A Campbell River judge has rejected the established sentencing range for fentanyl traffickers by refusing to send an addict to jail.
In her sentencing decision last week, provincial court Judge Barbara Flewelling accepted expert evidence that jail does not deter or cure people addicted to drugs who also sell drugs to feed their addiction. She suspended sentence and placed Tanya Lee Ellis on 12 months of probation, instead of the three-year prison sentence sought by the Crown.
“Jail sentences and the involvement of the criminal justice system has not been effective in stemming the flood of fentanyl in the drug supply and the increasing number of overdose deaths involving this drug,” Flewelling said.
Ellis, a 43-year-old mother of two, pleaded guilty to selling spitballs of fentanyl to an undercover police officer in late 2019.
Ellis testified that she grew up in an abusive household and experimented with drugs in Grade 3. She was introduced to crack cocaine by an older man in Grade 8. In her early 20s, she met Art Nelson, the father of her two daughters. An addict who spent significant time in jail, he introduced her to heroin. On Aug. 30, 2019, he died of a drug overdose, two days after they both attended a five-week residential treatment facility.
Ellis, who has been to residential treatment seven times, still uses drugs. She told the judge what it is like to use and inject drugs: “… taking hours to find a spot where my body will receive the drug… feeling so horrible and just wanting to feel better and you can’t find anywhere on your whole body. Like I am scarred. My veins are collapsed. I have to go in my feet sometimes which is painful… I try and try for hours, sometimes bleeding everywhere… in the hot bath to try and bring my veins out… But still it’s absolutely disgusting,” she testified.
After Nelson’s death, Ellis began selling small amounts of drugs for her own opioid use and to avoid withdrawal.
Flewelling heard testimony from Dr. Ryan McNeil, the director of harm reduction research for the addiction medicine program at the Yale School of Medicine. Although he didn’t know Ellis, he said her story was common. Forty to 50 per cent of people who use drugs, also sold drugs, he testified. Typically, their lives are marked by trauma, homelessness and extreme poverty.
Jail does not work for the opioid-addicted drug seller, said McNeil. It does not prevent people using drugs from selling drugs. In addition, the post-release period is one of the greatest risk of overdose because people have lost their tolerance. Opioid withdrawal should also be taken more seriously, he said.
“I’ve known people who literally sold the boots off the feet because they were going through withdrawal and need to purchase drugs to manage those experiences. This is feeling the sickest you’ve ever felt,” McNeil testified.
Court-ordered counselling is not effective because it doesn’t address the underlying factors that push people into addiction and selling drugs. Imposing conditions of abstinence are unrealistic and set people up for failure, he said.
In 2017, the B.C. Court of Appeal set the sentencing range for first-time offenders convicted of trafficking fentanyl to 18 to 36 months. However, in the past four years, a fundamental shift had taken place in society’s understand of drug addiction and the relationship between street-level trafficking and the need to avoid the severe effects of withdrawal, said Flewelling.
She found Ellis’s moral blameworthiness was at the low end because she was selling drugs to support her own need for drugs, rather than for greed or money.
During her year of probation, Ellis must complete 30 hours of community service. If she consents, she can be referred to evidence-based medical treatment and counselling.
“It will help her in her desire to associate with healthy people, learn other skills and manage her illness but “most importantly, assist her in realizing that she is a valuable and contributing member of this community,” Flewelling said.
