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Judges with British Columbia’s highest court have reserved a decision on whether a suspended sentence for a woman convicted of selling small amounts of fentanyl is reflective of a shift in attitudes and understanding of substance use, or akin to the court throwing its hands up on the issue of drug crimes.

Tanya Ellis, of Campbell River, B.C., had pleaded guilty to one count of trafficking in fentanyl and one count of possession of fentanyl and cocaine for the purposes of trafficking after selling fentanyl to an undercover police officer in 2019.

Last November, a B.C. Provincial Court judge broke with legal precedent and sentenced Ms. Ellis, 43, to 12 months’ probation with some conditions, emphasizing rehabilitation over punishment. Supporters hailed the sentence as a landmark decision that reflected the ineffectiveness of incarceration for low-level drug crimes and jail time being at odds with public-health objectives.

The Public Prosecution Service of Canada, which had sought a three-year sentence, citing principles of deterrence and denunciation, filed its appeal in mid-December.

In the B.C. Court of Appeal on Thursday, federal Crown counsel Ryan Carrier noted that Ms. Ellis had a prior conviction for trafficking and has spent almost 20 years under some form of community supervision. The probationary sentence – which came with conditions including community service and referral to addiction treatment or counselling, if she consented – does not reflect the gravity of Ms. Ellis’s crimes and is “essentially licence for the respondent to continue doing pretty much what she’s been doing for 20 years,” he told a panel of three judges.

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Mr. Carrier said Provincial Court Justice Barbara Flewelling failed to conduct an individualized assessment of Ms. Ellis’s moral culpability and instead relied on generalities about low-level dealers only selling to support their own addictions. Ms. Ellis had stable housing, turned a profit from selling fentanyl and was on methadone, which allowed her to avoid significant opioid withdrawal symptoms, he said.

He said these generalities stemmed from the expert evidence of Ryan McNeil, the director of harm-reduction research at the Yale School of Medicine and a research scientist at the B.C. Centre on Substance Use. Dr. McNeil presented a generalized picture of a B.C. drug user based on his experience working with people in Vancouver’s Downtown Eastside, and had no direct information about Ms. Ellis’s actual circumstances, Mr. Carrier said.

Lawyer Sarah Runyon, who is co-defending Ms. Ellis with Pivot Legal Society’s Caitlin Shane, said the justice system has failed to effectively deter the drug use and drug dealing precisely because it has ignored the science that formed the expert evidence in the case.

“We have continued to sentence precisely on stereotypes on this inaccurate dichotomy of this victim-user and villain drug dealer,” she said. “This entire piece of litigation set out to dismantle that misplaced dichotomy that is entirely premised upon these anecdotal assumptions.”

Dr. McNeil was properly qualified to provide expert evidence because he is one of the leading experts on harm reduction in North America, she said.

Ms. Runyon said Ms. Ellis is now in transitional housing, on opioid agonist therapy and is otherwise thriving, which shows the suspended sentence was effective.

The B.C. Court of Appeal in 2017 upped the sentencing range for dealing fentanyl from six to 12 months to 18 to 36 months or longer, citing the growing number of deaths attributed to the powerful opioid as B.C.’s toxic drug crisis took off. In her decision last fall, Justice Flewelling said she found that those who sell small amounts of illegal drugs to feed their own addictions are less morally culpable than criminal organizations further up the hierarchy.

At the sentencing hearing in early 2021, Campbell River Provincial Court heard that Ms. Ellis grew up seeing her father assault her mother, and that she frequently acted out and began experimenting with drugs in Grade 3. By her early 20s, she was also in an abusive relationship in which a man physically and sexually assaulted her.

After that relationship ended, Ms. Ellis met a man with whom she went on to have two children. According to the statement of facts, that man had a substance-use disorder, was involved in criminal activity and spent “significant” periods of time in jail. He also introduced Ms. Ellis to heroin.

The couple had gone to residential treatment several times; two days after a five-week program in August, 2019, Ms. Ellis’s partner died from a suspected overdose, the court heard.

After the death, Ms. Ellis “stayed in bed for days, wondering how she was going to support her children and her drug addiction,” according to the statement of facts. She started selling small amounts of fentanyl, with the majority of proceeds going toward her own addiction.

In her written decision, Justice Flewelling said there has been a shift in societal and judicial attitudes and understanding about drug addiction that allowed her to revisit the sentencing range established in the B.C. Court of Appeal.

“I am imposing a sentence that will assist Ms. Ellis in her desire to associate with healthy people, learn other skills and tools that will assist her in managing her illness but, most importantly, assist her in realizing that she is a valuable and contributing member of this community,” she said.

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