A judge in Canada made a rare decision: She chose not to send a woman to prison for a drug trafficking conviction. The woman will get probation instead. The judge noted that the defendant sold drugs only to support her own use, and that incarceration would do nothing to help her. The ruling has drawn much media attention. And it raises the question of why, when decriminalizing drug possession is on the agenda in numerous North American jurisidictions, these measures exclude people who sell drugs.
Campbell River Provincial Court Judge Barbara Flewelling, in the Canadian province of British Columbia, issued the ruling on November 29. She sentenced the defendant, a 43-year old woman, to 12 months’ probation and 30 hours of community service. The defendant pleaded guilty to trafficking fentanyl and cocaine, and could have faced a three-year prison term.
The defendant has had repeated criminal-legal system involvement over her lifetime, and has spent 240 days in jail in the last 20 years. “When asked why time in jail hasn’t stopped her from being addicted, she testified that she cleans up but comes back to the same problems and the same struggles,” Judge Flewelling wrote. “She appeared very sad and defeated.”
Flewelling admitted testimony from a Yale University harm reduction researcher that incarceration doesn’t reduce the risk of overdose deaths. In fact, people just released from prison are at greatly heightened risk of fatal overdose due to lowered tolerance. Flewelling also cited BC Chief Coroner Lisa Lapointe, who stated that the province is on track for another year of record-high deaths from toxic illicit drugs.
“I conclude that drug addicts who sell small quantities of drugs at the street level for the primary purpose of ensuring their own drug supply, are far less morally culpable than those farther up in the hierarchy,” Flewelling wrote. “They are motivated, not for profit or greed, but to ensure their own supply and to avoid the severe effects of withdrawal.”
Obviously, Flewelling’s decision applies only to one person in one criminal case. But her reasoning may be seized upon by the anti-drug war movement.
In Canada, the cities of Vancouver and Toronto are both officially pursuing decriminalization of the possession of all illegal drugs. In the United States, Oregon made history in November 2020 by becoming the first state to decriminalize possession of all illegal drugs. These jurisdictions are building on earlier decriminalization efforts by countries around the world—notably, Portugal.
But these efforts focus only on possession of drugs for personal use (and often set low “thresholds” for decriminalized quantities of drugs, meaning drug users with larger amounts are still criminalized). People who sell drugs receive no protections.
“This ruling is a bit of a pushback against that public mob mentality of ‘let’s string up the fentanyl dealers.’”
“A lot of the public reaction is ‘let’s go after the dealers, the people who are selling the fentanyl,’” Scott Bernstein told Filter. Bernstein is the executive director of MAPS Canada, and a drug policy attorney based in Vancouver, BC.
“We’re starting to look at people who are consuming the drugs as victims worthy of a health-based approach rather than a criminal justice one,” he said. “This ruling is a bit of a pushback against that public mob mentality of ‘let’s string up the fentanyl dealers.’”
Flewelling’s decision may help to shift the narrative around people who sell drugs, who often also use them, agreed Leslie McBain, co-founder of Moms Stop the Harm.
“It needs to be highlighted and it needs to be brought to the attention of politicians and the legal society,” she told Filter. Her organization has been raising the alarm about toxic illicit supplies in Canada driving historic drug-related death rates.
“No matter what happens with this woman … this ruling does lower the stigma and brings compassion,” she said.
Bernstein described the ruling as rare and certainly unique in the last several years in Canada. Going forward, more judges might choose to follow Flewelling’s example, he believes. But he also cautioned that the prosecutor plans to appeal the case, and it could end up going to the Supreme Court of Canada.
“Whether this is a game-changer within Canada, it depends,” he said. “One ruling from a judge based on a sentencing decision doesn’t make binding precedent for other judges. Sentencing decisions are often discretionary based on the person’s circumstances, and judges are allowed to take into account the history and trauma of the person in front of them.”
The Ruling’s Limitations
Despite the potential of this case to have a wider impact, it’s important to note that while removing criminal penalties is a good thing, this alone won’t fully protect the health of people who use drugs because it doesn’t address the adulterated supply. And Flewelling’s ruling was based on the fact that the defendant struggled with addiction—making clear that she wouldn’t apply it to what she termed more “morally culpable” sellers.
“What I don’t like about the ruling is that it shifts the focus from street-level dealing to folks that are higher in the supply chain.”
“This case demonstrates they’re saying, ‘we understand why you might be selling fentanyl, it’s actually people higher up in the supply chain that are the problem’,” Eris Nyx, co-founder of Drug User Liberation Front (DULF) told Filter. “My perspective is, it’s the whole prohibitionist regime that’s the problem–stop criminalizing, stop medicalizing the use of drugs.”
DULF and Vancouver Area Network of Drug Users (VANDU) have drawn attention to BC’s toxic drug supply by handing out illegal drugs for free. They bought the drugs in bulk, tested them for adulterants, packaged and labeled them, then gave them away in downtown Vancouver. They are now seeking the federal government’s approval to allow them to continue this on a more formal basis, distributing checked drugs through “compassion clubs.”
“People need to get their drugs somewhere; if you’re punishing anyone in the supply chain it causes a more volatile supply chain,” Nyx said. “What I don’t like about the ruling is that it shifts the focus from street-level dealing to folks that are higher in the supply chain.”
Flewelling’s ruling—and the decriminalization policies seen in Canada and the US—contain an inherent contradiction. We can choose not to lock people up for using drugs, but if we still leave them no option but to obtain unregulated drugs from people who are criminalized (and therefore, incentivized to market more potent substances), both deaths and incarceration will continue. The proliferation of accessible safe supply programs and, ultimately, the legal regulation of drugs would address this.