SCC to Review Alberta’s 9-year “Starting Point” Sentence for Fentanyl Trafficking
Canada’s opioid crisis has been even deadlier than COVID-19. There were 16,364 apparent opioid-related deaths between January 2016 and March 2020, with the situation worsening during the current pandemic.
The vast majority of deaths involved fentanyl or one of its analogues, referring to a synthetic opioid originally used for anesthesia and long-term pain management. Fentanyl is tens of times more potent than either morphine or heroin, has a rapid onset, and is often mixed with other drugs for recreational use.
The appearance of high amounts of fentanyl in Canada’s illicit drug supply has led some courts to adopt harsher criminal responses. Under the Controlled Drugs and Substances Act, SC 1996, c 19, possession for the purpose of trafficking is defined by selling or sharing any amount of a controlled substance. However, the sentence imposed will be dictated in part by the type and quantity of drug involved as well as any aggravating or mitigating factors. Last month, the Supreme Court of Canada (“SCC”) granted leave to appeal from two sentencing decisions of the Alberta Court of Appeal (“ABCA”) in fentanyl trafficking cases: R v Parranto and R v Felix, SCC 39227. These companion appeals squarely raise the issue of courts setting “starting point” sentences, which remain controversial in Canada.
Starting Point Sentences in Canada
Starting points are judicially created sentencing benchmarks for particular offences. They are normally a mid-point of the sentencing range established by previous cases and are intended to provide a non-binding reference point for future decisions. Sentencing is an individualized process that balances various aims, such as deterrence and rehabilitation, depending on both the offence and the offender. For this reason, sentencing judges normally enjoy considerable deference from appellate courts. In contrast, starting points are a kind of “tariff-based” sentencing that involves applying fixed ranges or categories to ensure parity across cases. This may be in tension with an individualized approach. Starting points have also been critiqued as operating like mandatory minimum sentences in practice, leading to longer terms of incarceration and perpetuating systemic discrimination in the criminal justice system.
Canadian appellate courts are currently split on their acceptance of or ambivalence toward starting points—but none have embraced them more than the ABCA. The SCC has cautioned against the strict application of tariff-based sentencing because it can curtail judicial discretion, overwhelm case-specific factors, and encroach on the legislature’s jurisdiction to establish criminal offences. In R v MacDonell,  1 SCR 948 [MacDonell], the SCC acknowledged the relevance of starting points. But it held that they are not binding on lower courts because “it can never be an error in principle in itself to fail to place a particular offence within a judicially created category” (MacDonell, para 32). Despite this statement, in R v Arcand, 2010 ABCA 363 [Arcand], the Alberta Court of Appeal treated the sentencing judge’s failure to head a starting point as a reversible error, which some have suggested was contrary to MacDonell. In R v Lacasse, 2015 SCC 64 [Lacasse], the SCC further stated that sentencing ranges (like starting points) should not be treated as “averages” or “straitjackets,” but rather as “historical portraits” of past decisions that do not override the sentencing judge’s discretion in each case (Lacasse, para 57).
Two “Wholesale” Trafficking Operations
Police raided the home of Cameron Parranto on two occasions. In March 2016, they found a large quantity of methamphetamine, cocaine, morphine, and fentanyl, as well as cash and a loaded handgun. Later, in October 2016, they found approximately 500,000 doses worth of fentanyl, valued at nearly $100,000. In September 2018, Parranto pled guilty to eight charges related to fentanyl trafficking, illegal firearms, and breaching his bail conditions. He admitted that the drugs were part of a wholesale trafficking business.
Patrick Felix ran a sophisticated drug trafficking operation in Fort McMurray. He sold drugs to an undercover police officer on six separate occasions in 2015, providing nearly 2,400 fentanyl pills and 2.5 kilograms of cocaine for a total price of $173,400. In March 2019, Felix pled guilty to two counts of trafficking in fentanyl and two counts of trafficking in cocaine.
The Alberta Court of Queen’s Bench
In R v Parranto, 2018 ABQB 863 [Parranto, Sentencing Reasons], the offender received 11 years’ imprisonment: five for the March 2016 offences and six for the October 2016 offences, to be served consecutively. The Crown had sought 14 years total and also asked the Court to set a nine-year starting point for “wholesale fentanyl trafficking.” The defence opposed this request and argued that a sentence of seven to ten years was appropriate.
Justice Ouellette rejected the Crown’s request to recognize a nominal starting point, finding that the ABCA’s approach in Arcand was inconsistent with SCC jurisprudence. In coming to the sentence, he acknowledged the dangers of trafficking in fentanyl and the need for strong denunciation and deterrence. But he also described Parranto as a “middleman” who did not personally produce or import drugs (Parranto, sentencing reasons, para 69). Justice Ouellette found that previous fentanyl-related sentences ranged from between five and seven years per count, with the seriousness of Parranto’s conduct requiring a sentence at the upper end of this range. Before reductions, this would have meant 20 years in prison. In reducing the total sentence, Justice Ouellette accepted that Parranto’s criminal record and re-offending were aggravating factors but found that his guilty pleas, Métis identity, and (to some extent) heroin addiction were mitigating factors.
In R v Felix, 2019 ABQB 183 [Felix, Sentencing Reasons], the offender received seven years’ imprisonment: four for each count of cocaine trafficking and seven for each count of fentanyl trafficking, all to be served concurrently. After reviewing a similar body of cases as in Parranto, Justice Burrows held that Felix’s role as a wholesale trafficker of dangerous and deadly drugs was “very significantly aggravating” (Felix, Sentencing Reasons, para 41). However, the mitigating factors were extensive, including his guilty plea, lack of criminal record, active parenting of four children, significant community support, compliance with his bail conditions, genuine remorse, and good prospects for rehabilitation.
