Justices of the Supreme Court of Canada on Oct. 28, 2021, in Ottawa.Adrian Wyld/The Canadian Press
The Supreme Court of Canada has allowed Alberta’s top court to set a nine-year minimum sentence for wholesale fentanyl traffickers, but warned that trial judges are free to go below the minimum if they believe it to be justified.
In upholding the Alberta Court of Appeal’s starting point for wholesale fentanyl trafficking, a majority of the Supreme Court said appellate courts can move beyond previous sentencing norms to guide lower-court judges, as the public’s understanding of the seriousness of a particular crime evolves.
“The Court of Appeal was entitled to take the lead and consider the public-health crisis in Alberta in the creation of the nine‑year starting point,” wrote Justice Russell Brown and Justice Sheilah Martin, both of whom previously sat on Alberta’s appeal court.
“It is noteworthy that Alberta has one of the highest rates of opioid‑related deaths and overdoses, relative to other provinces and territories.”
The case involved the rare capture and conviction of two wholesale fentanyl traffickers, Cameron Parranto and Patrick Felix, initially sentenced to 11 and seven years, respectively. The Crown appealed, and the appeal court, after setting the new starting point, raised Mr. Parranto’s sentence to 14 years, and Mr. Felix’s to ten.
The importance of the case, however, goes well beyond wholesale drug traffickers.
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The Supreme Court set out to resolve a 20-year-old sentencing debate among the judiciary. The question was whether starting points and sentencing ranges set by appellate courts are permissible, and whether trial judges can get around them to ensure individualized sentencing – including for Indigenous offenders, who are jailed disproportionately. (Mr. Parranto is Métis.)
As has happened frequently during Chief Justice Richard Wagner’s tenure, the court split into several groups, muddying the overall message.
Six justices said starting points and sentencing ranges are permissible, as long as it is understood that they are not binding on trial judges, and that Indigenous offenders remain entitled to special consideration on sentencing.
“Starting points and ranges are tools, not straitjackets,” Justice Brown and Justice Martin wrote, endorsed by Chief Justice Wagner and Justice Nicholas Kasirer. Two others, Justice Rosalie Abella (who retired in July but has six months to complete the cases in which she was involved) and Justice Andromache Karakatsanis, agreed with them on this point.
Three judges said judicially-set minimums are wrong in principle because they interfere with the discretion of trial judges. Minimum sentences can be set only by Parliament, they said. (The Supreme Court and other courts have struck down many mandatory minimum sentences set by Parliament, ruling them grossly disproportionate.) What’s more, they said Alberta’s Court of Appeal has willfully ignored previous Supreme Court direction in several instances, treating its starting points as binding, in areas such as sexual assault.
“This Court has consistently reminded provincial appellate courts not to vary sentences unless they are demonstrably unfit or tainted by a material error in principle … Yet the Court of Appeal of Alberta continues to rely on starting points to circumvent this standard,” Justice Malcolm Rowe wrote. Justice Michael Moldaver and Justice Suzanne Côté, writing separately, agreed that starting points are impermissible.
Seven justices – including the three who opposed the use of starting points – said the initial sentences were too low, and the appeal court was right to raise them. Only Justices Abella and Karakatsanis, though they endorsed starting points, felt the trial judges were within their rights to give the lower sentences they did. (In Mr. Felix’s case, the court received 17 reference letters from family, friends and neighbours, and Court of Queen’s Bench Justice B.R. Burrows described his rehabilitation prospects as “extremely promising.”)
Melvyn Green, who retired in April after 16 years as a judge on the Ontario Provincial Court, said the Supreme Court ruling is unsatisfying and will cause confusion among trial judges.
“The judges did exactly what the Supreme Court has directed a judge is supposed to do,” he said in an interview. “And the Court of Appeal did exactly what they said a Court of Appeal is not supposed to do,” by substituting their own views of a proper sentence. “Well, duh. Any judge is going to say, ‘if this is what the Supreme Court of Canada tells us, why the heck did they interfere with the sentence?’ ”
David Schermbrucker, a lawyer with the Public Prosecution Service of Canada, said the ruling is important in increasing sentences for wholesale traffickers in fentanyl. “We’re talking about the upper end of the echelon here, the directors of wholesale trafficking rings.”
Paul Moreau, a lawyer who represented Mr. Parranto, said he expects “very lively litigation” in the Alberta Court of Appeal on the use of starting points in sentencing.
The ruling’s effect on the sentencing of Indigenous offenders will depend on “how seriously the Court of Appeal [in Alberta] takes this decision,” said Jonathan Rudin, program director for Aboriginal Legal Services, which intervened.
The Supreme Court majority stressed that mitigating factors such as being of good character should not be built into starting points, said Daniel Song, who represented an intervenor, the Criminal Trial Lawyers’ Association.
Doing so “had the effect of constraining a sentencing judge’s discretion in assigning weight to key mitigating factors, such as the absence of a criminal record,” he said, and contributed to longer sentences for minorities and the underprivileged.
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