Pubdate: Tue, 25 Oct 2016
Source: Victoria Times-Colonist (CN BC)
Copyright: 2016 Times Colonist
Contact:  http://www.timescolonist.com/
Details: http://www.mapinc.org/media/481
Author: Katie DeRosa
Page: A3

ARE HARSHER SENTENCES THE ANSWER?

As the fentanyl crisis continues to kill people across B.C., the
province's judges must decide whether those who sell the powerful
opioid deserve a harsher punishment. However, some lawyers and
criminologists warn that the criminal courts are an ineffective
solution to the war on drugs.

A Campbell River provincial court judge recently ruled that the
presence of fentanyl in a drug seizure was an aggravating factor that
led to a 12-month jail sentence for 23-year-old Tylor Michael James
Derycke, who was selling drugs to feed his own addiction.

In her judgment, Judge Barbara Flewelling said that while the
Controlled Drugs and Substances Act does not prescribe a higher
sentence for selling fentanyl, she can consider the drug's
consequences.

"Courts across the country have made many references over the years to
the 'scourge' of hard drugs such as heroin and cocaine and the human
cost and devastation that those drugs cause. In determining where in
the range of a fit sentence Mr. Derycke would fall, I am entitled to
consider the dramatic rise in fentanyl-related overdose deaths and the
public health emergency that has been declared in British Columbia and
in other provinces," Flewelling wrote.

Derycke was convicted of possession of fentanyl, heroin, cocaine and
marijuana for the purpose of trafficking. His lawyer was pushing for a
six-month sentence because it was Derycke's first drug offence and he
has been battling heroin addiction since he was 14.

Flewelling hoped her judgment would send a clear message "that drug
traffickers cannot be wilfully blind to the nature and consequences of
the drugs they are selling. I am also of the view that a sentence in a
smaller community such as Campbell River has a greater impact in
deterring others who are recruited by drug trafficking operations to
sell drugs here."

In September, federal prosecutors in B.C. called for an unprecedented
18-year sentence for fentanyl trafficker Walter James McCormick, who
was arrested in a Vancouver police investigation. The sentencing for
that case is set for Dec. 6.

In New Hampshire, the attorney general's office called for charges
similar to homicide in an effort to make dealers criminally liable for
fentanyl-related deaths.

A judge in Kelowna declined to consider fentanyl as an aggravating
factor in a drug-trafficking case, saying it's up to lawmakers to
explicitly state whether fentanyl deserves a tougher sentence.

Neil Boyd, a criminologist at Simon Fraser University, said while it's
appropriate for the courts to consider the fentanyl epidemic in their
sentencing decisions, the criminal courts are not the best instrument
for solving the larger problems.

"When there's an awareness on the part of the individual that the drug
had fentanyl in it, then passing that risk onto the consumer is
something the courts are going to see as an aggravating circumstance
in sentencing," Boyd said.

"But I don't think that the best solution to the problem of opioid
addiction is to continue with criminalization. I think it's important
we look at different ways of dealing with addiction that are
noncriminal."

Victoria criminal lawyer Mike Mulligan has little hope that harsher
sentences will act as a deterrent to drug dealers, who are often
addicts themselves.

"If the risk of death isn't deterring you from using drugs, the risk
of going to jail for some period of time surely isn't going to do it,"
he said.

One only has to look at the massive levels of incarceration in the
U.S. as proof that locking people up does not end the war on drugs,
Mulligan said.

"All of our efforts for many years to try to deal with drug use and
drug addiction as a criminal justice matter have been utterly
unsuccessful," he said.
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