Vancouver drug decriminalization is a heavily contested topic amongst city officials. In response to the alarming rise of overdoses in British Columbia, the municipal government of Vancouver recently submitted a request to the federal government to decriminalize the simple possession of illicit drugs within the city of Vancouver.
The Minister of Health’s Power to Exempt Certain Controlled Substances
The Minister of Health has the authority, pursuant to section 56(1) of the Controlled Drugs and Substances Act, to exempt any substance if the Minister determines it is necessary for medical or scientific purposes or determines it is in the public interest. Section 56(1) was originally legislated to support the advancement of medical and scientific research. Now, the focus of the request is the public interest. If the Minister determines it is in the public interest and makes an exemption, then it would not be an offence under the CDSA to possess those exempt substances.
What Kinds of Drugs And How Much?
The proposal seeks an exemption for opioids, including heroin, fentanyl and other powder street opioids, as well as cocaine, crack cocaine and amphetamine. These are the drugs most commonly involved in the current opioid overdose crisis.
- Opioids (i.e. heroin, fentanyl, and other powder street opioids): 2 grams
- Cocaine: 3 grams
- Crack Cocaine: 10 rocks or 1 gram (1 rock = 0.1 grams)
- Amphetamine: 1.5 grams
Vancouver Drug Decriminalization: How Drastic is the Change?
While Vancouver is taking an initiative to prevent and mitigate the negative impacts associated with the overdose crisis, it is important to remember that decriminalization is not legalization. The proposal is limited to simple possession. The exemption does not apply to commercial purposes such as possession for the purpose of trafficking.
Even before Vancouver’s proposal, the number of charges recommended for simple possession has diminished over the years. Possession charges are certainly less common than for more serious offences. The list below outlines the number of charges the Vancouver Police Department recommended for simple possession over the past 12.5 years:
- 2008: 476 charges for simple possession
- 2009: 224
- 2010: 141
- 2011: 90
- 2012: 65
- 2013: 70
- 2014: 48
- 2015: 65
- 2016: 43
- 2017: 30
- 2018: 21
- 2019: 16
- 2020: 10 (January to June 2020)
Given the significant decrease in the number of charges recommended for simple possession, the proposal does not bring about a drastic change for drug offences in the city of Vancouver. Nevertheless, the proposal is a step towards the more general decriminalization of controlled substances. It may also reduce the stigma associated with drug use.
Oct 13, 2018
These days in BC and the lower mainland in particular, the “opioid crisis” is no secret. I don’t believe anyone would disagree that we as a society are in the throes of an unprecedented health crisis.
Fentanyl was synthesized in 1960. It is 50-100 times more potent than morphine but considered significantly safer due to the decreased risk of respiratory depression in patients. Therefore, it quickly became the preferred anesthetic for cardiac surgery. When it began being available by prescription to treat pain, people of course began abusing it.
Fentanyl was much cheaper than heroin so dealers often cut heroin or other drugs with small amounts of fentanyl. The unintentional fatalities by overdose where fentanyl was detected date back to the early 2000s, however, the problem skyrocketed in Canada beginning in about 2014-2015. People are not just unwittingly consuming drugs laced with fentanyl now; it has become a drug of choice and a profitable commodity along with its much more potent analogues.
In 2013-2014, fentanyl overdoses began claiming lives at staggering rates, and those rates have steadily increased. In 2017, over 600 people in BC died from fentanyl-related overdoses, and 84% of all drug overdose deaths in BC included fentanyl or its analogues. In Canada, opioid related deaths increased by 34% between 2016 and 2017. The rate for non-opioid related overdose deaths however, remains stable, with no significant increase, which has been interpreted (I think naively) by the authorities to mean this is a problem with a specific drug rather than with addiction. Public awareness of the dangers of fentanyl followed shortly thereafter, and the criminal justice system responded accordingly.
