On August 16, 2022, the Court of Appeal released R. v. Ellis, 2022 BCCA 278, a highly anticipated decision relating to the sentencing of low-level fentanyl traffickers who traffic to support their own addiction.
Informed by expert evidence, the Provincial Court in this case departed from the established range for fentanyl trafficking offences established by the Court of Appeal finding that there had been a “fundamental shift in societal understanding” to render the sentencing range inapplicable for the accused and for people like her. The Provincial Court sentenced the accused to 12 months probation with minimal conditions.
The Court of Appeal found several errors in principle – including the fact that the Provincial Court established a sentencing range based on a class of offender rather than the gravity of the offence, losing sight of the individualization of sentences.
This case is also of substantial interest to First Nation communities. The offender in this case trafficked on or near We Wai Kai Nation’s reserve, and lived on reserve. We Wai Kai Nation intervened in the appeal, arguing that “any development in the law of sentencing for opioid trafficking offences should be informed by the perspective of Indigenous communities, which bear a disproportionate share of the harm caused by illicit drugs”.
The Court endorsed We Wai Kai Nation’s submissions that where there is evidence of proximity between the offender and an Aboriginal community, the risks and impacts of that community ought to be taken into account in sentencing. The Court held that such consideration “supports the principle of reconciliation by recognizing and giving meaningful effect to the importance of maintaining a mutually respectful relationship between the criminal justice system, Indigenous peoples and their communities”.
We Wai Kai argued, and the Court agreed, that such considerations are even more important where the primary focus of the sentence is restorative in nature, so that the Court has the context necessary to determine whether the needs of the offender or community will be met by the sentence, and to prevent inadvertently exacerbating the disproportionate impact of the opioid crisis on Indigenous communities.
In sentencing the accused to three-years probation with stricter conditions, the Court crafted a unique condition which prohibited the accused from attending the reserve without prior written approval from her probation officer, who must consult with the We Wai Kai Nation Council in making that decision.
This decision serves as a reminder to Crown and trial courts as to the importance of getting evidence of indigenous perspectives where an offence impacts those communities. It also provides precedent for First Nations to request similar conditions to give them more control and supervision over offenders doing harm in the community, and may be a much needed tool to help First Nations combat the continued opioid crisis devastating their communities.
We Wai Kai Nation was represented by David Wu of Arvay Finlay LLP and Parevj Sidhu of BR Law.
The full decision can be found here: R v. Ellis, 2022 BCCA 278