Given the intergenerational trauma experienced in many Indigenous communities, combined with the substantially fewer resources and supports available, it’s no wonder that the opioid crisis has been so devastating. It’s clear that any plan to deal with the crisis has to prioritize responding directly to their needs.
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CAN WE PROSECUTE OUR WAY OUT?
“It was a dark and stormy night,” began Oren Bick, senior counsel with the Public Prosecution Service of Canada. I couldn’t help laughing.
“It literally was,” said Bick, describing the evening of November 29, 2010.
It felt like old times back in law school when we’d talk about the latest criminal case. But this time around Bick was the lead prosecutor on the file. No more training wheels.
“There was snow falling and the police got a call from a tipster telling them that there was a suspicious hiker in the area. Now, these are hiking trails, but they’re effectively smuggling trails.”
“Do you know the Columbia Valley?”
I shook my head.
“There’s walls of mountains on both sides, on the east and on the west, and there’s farms all around,” he explained, painting a picture of the area south of Chilliwack, BC, some 100 kilometres east of Vancouver. The lush valley spans an uncontrolled section of the Canada–U.S. border. “Along the bottom of each side of the valley are trails that skirt through the woods, along the ridge line. And the police in that area know them well.”
Given the time of year, the horrible weather conditions, and history of these trails as cross-border drug-smuggling routes, the RCMP responded to the anonymous tip that night by deploying three officers—one to stake out each of the three trailheads into which the valley would funnel the mysterious hiker.
“In retrospect, that was a strategic error,” Bick went on. “It left each officer on his or her own. You know, on a very dark night, basically staking out these three trailheads.
“One officer parked his vehicle on the side of the road. He rolled down his window a crack and just waited. And nothing happened, sitting in his car for about an hour. All of a sudden—and this is a very remote area—another car pulls in right next to him with its headlights on.” Before the officer could do anything a man emerged from the trailhead, his body illuminated by the headlights. It was the hiker the police were waiting for. “He was probably, in retrospect, waiting there awhile and was just waiting for his ride to show up,” said Bick. It was a dangerous situation for the lone RCMP officer. Alone in the middle of nowhere and outnumbered with no backup, it must have felt like an ambush.
Brazenly, the hiker walked right through the path of the headlights and got into the waiting red Ford Taurus that had pulled up. “So the police officer jumps out and is able to freeze the situation. And, to his credit, he was able to actually arrest both people: the man who had just come out of the woods and the driver.”
The officer called for backup, and the two other RCMP officers staking out the other trailheads, five to ten minutes away, came racing to help.
“When the first police car comes, in its headlights they now see a backpack on the ground,” said Bick. “The backpack contained 2000 OxyContin pills—which turned out to be fentanyl—a kilogram or two of cocaine, and a small amount of marijuana.”
There wasn’t enough evidence to charge the driver, Leno Pedro, a one-legged Portuguese man who lived in East Vancouver. The hiker, Andrew Bainbridge, was charged with three counts of possession of illicit drugs for the purpose of trafficking. It was the first illicit fentanyl trafficking prosecution in BC, and is remarkable for having predated the opioid crisis declaration by more than five years.
The one-day trial took place on April 20, 2015. The key issue was whether Bick could prove beyond a reasonable doubt that the backpack of illegal drugs belonged to Bainbridge, whom the Crown alleged was a cross-border drug courier.
There was a problem, however. In the confusion of trying to arrest the two suspects, the RCMP officer who’d staked out the trailhead was unable to say whether he saw Bainbridge actually wearing or carrying the backpack.
“My argument was that, given the situation, the remote area, the only reasonable inference would have been that the backpack had been dropped by the hiker,” said Bick. Given the evidence, it was the best argument he could make. “The judge didn’t buy that, and he acquitted.”
Although Bick respected the judge’s verdict, I could tell that, to this day, a few things bothered him about the case.
“The fentanyl didn’t make sense to the drug expert,” he said. “He had no idea why anybody would be bringing in these fake Oxy pills from the U.S. to Canada, where there were real Oxy pills available in Canada. He thought it might be a price thing.