Related: Drugs and Music Festivals/Raves
In March of 2017, the BC Court of Appeal in R. v. Smith increased the sentencing range for first time, street-level fentanyl traffickers to 18-36 months, making sentencing 3-6 times harsher for fentanyl than for other Schedule I substances.
Smith is the leading case for street-level fentanyl dealers. For higher-street-level to mid-level traffickers, sentences in the range of 2 years less a day to 8 years have been recently been handed down. For higher-mid-level to “king pin” type fentanyl dealers, recent sentences in the range of 8 – 16 years have been given.
To put this into context for a moment, consider that in 2014, almost 1300 people in Canada were killed in car accidents caused by impaired drivers. That is well over 50% of all car accident fatalities. These numbers are comparable to recent opioid/drug overdose fatalities in BC and Canada. The BC Coroners Service estimates that 3.5 people die everyday in BC from illicit drug overdoses, while MADD estimates that 3.5 people die everyday in Canada from accidents caused by impaired drivers.
If we are sentencing offenders based on the level of risk they knowingly take on with respect to the safety of the public, then these two types of offences should yield comparable sentences. The high level of risk to the public is well-known for both impaired driving and the sale of fentanyl.
Impaired driving causing death can yield sentences in the range of 18 months to 8 years. However, simple impaired driving (NOT causing death) cases almost never result in jail or even a criminal record for a first-time offence. Yet, fentanyl trafficking NOT causing death still leads to the pen.
What we are seeing is a misguided, panicked response by the courts, who, along with the government, are under great pressure to solve a health crisis. The result is a legal landscape which is highly unfriendly to the accused.
The Crown approaches fentanyl sentencing with a lack of discretion to negotiate. They may not give an accused credit for pleading guilty. They may seek consecutive jail sentences on each charge. They base their sentencing positions on Crown policy, not on case law. They have even reserved the right to charge fentanyl dealers with manslaughter. While it hasn’t happened in BC yet, is has in Ontario and Alberta. The outcomes of those cases are not yet determined. The approach taken by the Crown can be summarized as aggressive and unsympathetic. This can and needs to be countered by defence counsel.
While the courts have increased sentences, they have also left room for certain arguments in favor of a lower sentence. These arguments range from emphasizing certain mitigating factors to relying on specific cases to seek concurrent sentences for different offences. There are also well-supported arguments to be made about the effectiveness of jail in achieving deterrence and whether deterrence actually works on drug traffickers. Charter arguments can also be made at the sentencing stage; establishing a Charter breach in the investigation can result in a reduction of sentence.
The existence of the fentanyl crisis is not a matter of debate. The solution, however, is. The response of the courts has been swift and harsh, but is still being refined. In time, the voices of reason (mental health and addictions experts) will prevail. In time, courts will be forced to rethink their approach. In time, it will become clear that harsh sentences have been given, but fentanyl hasn’t gone away and addiction hasn’t been cured. Until that time comes, as defence counsel, I will continue putting the information before the courts and advocating zealously for fair sentences for my clients. If you have are facing a fentanyl charge please contact us for assistance with your case.
If you want more information about the consequences of drug possession and use in BC, contact Filkow Law today.
Aug 08, 2018
A 19-year old boy, David, has bought tickets to a music festival. He is excited to go with his friends from school. They’ve all just finished their first year of university and want to celebrate during the summer. Someone in David’s group chat suggests they pick up some MDMA (Molly) to try. None of the group has done any drugs before, but they are considering experimenting. One of David’s friends buys the drugs and brings them to the festival.
At the festival, David’s friend leaves him with the drugs and goes to the washroom. David is left on his own. He relaxes and enjoys the weather. David looks around and sees an attractive girl around his age smiling at him. She walks over and starts talking to him. After some small talk, she asks David if he has any Molly. David is slightly put off, but he replies that he does. The girl says she forgot to bring hers and asks if she can buy a couple of tablets for herself and her friend. David says maybe later and looks to see where his friend went. The girl is insistent that she wants to feel good now and persists in asking for the drugs. David doesn’t put up a fight and agrees: he produces two tablets of Molly. The girl takes the drugs, gives David some money, and leaves. A couple of minutes later, David is arrested for the possession of drugs and the possessing drugs for the purpose of trafficking.
