adam zivo: poilievre is right, give fentanyl traffickers life sentences
we shouldn't have to invoke the charter to set fentanyl-trafficking minimums
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rcmp display guns, drugs and money seized from a fentanyl "superlab" in falkland, b.c., in october 2024.
jason payne/png
conservative leader pierre poilievre has said that, were he to form government, he would impose harsh imprisonment for fentanyl trafficking, including mandatory life sentences for major dealers. this is a laudable idea, even if his proposed legal mechanism for enacting these reforms is questionable.
opioids have killed tens of thousands of canadians. as of 2024, 79 per cent of all accidental apparent opioid toxicity deaths involved fentanyl, up from 39 per cent since 2016 when tracking of opioid-related deaths began. according to health canada, fentanyl was involved in roughly 80 per cent of overdose deaths last year. the opioid is roughly 50 times more potent than heroin, meaning that just a 2-mg dose, the physical equivalent of a few grains of sand, can be lethal to inexperienced users.
earlier this month, poilievre proposed that traffickers caught with 20-mg or more of fentanyl be given 15 years in prison, while those caught with 40-mg or more be given mandatory life sentences of 25 years without the chance of parole.
he compared selling illicit fentanyl to mass murder, and suggested that his proposed sentencing reforms would invoke section 7 of the charter of rights and freedoms, which protects the right to life, liberty and security of the person. he told reporters two weeks ago: “here’s how i interpret the charter: that law-abiding people have the right to expect their children will not die in back alleys.”
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excluding his charter argument, this approach makes sense. although canada’s fentanyl crisis has, to some extent, been a symptom of global forces beyond our control, our unsettlingly lax criminal justice system in general has greatly exacerbated the problem. under the status quo, fentanyl traffickers are regularly given light sentences that are scandalously disproportionate to their crimes, and are let out on bail far too quickly and easily.
canadian gangs pivoted to manufacturing fentanyl after china, facing international pressure, controlled the production and export of the opioid in 2019. they were so successful in this respect that, by 2021, they oversupplied the domestic market and crashed the drug’s street price by roughly 30 per cent.
yet, despite the rapidly deteriorating situation, the liberals failed to adequately empower law enforcement to tackle fentanyl trafficking – something which could have been done, for example, by shifting the rcmp’s resources away from provincial matters, such as highway patrol, to nationally-focused anti-drug policing. instead, the feds narrowly focused on radical harm reduction (i.e. “safer supply” and supervised consumption sites) to the near-total exclusion of other solutions. their failure to holistically address the overdose crisis, and address enforcement gaps, was mirrored by some provincial governments, most notably the b.c. ndp.
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in some cases, the federal government made fentanyl trafficking easier. this was epitomized by its support of b.c.’s disastrous drug decriminalization experiment, which permitted individuals to legally carry 2.5 grams (enough fentanyl to kill over 1,000 people) as well the passage of bill c-75 in 2022, which eliminated certain minimum punishments for drug-related offenses and allowed greater use of conditional sentences for simple possession.
the federal government does not micromanage sentencing lengths for drug crimes, and gives judges wide latitude to determine sentences based on a complex milieu of factors, including federal and provincial jurisprudence.
over the past decade,some judges throughout canada have embraced a soft-hearted approach to sentencing. not only are criminals given scandalously light punishments if they come from marginalized backgrounds, drug trafficking can be treated so unseriously that one wonders if any real accountability exists for traffickers at all.
in b.c., the sentencing range for first time street-level trafficking is now typically 18-36 months, which, according to pivot legal society (a drug-friendly human rights organization), is among the harshest sentencing ranges for low-level fentanyl trafficking in canada.
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meanwhile, a 2021 supreme court of canada ruling r v. parranto mentions a starting range of eight to fifteen years for those who oversee wholesale fentanyl trafficking operations, even though such individuals help move enough of the opioid to kill, at the very least, hundreds of thousands of canadians (1kg of fentanyl, a moderate wholesale volume, contains 500,000 lethal doses). the case does, however, point out that starting ranges are non-binding, meaning these sentences can be decreased or increased based on a judges’ discretion concerning an individual’s circumstances.
some prosecutors, particularly in ontario, have tried to impose harsher punishments on fentanyl traffickers by charging them with manslaughter, which can add a few extra years of jail time. however, this solution is rarely used, and limited to low-level traffickers, because establishing a causal link between a particular transaction and death is exceedingly difficult.
there can be no justice for canada’s overdose victims when fentanyl traffickers face such disproportionately soft punishments for selling lethal poison. while the federal government’s powers over criminal sentencing are limited, it has the capacity to establish harsher mandatory minimums, but has, for whatever reason, declined to exercise this authority here.
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is it any wonder, then, that fentanyl superlabs are springing up throughout parts of this country like kudzu? human behaviour is predictable: people react to disincentives, or the lack thereof.
there is clearly an ethical case for new mandatory minimums: addicts are human beings, and their lives are jeopardized and grossly devalued when the state fails to adequately punish traffickers. by invoking the language of “mass murder,” poilievre is tapping into the moral spirit of the preexisting movement to charge traffickers with manslaughter, while bypassing the associated legal challenges by using a different avenue of law.
that being said, his invocation of section 7 is unwise. charter rights should be interpreted cautiously and narrowly, otherwise they risk being exploited for judicial activism — as demonstrated by a recent ontario ruling which attempted to use section 7 to force municipalities to permit open drug use in homeless shelters. by pushing for an expansive interpretation of the charter, poilievre may be missing the forest for the trees. surely, there is a better alternative.
national post
adam zivo is executive director of the centre for responsible drug policy.
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