“Nobody knew really what fentanyl was, aside from some of the medical literature that was out there. Nobody from the police had seen it. The drug expert who was brought in to look at it had never seen it used as a street drug in that form at that time. Since then, about 2012, 2013, 2014, we saw a flood of it.”
The Bainbridge prosecution was indeed a harbinger of what was to come. But there was another twist in the case that would come back to haunt the authorities.
Back on that dark and stormy night in 2010, after the police had arrested Bainbridge the hiker and Pedro the driver, they released them both from police custody without any conditions. The RCMP put a tail on the two men—a covert team to follow each one. The plan was to further the investigation by seeing what they’d do next and who they’d meet with. After all, a goal in every drug trafficking case is to move up the chain as far as possible in order to identify and prosecute those with the greatest culpability.
Bainbridge, a thirtysomething Indigenous man, simply returned to his home in Richmond to be with his wife and two-year-old son. That police tail failed to generate anything of use. Pedro, however, left the police station and drove straight to the Knight & Day Restaurant on Loughheed Highway and Boundary Road in Vancouver. The all-day breakfast diner is located right beside the TransCanada Highway. It’s also 750 metres from the new Vancouver Police Department (VPD) building that was under construction at the time. Maybe he was just hungry after his late-night rendezvous and run-in with police?
Pedro made a call from a payphone at the restaurant. “It’s 2010, so there’s still payphones around,” Bick reminded me. Pedro then sat down in a booth at the diner. “Fifteen minutes later, who shows up but a guy named Walter McCormick, who was known to the police at that time,” said Bick. McCormick had three prior drug trafficking–related convictions, including one in Seattle, Washington, for conspiracy to distribute cocaine from Canada to the United States. McCormick had been sentenced to 10 years imprisonment in the U.S., but as a Canadian citizen he was allowed to transfer to Canada to serve his time. Our jails aren’t as harsh, and our parole is easier to get.
“They investigated a bit but they couldn’t really get anywhere,” explained Bick. “About five years later I would be prosecuting Walter McCormick in the biggest fentanyl bust the VPD ever did.”
* * *
——
It was October 2014, in the midst of a surge of illicit drug overdose deaths in BC. The VPD was investigating an individual they suspected of selling “bad heroin” (heroin laced with illicit fentanyl) in the Downtown Eastside.
Undercover officers quickly advanced their investigation to the point where they were able to buy 1000 fentanyl pills from a mid-level drug supplier (Raymon Ranu) on January 8, 2015, for $11,000. Unbeknownst to Ranu the bills were traceable, and the police had him under surveillance. They wanted to know who was supplying him with the illicit fentanyl that was killing a growing number of people. Both before and after the transaction, police observed Ranu meeting with none other than Walter McCormick. They’d need more evidence if they were going to nab him, though. Now McCormick was in their dragnet.
About a week late
r, McCormick supplied Ranu with another 1000 fentanyl pills that Ranu again sold to the undercover officer. Ten days after that, the same thing happened. On February 4, 2015, a fourth transaction for more illicit fentanyl was arranged, with Ranu again as the middleman between McCormick and the undercover officer—this time for 2000 fentanyl pills. Police believed they had McCormick.
On February 17, 2015, they arrested McCormick. He had two cell phones, $1205 in cash, and a key to a storage locker on him. Police searched his vehicle, home, and the storage locker. They unearthed a veritable treasure trove of illicit drugs and firearms:
• 27,000 fentanyl pills
• 4.054 kilograms of cocaine
• 1.016 kilograms of methamphetamine
• 374 grams of MDMA
• 5 grams of heroin
• 22.56 kilograms of cannabis
• 3 kilograms of cannabis resin
• 92,833 alprazolam pills (Xanax)
• $171,905 in cash
• 600,000 pills that weren’t controlled drugs under the Controlled Drugs and Substance Act
• 4.54 kilograms of cutting agents
• 44 kilograms of excipients and dyes (commonly used as fillers and dyes in pills and tablets)
• a Heckler & Koch USP .40-calibre pistol, with readily accessible ammunition
• a .22-calibre rifle
They’d nabbed a big fish: the street value of the illicit drugs seized was $2.03 million. It would have been an arduous process sifting through this mountain of evidence, but investigators were meticulous. They went through the seized cash and found that McCormick was in possession of a total of $17,200 in traceable bills with which the undercover police officer had paid Ranu for three of the four transactions. They had McCormick dead to rights.
