Health Canada reports that over 10,300 Canadians died as a result of an opioid-related overdose between January 2016 and September 2018, and fentanyl substances are linked to 73 percent of these deaths. The disturbing number of Canadians who have died in recent years due to a street fentanyl overdose has raised the question: “Can dealers and traffickers be held criminally responsible if someone dies?”
Street fentanyl refers to fentanyl that was not obtained via a prescription. Fentanyl is an opioid, like codeine, methadone and morphine, but it’s extremely potent, as much as 100 times stronger than morphine. Fentanyl has been prescribed for some years as a pain medication, but it’s dangerous when misused because it’s so potent that there’s a very small margin between the amount of fentanyl needed to get high and the amount that will kill a person.
Street fentanyl is typically sold in the form of a powder or pill, or mixed with other drugs such as cocaine or heroin. Fentanyl cannot be detected by smell or taste so a consumer of street drugs may not know they are buying a drug that contains fentanyl. Also, every person reacts differently to fentanyl and individual tolerance can change for persons who haven’t consumed fentanyl recently, including persons taking fentanyl via a prescription patch.
Charging Dealers for Fentanyl Deaths
In the past, dealers have rarely been charged or held criminally responsible when a customer has died of a drug overdose. However, this circumstance appears to be changing in recent years and Ontario Provincial Police are increasingly charging fentanyl traffickers with manslaughter when they supplied an illegal drug containing fentanyl to a customer who died as a result.
The legal standard for manslaughter is the ‘objective foreseeability of bodily harm’, which may or may not include death. Given the known dangers of fentanyl, anyone selling fentanyl to another person is now deemed to be aware of its potentially lethal effect.
In a recent case, R. v. Walker (2019), a 23-year-old man was convicted of one count of trafficking fentanyl and one count of criminal negligence causing death after he sold several drugs, including heroin and fentanyl, to a friend (Mr. Kelly) who died as a result. The defendant was a ‘low level’ drug dealer and was aware of the dangers of fentanyl use. He had previously told another customer that “only a line [of fentanyl] can kill you”.
The defendant entered a guilty plea before the preliminary inquiry to allow speedier closure for the victim’s family, and the judge viewed the early guilty plea as a mitigating factor in sentencing. On the other hand, the judge found the defendant’s actions as being single-mindedly profit-driven such that he provided a potentially lethal drug to a friend. And, the defendant’s perceived indifference to a conceivable loss of life, along with a desire to discourage the sale of deadly opioids in the area, suggested that a denunciatory sentence is needed.
Upon consideration of all the above factors, the judge found that an appropriate starting jail sentence in this case, for the offence of criminal negligence causing death, is 5 years. However, because the defendant provided the prosecution with assistance in building their case against the drug trafficker connected with Mr. Kelly’s death, the defendant’s jail sentence was reduced to 3.5 years. This is commonly referred to as ‘the informer discount’. Pre-sentence custody is a further factor applied to the defendant’s sentence and he was credited at 1.5 days for every day served. Finally, on the basis of the defence’s argument that the defendant experienced adverse and stress conditions (such as the lack of a private toilet) for about one tenth of his incarceration when the facility was on lockdown, the judge further reduced sentencing by an additional 30 days.
Finding a fentanyl dealer criminally responsible for a death is a complicated issue for several reasons. Fentanyl dealers are typically not large-scale, sophisticated drug traffickers. Rather, they are often themselves drug addicts; many have a mental health disorder; and many are selling the drug largely to feed their own addiction. Further, it can be difficult to trace the original source of a batch of drugs and also, which drug caused a particular death.
Earlier this year, a London Ontario police officer, Det. Sgt. Alex Krygsman stated that in the future, every fentanyl-related death will be investigated “on a case-by-case basis” and it’s quite possible that manslaughter charges will be brought against the alleged fentanyl trafficker (as reported in CBC News, May 3rd). This means that anyone dealing in dangerous drugs such as fentanyl needs to be prepared for serious criminal charges laid against them if a customer dies.
If you were arrested on drug-related charges, get help from an experienced Toronto drug offences lawyer at the Law Firm of Ted Yoannou. Fentanyl trafficking and other drug trafficking charges need to be taken very seriously so get the strongest possible defence team working on your behalf to have the charges against you dismissed.