In the recent decision, R. v. Parranto, the Supreme Court held that appellate courts may set starting points for sentencing. In a majority decision dismissing the appeals of two drug trafficking sentences from Alberta, the Supreme Court found that the sentences given at trial were “demonstrably unfit,” and that the Alberta Court of Appeal did not err in setting a starting point for wholesale fentanyl trafficking. In making its decision, the Supreme Court reviewed the guiding principles of sentencing and the severe impact of fentanyl which various courts have described as a “national crisis.”

Alberta Court of Appeal Sets a 9-Year Starting Point for Wholesale Fentanyl Trafficking

The two appellants pleaded guilty to various offences arising out of unrelated drug trafficking operations, including fentanyl trafficking contrary to the Controlled Drugs and Substances Act. Both appellants were found to be operating at the “wholesale” commercial level. At sentencing, one of the appellants received a global 7-year sentence and one of a global 11-year sentence.

The Crown appealed these sentences to Alberta’s Court of Appeal. The Court heard the appeals jointly “for the express purpose of setting a starting point for wholesale fentanyl trafficking.” In considering the severe impact of fentanyl, the Court of Appeal set a 9-year starting point for wholesale fentanyl trafficking. The Court increased the appellants’ sentences accordingly, to 10-years and 14-years respectively.

The appellants and several interveners challenged the Court of Appeal’s ability to set a starting-point approach to sentencing, arguing that it has undesirable results, including higher rates of incarceration for Indigenous and other offenders

Fentanyl has been Described as a National Crisis Warranting Stronger Penalties

The Supreme Court of Canada dismissed the appeals and upheld the right of appellate courts to set a starting point for sentencing to help lower courts decide appropriate sentences.

It’s interesting to note that joint reasons for the judgment were written by Justices Brown and Martin with Justices Wagner and Kasierer concurring. In addition, concurring reasons were written by Justice Moldaver, with Justice Côté concurring and further concurring reasons were written by Justice Rowe. The dissenting reasons were written by Justice Karakatsani, with Justice Abella concurring.

In considering the case, Justice Moldaver (with Justice Côté concurring) stated that the sentences given by the lower court fell markedly below the range of sentences warranted in cases involving the directing minds of largescale fentanyl trafficking operations. In considering the severity of fentanyl and its national impact, he said the following:

 Appellate courts can and should depart from prior sentencing precedents that no longer reflect society’s understanding of the gravity of a particular offence and the blameworthiness of particular offenders. The gravity of largescale trafficking in fentanyl for personal gain requires severe penalties, ranging from mid-level double digit penitentiary terms up to and including life imprisonment. Trafficking in hard drugs leads to addiction, debilitating adverse health effects, death by overdose and an increase in all manner of crime by those seeking to finance their addiction and organized crime syndicates. Much of this criminal activity is violent. A devastating consequence of the hard drug trade is its impact on families and the intergenerational trauma it causes. It leads to significant costs to society in terms of health care and law enforcement expenses, as well as lost productivity.

Fentanyl has altered the landscape of the substance abuse crisis in Canada. It is a highly addictive substance which puts its users at risk of serious harm, far greater than other opioids. Various courts have described fentanyl as a national crisis and the epidemic shows no signs of abating. The time has come for the perception of the gravity of largescale trafficking in fentanyl to accord with the gravity of the crisis it has caused.

The Supreme Court of Canada Affirms the Alberta Court of Appeals Starting Point Approach

In light of this, Justice Moldaver found that heavy penitentiary sentences are appropriate where offenders have trafficked in large quantities of fentanyl and assumed leadership roles in the trafficking operation. He noted that substantial sentences should not be reserved for exceptional circumstances. Sentencing judges should therefore feel justified, where circumstances warrant, in applying mid-level double digit sentences and, in particularly aggravating circumstances, potential sentences of life imprisonment.

Sentencing Starting-Points are Non-Binding

In considering the appellants’ arguments on the negative impacts of sentencing starting points, Justices Brown and Martin noted that starting points are “properly treated as non-binding guidance by both sentencing and appellate courts.” Appellate courts must adhere to the deferential standard of review in sentencing appeals and the Supreme Court “must provide clear direction on how appellate courts should account for starting points when reviewing sentences for errors in principle and demonstrable unfitness.”

Justice Brown and Martin, therefore, described their findings not as an endorsement of starting points as they have sometimes been enforced by appellate courts but rather as a revised understanding that brings them into conformity with the standard appellate review and principles and objectives of sentencing. As the Justices stated:

Accordingly, there is no need to disavow the starting-point approach to sentencing. Sentencing ranges and starting points are simply different tools that assist sentencing judges in reaching a proportionate sentence. It is not for this Court to dictate which of these tools can or cannot be used by appellate courts across the country. Provincial appellate courts should be afforded the respect and latitude to provide their own forms of guidance to sentencing judges, as long as that guidance comports with the principles and objectives of sentencing under the Criminal Code, R.S.C. 1985, c. C-46, and with the proper appellate standard of review.

It is important to note that this was the first Supreme Court decision to consider sentencing in wholesale fentanyl trafficking. We will continue to monitor the court’s treatment of sentences in regards to such fentanyl offences.

Contact Hicks Adams LLP for a Skilled Defence Against Drug Trafficking Charges

At Hicks Adams LLP, our skilled team of criminal defence lawyers have the breadth and depth of appellate level experience to help you craft an optimal appeal of a sentence or other lower court decision. We can help you understand your appellate rights and the principles and factors that guide a court’s sentencing decision to strive and achieve the best result possible. Contact Hicks Adams LLP in downtown Toronto to discuss your legal options and how we may assist your case. Call us at 416-975-1700 or contact us online to schedule a confidential consultation.