R v Ellis at the BC Court of Appeal: Fighting for a New Approach to Sentencing in Drug Trafficking Offences

This blog post is a follow-up to our December 2021 blog post:

“R v Ellis: A New Frontier for Sentencing Drug Trafficking Offences”

On December 29, 2021, we were thrilled to receive an affirming decision from the BC Provincial Court in the case of R v Ellis. Alongside Sarah Runyon of Marion & Runyon, we successfully argued a departure from BC’s steep sentencing range of 18-36 months for street-based drug trafficking offences involving fentanyl. Rather than serve up to 3 years in jail, our client Tanya Ellis was instead able to access the health supports she wanted and to focus on raising her children.

Despite our government’s routine claims to support evidence-based, health-focused drug policy, the Public Prosecution Service of Canada quickly appealed the decision. That means we will be at the BC Court of Appeal defending the provincial court decision on May 26, 2022.

BC’s sentencing range for drug trafficking is outdated and ineffective

Pivot has long been calling out the inefficacy and harms of incarcerating street-based drug traffickers, but BC’s reliance on a hyper-punitive sentencing range (which increased in 2017 from the prior range of 6-12 months) has made it difficult to forge any meaningful or evidence-based progress. Thanks to Tanya’s courage, we were able to impress upon the Court that Tanya’s circumstances are not the exception but the rule—and that denunciation and deterrence in the form of incarceration have utterly failed all of us.

The reasons to de-prioritize denunciation and deterrence when sentencing for street-based drug trafficking charges are numerous. We hear these reasons every day from our clients and comrades in the Downtown Eastside and beyond, and they were included in our evidence at trial in the form of expert testimony by our friend Dr. Ryan McNeil:

  • Incarceration has not deterred the selling of drugs by street-based drug traffickers, and in fact increases the odds that a person engages in drug selling
  • Tough-on-crime approaches typically target street-based drug traffickers who are poor, racialized, and already over-incarcerated
  • Incarceration does not abate overdose rates. In fact, the risk of overdose upon release is dramatically increased (while fear of incarceration itself deters people from calling 911 in the event of overdose)
  • The reasons underpinning street-based drug trafficking are systemic, and oftentimes rooted in poverty, colonial trauma, housing vulnerability, etc. A jail sentence exacerbates these factors; it does not heal them
  • Street-based drug traffickers are typically people who use drugs themselves, and whose income from trafficking is scarcely enough to pay for personal use
  • Drug dealers are not inherently exploitative and can in fact be critical to risk management in a volatile and toxic drug market. Disrupting a known drug supply increases the vulnerability of purchasers in the absence of any State-sourced safe supply
  • It is drug prohibition and not street-based dealing that has created an illicit market of increasing toxicity and which currently kills up to 6 people a day in BC alone

The Sentencing Hearing

At sentencing we submitted, and the Court agreed, that re-evaluating BC’s punitive sentencing range is necessary, particularly given shifts in societal, medical, and judicial understandings of drug use and addiction since the opioid crisis was declared in 2016.

I conclude…that since the onset of the opioid crisis in 2016, and since the Smith decision, there has been a fundamental shift in societal understanding of drug addiction—the underlying causes, risk factors and the best evidence based treatment protocols and guidelines…In my view this “fundamentally shifts the parameters of the debate” and allows me to revisit the sentencing range established in Smith for drug trafficking at the street level and to consider the role of deterrence and denunciation in assessing a fit sentence for these individuals.

Reasons for Sentence, at para 88.

We were pleased that in re-evaluating BC’s sentencing range, the sentencing judge agreed that “rehabilitation” (in the form of voluntary support) should be prioritized over denunciation and deterrence.

I do not believe a jail sentence is appropriate. My sentence is designed with a restorative focus. I am imposing a sentence that will assist Ms. Ellis in her desire to associate with healthy people, learn other skills and tools that will assist her in managing her illness but, most importantly, assist her in realizing that she is a valuable and contributing member of this community.

Reasons for Sentence, at para 143.

Read our full argument at trial 

The Appeal

We will be defending the provincial court judge’s decision before the BC Court of Appeal on May 26, 2022.

Several intervenors will be joining the proceedings to make submissions of their own, including the Vancouver Area Network of Drug Users, Canadian Drug Policy Coalition, West Coast LEAF, and the Independent Criminal Defence Advocacy Society.

Read our full submissions on appeal

Stay tuned for updates on our website and social media!

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Using the law as a catalyst for positive social change, Pivot Legal Society works to improve the lives of marginalized communities.