A Red Deer lawyer is heading to the Supreme Court of Canada to argue a case involving minimum prison sentences for fentanyl trafficking.
The high court has agreed to jointly hear the appeals of two men who received stiffer penalties when Alberta’s Court of Appeal ruled that convictions for wholesale fentanyl trafficking should carry a minimum sentence of nine years.
Andrew Phypers and Calgary lawyer Jared Craig represent Patrick Douglas Felix, who was sentenced to two concurrent 10-year terms.
The original sentencing judge gave him a seven-year sentence in March 2019 after Felix pleaded guilty to two counts of trafficking fentanyl and two counts of trafficking cocaine in Fort McMurray.
According to court records, Felix sold undercover RCMP officers nearly 2,400 fentanyl pills and 2.5 kilograms of cocaine worth about $173,000 in what was described as a “sophisticated fentanyl and cocaine trafficking operation.”
Felix told police undercover officers he was making $40,000 to $60,000 per month from the business.
In a separate case, Cameron O’Lynn Parranto was sentenced to two consecutive seven-year terms on counts of trafficking in fentanyl as a result of the minimum penalty.
Parranto was arrested in Edmonton in 2016 and police recovered fentanyl pills, cocaine, morphine, methamphetamine, oxycodone and a loaded handgun.
He is represented by Edmonton lawyer Paul Moreau.
Phypers is looking forward to a chance to argue his case in the highest court in the land. Only about six per cent of leaves to appeal — in which lawyers make their case why their issue should be addressed by the court — are granted.
“It’s an exciting opportunity, because very few lawyers get to attend to the Supreme Court of Canada,” said Phypers, who has practised law since 2012.
“It is also exciting because we’re challenging start-point sentence as a valid sentencing tool.”
While Phypers and Craig will focus specifically on fentanyl sentencing, if they prevail, it will have much wider implications.
“It will really be a challenge to start-point sentencing as an instrument to sentencing,” said Phypers.
There is no set starting point for sentences for most crimes. Drug crimes are among the exceptions.
For instance, the sentence starts at three years for someone convicted of commercial-scale cocaine or methamphetamine trafficking, increasing to four years for a wholesale trafficker.
If the drug is heroin, a commercial-scale trafficker’s sentence starts at five years.
Starting-point sentences are also in place for sexual assaults. Someone convicted of a “major sexual assault” faces a minimum of three years.
Among the problems with setting minimum sentencing points, is it they are not consistent across Canada, said Phypers.
“Alberta will sentence different than B.C. Alberta will sentence different than out east. It’s a very uneven application nationally of how people are sentenced in drug sentences.”
Alberta is on par with some provinces, but tougher than others.
“What we will argue is it should be an individualized process, best left behind in the hands of the sentencing judge,” he said.
“The sentencing judge is in the best position to see the personal circumstances of the offender and the gravity of the offence, instead of this uneven application based on the type of offence it is.”
Phypers said starting points have a “chilling effect” on a judge’s ability to impose what they see as a fit punishment.
In their leave to appeal, Phypers and Craig write that starting-point sentencing acts as both a “straight jacket” that limits individualized sentencing, and a “blunt instrument” used to justify longer prison sentences.
The starting-point system also “leads to increased rates of incarceration for marginalized socio-economic groups — those suffering from poverty, mental health issues and addiction.
“In certain cases, it perpetuates systematic discrimination.”
As usual, the Supreme Court gave no reason for agreeing to hear the matter.
The court will likely not hear Phypers’ and Craig’s case for six months to a year from now.