David was clearly not a drug dealer or trying to sell drugs for any commercial gain. David was 19-years old. He had never used drugs in his life. He had no intention of selling drugs. He wanted to have a good time with his friends at the music festival. The attractive girl was one of several undercover cops who were approaching young boys to buy drugs. Even though he didn’t plan on selling drugs, David sold some drugs to her. As a result, he is now facing a criminal record for drug charges for the rest of his life.
BC is home to an impressive number of music festivals: Breakout, FVDED in the Park, Basscoast, Shambhala, Squamish, SKOOKUM. Every year, there are dozens of people like David who are arrested at music festivals. They generally fall prey to substantial undercover operations planned and executed by the police.
On the one hand, it is important to be careful and avoid putting yourself in such a situation. On the other hand, it may seem offensive that the police are using their extensive training and resources to approach and arrest kids at music festivals for selling drugs. What can David do now that he has been charged? Is the undercover operation legal?
What is Entrapment?
Entrapment, broadly speaking, is a defence available when a law enforcement officer induces someone to commit a criminal act, when that person would not have otherwise committed that act. Canada has adopted its definition from a US Supreme Court Case called Sorrells v United States (1932), where it defined entrapment as follows:
The conception and planning of an offence by an officer, and his or her procurement of its commission by one who would not have perpetrated it except for the trickery, persuasion or fraud of the officer.
Entrapment is not a substantive defence, but rather is related to preventing the abuse of process. Courts have the jurisdiction to “withhold its processes from the prosecution on the basis that such would bring the administration of justice into disrepute” (R v Amato,  CarswellBC 661 (SCC) at para 68; R v Mack,  CarswellBC 701 (SCC) at para 73). According to the Supreme Court of Canada, the concern is that the executive branch of government, through the deception and trickery of its officers, are abusing the legal process and the judiciary to obtain convictions. Allowing cases to be prosecuted based on evidence that was obtained in this manner would undermine the public’s confidence and faith in the criminal justice system. As a result, the remedy is generally a stay of proceedings.
The leading case on entrapment is the Supreme Court of Canada decision in R v Mack,  CarswellBC 701. Mack establishes the defence of entrapment in Canadian law. Procedurally, entrapment is only raised as an issue after the Crown has proved its case beyond a reasonable doubt. This gives the accused a chance to be acquitted before raising the defence of entrapment. If the Crown does prove its case, then the burden of proof falls on the accused to prove entrapment on a balance of probabilities (Mack at para 166).
When Can the Police Entrap You?
First, the general rule from Mack is that the police can only provide an opportunity to a person to commit a crime when the officer has a reasonable suspicion that the person is already engaged in a particular criminal activity. In other words, officers cannot engage in “random virtue testing”. This is where an undercover officer—with no reasonable suspicion of criminal activity—will “test” a person’s virtue by giving them a clear opportunity to commit a criminal act, such as selling drugs. Without an existing and reasonable suspicion that you are engaged in selling drugs, for example, this testing is impermissible.
However, the exception is when the police are involved in a bona fide investigation where they reasonably suspect criminal activity is occuring (Mack at para 122; R v Barnes,  CarswellBC 11 (SCC) at para 23). When there is such an investigation, the police can approach any person in the area with the opportunity to commit the particular offence being investigated. Moreover, BC Provincial Court has held that statistical evidence is not required to establish reasonable suspicion (R v Chu, 2009 BCPC 76 at para 28).
The police can therefore engage in random virtue testing in two situations:
The person is reasonably suspected to already be engaged in criminal activity.
The physical location is reasonably suspected to be a place where criminal activity is occurring.
