Health and legal experts are urging caution about the idea of charging fentanyl dealers with manslaughter, saying such a move would do little to deter sellers and could instead punish those who are already struggling with substance-use disorders.
B.C. Solicitor-General Mike Farnworth mentioned the idea to reporters at an unrelated event last week, saying it was raised at a recent meeting of federal and provincial public safety ministers.
"We strongly believe that if you're dealing fentanyl, you're dealing death, and you should be facing much more severe penalties such as manslaughter charges," Mr. Farnworth said.
On Wednesday, he clarified that the province would want to target high-level players rather than street-level drug dealers. Illegal importers bring bootleg fentanyl into Canada to cut into street drugs such as heroin, leading to an epidemic of overdoses that has hit British Columbia particularly hard.
"People who are importing substances, fentanyl, from China – they know what they're doing. They know where it is going. They are dealing death," Mr. Farnworth said. "Those are the big-time individuals. We're not talking about someone who is using on the street. We are talking about those who are importing. Those are the people we want to get."
But Adrienne Smith, a drug-policy lawyer in Vancouver, noted there are logistical problems with such an idea in B.C., where police only recommend charges for Crown approval.
"Prosecution of drug cases is conducted by the federal Crown based on federal guidelines and sentencing is the purview of judges, guided by applicable federal legislation and the common law," they said. (Adrienne Smith prefers the gender-neutral pronoun they.) "Neither of these are answerable to the provincial government. The government can of course propose solutions but, strictly, these things are beyond provincial jurisdiction."
They also noted a possible issue in distinguishing between low- and mid-level dealers who sell to support their own habit and the "big-time individuals."
"This proposal might be well intentioned – to target so-called kingpins – but I would have Charter concerns about the effect it could have on people who would actually be subject to it," they said.
Provincial Health Officer Perry Kendall said that while he understands the intention – deterrence and a strong message of social disapprobation and punishment – empirical data suggest stricter sentences are unlikely to be a deterrent or affect the drug supply.
He cited the drastically different penalties related to crack and powdered cocaine in the United States. Under a law enacted in 1986, the sale of five grams of crack cocaine was punishable by a five-year prison sentence, while the quantity of cocaine required for the same sentence was 500 grams.
Opponents argued there was no scientific or medical reason for the 1:100 ratio, which disproportionately affected African-Americans. The U.S. Sentencing Commission found that while two-thirds of crack users were white or Hispanic, more than 80 per cent of people sentenced for crack offences were black. (The law was revised in 2010.)
"It had no effect on supply, but did fill the jails with lower-level dealers, who also happened to be minorities of colour," Dr. Kendall said. "Similarly, the mandatory minimums imposed by the Conservatives and [similar] laws in the U.S. have been evaluated by criminologists and found to have little or no real deterrence."
Dr. Kendall noted there is a risk that "the policy implementation will not be able to distinguish between importers or non-user, large-scale dealers and the easier-to-apprehend street-level user/dealer."
"Our attempts to destigmatize, through decriminalizing the user and treating him or her as a person with an illness rather than a criminal, could be jeopardized," he said.
In Alberta, where police lay charges, four people have been charged with manslaughter for dealing fentanyl and carfentanil. The manslaughter charge against one was stayed after he pleaded guilty to the lesser offence of trafficking; the three other cases remain before the courts.
B.C. courts have made some moves to address opioids through punitive measures. In March, the B.C. Court of Appeal ruled that drug dealers selling fentanyl should receive sentences in the range of 19 to possibly more than 36 months – three times the range for selling drugs such as heroin and cocaine.
"Recognizing a different and markedly higher sentencing range for street-level dealing in fentanyl turns on the enhanced risks associated with that activity and the individual responsibility of dealers given those risks and public knowledge of them," Justice David Harris wrote.
That ruling is binding only in B.C., but other jurisdictions can follow it.
Mr. Farnworth, who is also B.C.'s Public Safety Minister, said the province is working on a package of initiatives on fentanyl for the weeks and months ahead.
B.C. had more than 1,000 illicit drug overdose deaths in the first eight months of this year. Fentanyl was detected in 81 per cent of them.
With a report from Justine Hunter in Victoria