The BC Court of Appeal has delivered its ruling in R v Ellis, a case defended by Pivot lawyer Caitlin Shane and Sarah Runyon of Marion & Runyon in May 2022. Ellis deals with BC’s harsh sentencing range for drug trafficking offences involving fentanyl—at 18-36 months of incarceration, BC’s range is one of the highest in Canada and is long overdue for an overhaul. It is consistently used to jail people involved in drug dealing at street level, despite the fact that these ‘offenders’ are frequently navigating poverty and substance use themselves, as was the case for our client, Tanya Ellis.
A win for our client, a missed opportunity for law reform
We are pleased that the Court agreed with us and the Court below that there is no utility in incarcerating our client. However, we wish the Court went further in acknowledging the inefficacy of incarceration for all marginalized street-based trafficking offenders. As we stated in our sentencing argument, citing our friend Dr. Ryan McNeil’s evidence, “The reality for the person on the ground, selling drugs, living in poverty, it’s a subsistence activity that…generates…barely enough money, if enough money, or drugs, to sustain one’s own use.’”
This blog post is the latest in a series of updates about this case:
At the time of her arrest, our client was a single mother living on We Wai Kai First Nation, facing her own drug use, precarious housing, and the recent loss of her partner to BC’s toxic drug supply. After selling a small amount of illicit drugs containing fentanyl to an undercover RCMP officer, Ms. Ellis pled guilty to two offences under the Controlled Drugs and Substances Act: trafficking and possession for the purposes of trafficking. Despite our client’s circumstances and the small quantity of drugs involved, the Crown initially sought three years of incarceration.
At the 2021 sentencing hearing, we successfully argued that BC’s sentencing range is not only ineffective and inappropriate for our client, but also for the vast majority of street-based drug traffickers. Incarceration is counter-productive in the sense that it actually drives overdose fatalities and re-offending; it moreover exacerbates poverty, homelessness, and overdose in cells and upon release. Clearly, incarceration—let alone 3 years of it—cannot be the default ‘solution’ for these types of offences. As every level of government and court in Canada has increasingly recognized, a criminal approach to drug use is failing. The sentencing judge’s ground-breaking decision reflected these findings, but was quickly appealed by the Public Prosecution Service of Canada.
In the recent appeal decision, the Court agreed there is no utility in incarcerating Ms. Ellis, given her circumstances, but refrained from upholding the sentencing judge’s ruling that the sentencing range should be abandoned entirely for street-based drug traffickers whose motives are more subsistence-based in nature. Fortunately, the Court recognized the importance of admitting social context evidence at courts of first instance: both to properly calibrate blameworthiness and to guard against bias and stereotyping in judgments. This will surely assist people and their counsel who find themselves in similar situations to Ms. Ellis.
While we are thrilled that our client can continue to thrive (having secured housing and injectable opioid agonist treatment post-sentencing), we are left feeling that an opportunity has been missed to change the way courts deal with these types of offences. This means that the fight continues for a more effective, less punitive approach to street-based drug trafficking offences. Our client represents the ‘rule’ rather than the ‘exception’ for people engaged in street-based drug trafficking, and its time our so-called justice system recognizes that.
Using the law as a catalyst for positive social change, Pivot Legal Society works to improve the lives of marginalized communities.