The Alberta Court of Appeal
The Crown appealed both sentences and similarly asked the Alberta Court of Appeal to set a starting point for wholesale fentanyl trafficking. A five-judge panel unanimously agreed to do so, creating a starting point of nine years and increasing both sentences.
First, in R v Felix, 2019 ABCA 458 [Felix, Appeal Reasons], the offender received two concurrent ten-year terms. In accepting that a starting point should be set, Justice Antonio cited fentanyl’s potency and role in the deaths of hundreds of Albertans every year. She stated that because of this crisis, “It falls to the courts to protect the public by imposing sentences that will alter the cost-benefit math performed by high-level fentanyl traffickers” (Felix, Appeal reasons, para 40). She looked to starting points for other drug trafficking offences, such as cocaine and heroin, to determine that nine years was appropriate. In her view, this represented “a principled extension of existing starting points for drug trafficking” (Felix, Appeal Reasons, para 71).
The Court then went on to find that Felix’s original sentence Felix was demonstrably unfit. Justice Antonio noted that a 13-year concurrent sentence on each fentanyl count would have been appropriate but reduced this to 10 years in accordance with the Crown’s position at trial. She held that the sentencing judge had failed to adequately distinguish between commercial and wholesale trafficking when considering precedents and failed to properly account for Felix’s “executive-level” role in his organization, both of which increased his moral culpability. At the same time, Justice Antonio declined to identify a “bright line” distinction between commercial and wholesale trafficking (Felix, Appeal Reasons, para 61). Instead, she set out a number of factors to consider, such as whether the trafficking involved the large-scale distribution of drugs for resale.
In R v Parranto, 2019 ABCA 457 [Parranto, Appeal Reasons], the offender was sentenced to two consecutive seven-year sentences, for a total of 14 years. Justice Watson characterized this three-year increase in the sentence as “modest” (Parranto, Appeal Reasons, para 69). On the logic from Felix, he held that Justice Ouellette had erred not by failing to impose a non-existent starting point, but by rejecting the ABCA’s approach to the issue. The Court again emphasized the wholesale nature of Parranto’s operation in finding that the original sentence was demonstrably unfit, which made the comparator cases largely inapplicable. Justice Watson also found that Justice Ouellette erred in characterizing Parranto as a middleman and placed improper emphasis on factors that were not actually mitigating, thereby excessively reducing Parranto’s total sentence. In Justice Watson’s view, the original sentence did not adequately serve the objectives of denunciation, deterrence, or protection of the public.
The Future of Starting Points
The ABCA’s decision created the highest starting point sentence for any offence in Alberta. In the appellants’ applications for leave to appeal, they challenge the starting point approach in principle, arguing that it improperly emphasizes parity over individualization in sentencing. They contend that the ABCA erred in effectively creating a separate sentencing offence for wholesale fentanyl trafficking as well as in substituting its own decisions for those of the sentencing judges.
The appellants also point to the recent case of R v Friesen, 2020 SCC 9 [Friesen], where the SCC noted the current appellate split on starting points. That case, which was covered by my colleague here, dealt with sentencing for child sexual offences. The SCC unanimously reversed the Manitoba Court of Appeal’s decision because it had improperly treated a starting point sentence as binding. Intervenors in that case also raised broader concerns about the starting point method endorsed in Alberta. For example, the Criminal Trial Lawyers’ Association suggested that in cases like Parranto, the ABCA “will extend one hand to provide assurance that starting points are not judicially-created mandatory minimum sentences but strike swiftly with the other when a sentencing judge dares to impose a significantly lower sentence” (Intervenor Factum, para 21). Ultimately, the SCC found that Friesen was not the appropriate case to resolve this issue. However, the Court explicitly rejected the ABCA’s approach in Arcand, stating at para 37:
Ranges of sentence and starting points cannot be binding in either theory or practice, and appellate courts cannot interpret or apply the standard of review to enforce them, contrary to R v Arcand. As this Court held in Lacasse, to do so would be to usurp the role of Parliament in creating categories of offences.
This is consistent with Justice Ouellette’s holding in Parranto, suggesting that the appellants have a strong case on the starting point issue. Even if the SCC does not reject the approach altogether, in Felix the ABCA created a starting point after acknowledging that there was insufficient precedent to even fix an appropriate sentencing range. As a result, Justice Antonio looked to other drug offences for guidance. If sentencing ranges and starting points are truly historical portraits, then this reasoning is suspect. On the other hand, it remains to be seen whether the SCC will agree with the lower court’s review of whether the sentences were demonstrably unfit based on the specific circumstances of the offenders.
The Future of Drug Policy
While the desire of courts to respond to the opioid crisis is understandable, this public health issue will not be solved through criminal law. Indeed, many researchers and advocates view punitive responses to drug use as ineffective. Instead, they promote a “harm reduction” model, which seeks to reduce the negative consequences associated with drug use through evidence-informed strategies that respect the autonomy of drug users. Their solutions focus on circumventing the toxic drug market by decriminalizing or legalizing all drugs, and in particular by creating a “safe supply” of regulated opioids. In fact, last month, the City of Vancouver became the first municipality in Canada to vote in favour of decriminalizing simple drug possession, and other cities may soon follow suit. The COVID-19 pandemic has also shown us that bold responses to public health crises are possible. What is required is the political will to protect the lives of drug users, not judicial interventions to expand tough-on-crime sentencing even further.