Fentanyl, a synthetic opioid, is described by the Canadian Supreme Court as being “80-100 times more potent than morphine and 25-50 times more potent than pharmaceutical grade heroin” (para 94). This potency, combined with the fact that the drug is both odourless and colourless, makes the risk of (accidental) overdoses extremely high. Indeed, given its strength, a lethal dose can be as small as a mere 2 milligrams – this is an amount that is about the size of a single grain of ordinary table salt (para 24). In the effort likely to increase profitability, traffickers mix in small quantities of fentanyl into other substances (such as cocaine) to create a more cost-effective product. This duplicity, however, means that some opioid-users are unaware that they are even consuming fentanyl because the euphoria-like effects it creates are indistinguishable from other opioids.

Canadian statistics on opioid-related drug overdoses confirm the very serious social costs of fentanyl. Indeed, Health Canada reports that “[o]f all accidental apparent opioid toxicity deaths in 2023, 82% involved fentanyl.” Understanding this, courts across Canada have sought to deter fentanyl trafficking through the issuance of steep sentences for offences involving the possession of even small quantities of the drug. While Canadian judges are tasked with considering a number of contextual factors in the crafting of sentences, including the need to delicately balance the gravity of the offence committed with the moral blameworthiness of the offender, judges often stress the principles of deterrence and denunciation when sentencing individuals convicted of trafficking drugs. In the words of the British Columbia Court of Appeal: “ [G]eneral deterrence and denunciation are the main principles to consider when sentencing drug traffickers. While no one principle “trumps” the other, there are offences and circumstances where one or more principles come to the forefront and generally will be given more weight than others” (para 18).

Armed with the principles of deterrence and denunciation in one hand, and their knowledge of the opioid-related public health crisis in the other, Canadian courts have now come to view fentanyl as a more serious threat than both cocaine and heroin. In a 2017 decision, for example, the Alberta Provincial Court wrote:

Trafficking in fentanyl is almost the equivalent of putting multiple bullets in the chambers of a revolver and playing Russian roulette. It is the most efficient killer of drug users on the market today. Its danger to users is greater than cocaine and heroin. The courts have historically treated sentencing in relation to illicit substances as an analysis of a continuum of dangerousness; the more dangerous or harmful the substance, the higher the sentence that could be expected to be imposed. Case in point, the law has long held that heroin was more dangerous than cocaine and merited a higher starting point. More and more cases are coming in relation to fentanyl sentencing and […] have determined that fentanyl is even more dangerous than heroin and accordingly the starting point might be higher than the starting point for heroin (para 11).

In a 2020 decision, similarly, the Nova Scotia Court of Appeal noted that, given the lethality of fentanyl, “it stands to reason that convictions for offences involving fentanyl should draw a more severe sentence than one which ‘only’ involved cocaine or heroin” (para 94). In a 2024 decision, the Ontario Superior Court wrote that “[a]s it relate to a finding of guilt in relation to possession for the purposes of trafficking in fentanyl the jurisprudence has evolved and makes clear now that those convicted of trafficking in fentanyl will face a significant penitentiary sentence and that denunciation and deterrence are of fundamental importance” (para 19). Justice Moldaver, of the Canadian Supreme Court, described fentanyl trafficking as “a crime marked by greed and the pursuit of profit at the expense of violence, death, and the perpetuation of a public health crisis previously unseen in Canadian society” (para 98).

While I do not deny the very real harm and trauma experienced by Canadians whose lives have been touched by fentanyl, I do wonder if the judicial logic regarding steeper sentences for fentanyl-related offences will achieve its desired ends and successfully deter traffickers. Superficially, we can recognize that the logic used here is simple and reasonable. As Canadian Criminologists Cheryl Webster and Anthony Doob argue in their 2012 chapter, “Searching for Sasquatch,” in the Oxford Handbook of Sentencing and Corrections (published with Oxford University Press), a person should avoid engaging in behaviours/actions if they know that doing so will be met with harsh and unpleasant consequences (p.180). Decades of social scientific research, however, have collectively revealed that harsher sentences do not convincingly result in the deterrence of crime (Webster and Doob, p.175-6). And if this is the case, why would steeper sentences standing to have an impact on fentanyl trafficking (in particular) versus any other criminal offence?

Thus, if social science compels us to – at least – be skeptical of a harsh sentence’s capacity to deter crime, perhaps the questions we ought to be asking should focus less on deterrence and more on the consequences of the imposition of lengthy prison sentence? Many low-level traffickers (“street dealers”), for example, do so to support their own drug addictions, which often are coupled with various mental health conditions. And, as detailed throughout the 2022-2023 Annual Report of the Office of the Correctional Investigator, Canadian prisons are neither sufficiently equipped nor funded to appropriately address what are – essentially – public health issues. Further, given that time in prison is (literally) the segregation of individuals from society, individuals are also prevented from accessing various social and community supports and resources. This segregation is, at least, one factor explaining why 44.6% of prisoners are either homeless or at risk of homelessness upon their release, according to the Canadian Observatory on Homelessness. To this end, individuals stand to become re-exposed to the sorts of contexts and situations which lead to further engagement with the criminal justice system. Is it not fair to wonder, therefore, whether our criminal justice system, rather than kicking the metaphorical can of drug trafficking down the road is, instead, simply kicking it in circles?