R. v Ellis is about whether a sentencing range of 18-to-36 months of jail is appropriate for drug users who sell small amounts of fentanyl at the street level as a means of ensuring their own supply and prevent withdrawal.
The person being sentenced in this case, Ms. Ellis, is a woman who has faced many systemic barriers in life. She has navigated poverty, childhood exposure to intimate partner violence against her mother, an abusive relationship while she was a teenager, the overdose death of her partner and the father of her children, and child welfare interventions in the care of her children (who are Indigenous). Ms. Ellis has been using opioids since she was a young teenager.
Ms. Ellis started selling small amounts of opioids after her partner’s death plunged her deeper into poverty. A mid-level drug dealer would sell her drugs on credit, of which she would keep some for herself and sell the rest to pay back her debt. She made little to no profit.
The drugs contained fentanyl, which is now widespread in BC’s illicit drug supply. After selling drugs twice to undercover police officers (including once in the presence of her daughter), Ms. Ellis was arrested and charged with trafficking in fentanyl and cocaine/fentanyl. She pled guilty to the charges.
For street-level dealers of fentanyl, the BC Court of Appeal set a steep sentencing range of 18 to 36 months in R. v Smith, because of fentanyl’s enhanced risks to the community compared with other substances. While courts continue to have the discretion (or ability) to impose a lesser sentence, the reality is that most people in Ms. Ellis’s circumstances receive jail sentences within the Smith sentencing range.
At Ms. Ellis’s sentencing hearing, the BC Provincial Court relied on the testimony of Dr. Ryan McNeil, an expert in harm reduction research and policy, to reconsider the assumptions that underlie the Smith sentencing range. The sentencing judge found that street-level drug dealers, whose lives are typically marked by drug use, trauma, extreme poverty, and marginalization, have a low level of moral blameworthiness in relation to drug trafficking offences. Further, jailing street-level drug dealers is not only an ineffective way to stop drug trafficking, but also places drug users at high risk of post-incarceration overdose. Based on this reasoning, the sentencing judge determined that the Smith sentencing range was no longer appropriate and imposed a suspended sentence on Ms. Ellis (meaning that she was not sentenced to jail).
The Public Prosecution Service of Canada appealed the sentencing decision. The BC Court of Appeal heard the appeal on May 26, 2022.
West Coast LEAF’s Involvement
West Coast LEAF successfully sought leave to intervene in the appeal to argue that a gendered and equality-informed legal analysis supports the meaningful availability of non-carceral sentences. First, West Coast LEAF will make submissions about gendered pathways to drug use and drug selling, including gendered experiences of poverty, colonialism, trauma, violence and abuse, and the family policing system. Aggravating factors such as the presence of a child during an offence should be considered in relation to the caregiving relationships and responsibilities of the person being sentenced.
Second, West Coast LEAF will make submissions about the gendered implications of jailing women and other people who experience gender-based discrimination, including separation from their children (often at a great distance) and disruption of the parent-child bond. We will argue that courts must also consider the specific harms of jailing parents of Indigenous children in the context of ongoing colonialism, intergenerational trauma, and the overrepresentation of Indigenous children in the family policing system.
Application for Leave to Intervene
The appeal was heard on May 26, 2022.
On August 16, 2022, the BC Court of Appeal ruled that there was no utility in incarcerating Ms. Ellis, reflecting West Coast LEAF’s argument that lived experiences of marginalization must be considered during sentencing. While we are thrilled that Ms. Ellis is not incarcerated, we also recognize the missed opportunity to reimagine a more nuanced, less punitive approach to sentencing all street-based drug trafficking offences.