However, even if either of these situations are met, a police officer still cannot go beyond providing an opportunity to commit a criminal act (Mack at paras 122-123). That is, they cannot go so far as to induce the criminal act. The SCC identifies several factors that can assist in determining when the police have crossed the line into inducing criminal acts. For example, the type of crime, the type of inducement used, the timing, the persistence, exploitation, proportionality, and whether an average person would be induced (Mack at paras 139-148).
Case law generally does not analytically go through every factor, but the factors in Mack underpin a judge’s decision. For instance, in R v El-Sheikh-Ali,  CarswellOnt 4337 (Ont Ct J), the judge held that the undercover officer went too far in trying to lure the accused with a sexual relationship and deliberately presenting herself as a “sex object” (El-Sheikh-Ali at para 20). The timing of the inducement here was before the drugs were sold, the inducement used was clearly sexual, and there was persistence. Additionally, the accused was a vulnerable immigrant who had been divorced for six years. His ex-wife and two children were also barred from entering Canada from Lebanon, he therefore admitted to being lonely and looking for female companionship.
Despite the decision in El-Sheikh-Ali, suggestive or flirty behaviour by an undercover officer is generally permissible and not sufficient to constitute an inducement.
Another case in Ontario provides some clarification of when police go beyond providing an opportunity to commit a crime and into inducing the criminal act itself. In R v S (J),  CarswellOnt 68 (Ont CA), some undercover officers approached some young concertgoers at a restaurant near the venue. The targeted youth was found to be naive, hesitant, and not selling for profit. He was hesitant and unsure of what to do with the requests to buy marijuana. He looked to his friends for support. He was found to have sold the drugs out of goodwill to a fellow concertgoer. It was found that he would not have sold the drugs if not for the officers’ persistent requests. The court held that the actions of the officers went beyond providing an opportunity to commit an offence and into inducing the commission of the offence.
Entrapment at Music Festivals
The case law on entrapment at music festivals is limited. In R v MacLeod, 2011 BCSC 1812, the BC Supreme Court held that a music festival could be the subject of a bona fide inquiry. In other words, a music festival could be reasonably suspected of being a place where criminal activity is occurring, namely drug trafficking. In support of their decision, the court made an analogy to raves. They cited prior cases where sting operations were held at Pacific Coliseum during raves (R v Yee, 2009 BCPC 369; R v Chu, 2009 BCPC 76). In both those cases, the defence of entrapment was raised, and in both cases it was dismissed because the location was held to be the subject of a bona fide investigation.
The current law is not favourable to accused persons caught by these undercover operations. While entrapment is available as a legal defence, it is exceedingly difficult to prove. Generally, the police set up an investigation for criminal activity prior to executing their undercover operations. Since statistical evidence is not required, it can be easy for the Crown to prove that there is a bona fide investigation of criminal activity in a particular location.
Once an investigation has begun in a particular location, the police may legally pursue random virtue testing of any person in that location. The only limit remaining on the police is the grey area between presenting an opportunity to commit a crime and actually inducing the person to commit a crime. Case law suggests that only the more egregious examples of police conduct will result in the defence of entrapment being successful, such as offering sexual relations or browbeating a naive youth who had no prior intention to sell. It is unlikely that this breaches will be found in most cases, such as David’s above. In R v Chu, 2009 BCPC 76, the judge cited two cases where the officer’s persistence and dress, as well as the accused’s reluctance and lack of desire to sell were “not sufficient to support the claim of entrapment” (Chu at para 34). In these two cases, the undercover officers were at raves asking for ecstasy. In both cases, the accused acquiesced, sold to the officers, and the defence of entrapment was dismissed.
It may be helpful to try and distinguish a music festival from a rave, but MacLeod has held that a music festival can also be the subject of a reasonable suspicion of drug trafficking.
Of course, an individual’s circumstances may be so severe that the defence of entrapment becomes available. The Mack factors of when an officer’s conduct goes beyond providing an opportunity will have to be examined with respect to each case. However, in general, entrapment is a defence that will rarely be successful unless there is a substantial error by the police.
If you feel you have been entrapped by a police investigation please contact us for assistance.