwithstanding the gravity of their crimes and the harms associated with their conduct.”

The court stressed that it is “incontrovertible that trafficking in hard drugs is a grave offence” and the “fact that someone who engages in that crime ‘is an addict does not lessen the harm done to society by [their] trafficking activity.”

On the final question, Justice DeWitt-Van Oosten found that the “errors in principle” entitled the court to “conduct its own sentencing analysis to determine a fit disposition for Ms. Ellis.”

“In light of the judge’s findings, including (but not limited to) Ms. Ellis’s significantly diminished moral blameworthiness as someone who suffers from a long-standing and severe substance use disorder, and who trafficked to ensure her own supply, I am satisfied a substantial departure from the Smith range is justified and that a suspended sentence with probation constitutes a proportionate and therefore fit sentence for Ms. Ellis,” she wrote, in a decision released Aug. 16.

Justice DeWitt-Van Oosten, with Justices Harvey Groberman and Leonard Marchand in agreement, allowed the appeal and varied the sentences, “concurrent on both counts, to a suspended sentence with three years’ probation.”

There were five interveners on appeal: the Vancouver Area Network of Drug Users (VANDU), CDAS, West Coast Legal Education and Action Fund, Canadian Drug Policy Coalition (CDPC) and the We Wai Kai Nation.

The court noted that Ellis “trafficked on or near a We Wai Kai reserve” and accepted, as a community impact statement, the Nation’s position that “any development in the law of sentencing for opioid trafficking offences should be informed by the perspective of Indigenous communities, which bear a disproportionate share of the harm caused by illicit drugs.”

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