McCormick was released on bail two days after his arrest and started living in a series of apartments and hotels. His relationship with his common-law partner, whom he’d been with for over a decade, ended.
“McCormick is an example of someone who is at the top of the chain, although I can’t prove to what extent he was involved in importing,” said Bick. “We do know that at the time he was caught he was distributing at a very high level, high volume.”
Just 15 months later, on May 18, 2016, while still on bail and awaiting trial, McCormick was at it again. After he refused to be evicted from the Sandman Hotel in Richmond, the hotel manager found evidence of illegal drugs and called the police. They located McCormick outside, hiding in a UPS truck. He was severely intoxicated with drugs and alcohol. They seized 1000 fentanyl pills, two kilograms of cocaine, 18.1 kilograms of marijuana, 4285 alprazolam pills, and $4736 cash from his vehicle, his hotel room, and the parking lot outside his room. McCormick was charged on June 24, 2016, and was detained pending trial.
He pleaded guilty to a range of trafficking charges. At the time of sentencing, he was 53 years old. The court heard that McCormick was born in Kelowna, BC; that his mother died when he was six and so he was raised by his father. He had a grade 12 education and had been employed as an iron worker for about 22 years. His lawyer said he had problems with drugs and alcohol. He’d had a tough life.
The maximum penalty for trafficking in drugs like heroin, cocaine, and fentanyl is life imprisonment, but it’s rare to see sentences beyond 10 years in Canada, except for importation and large-scale criminal conspiracies. Bick called for McCormick to be given 18 years’ imprisonment—an “exemplary sentence for an exemplary case” to recognize the harm that fentanyl was causing in the community. Defence counsel asked for a prison sentence of eight to nine years.
“Mr. McCormick was the supplier to a mid-level drug trafficker. He was three levels removed from the level of a street trafficker,” said Judge Bonnie Craig of the BC Provincial Court on January 30, 2017, in sentencing him. “Mr. McCormick was the principal actor; he was not acting as a courier or a middle-man. He controlled his operation.
“I recognize that a sentence above any established range will not lead to an end to the fentanyl epidemic,” Judge Craig went on. “The lure of substantial profit for lower risk, with the awareness of the very real and substantial risk to life that comes from trafficking in fentanyl must be counteracted with the threat of a significant jail sentence on conviction.”
Judge Craig sentenced McCormick to 14 years’ imprisonment.
It’s not just high-level fentanyl traffickers like Walter McCormick who are receiving stiff sentences by the courts. Street-level distributors who sell to end users are also being hit. That includes dealers who walk around or use bikes to sell drugs in particularly concentrated geographic areas. Others run dial-a-dope operations that take orders by cell phone and deliver illicit drugs to the purchaser’s home or another provided address. “Crack shacks” are fixed locations where drugs can be purchased, but are less common since they’re easier for police to locate and shut down.
In R. v. Smith, the BC Court of Appeal held in a landmark 2017 decision that street-level dealers convicted of fentanyl trafficking should receive more stringent sentences too, typically within the range of 18 to 36 months’ imprisonment. This is at least triple the starting point for street-level heroin trafficking, which is six months in jail.
“As matters stand today, other dangerous drugs do not kill as frequently, accidentally, or as unpredictably as fentanyl, but the risks posed by those drugs should not be minimized even by comparison with fentanyl,” said Justice David Harris in a majority decision of the BC Court of Appeal. “Recognizing a different and markedly higher sentencing range for street-level dealing in fentanyl turns on the enhanced risks associated with that activity and the individual responsibility of dealers given those risks and public knowledge of them.”
But who are these street-level fentanyl dealers, and is there any evidence that stiffer sentences will deter them?
* * *
——
Just off Hastings and Main in Vancouver’s Downtown Eastside is the Hotel Maple, a narrow, eight-storey brick building that’s been converted to an 81-unit social housing complex run by PHS Community Services Society. And the alleyway behind the Hotel Maple, like many others in the area, is where illicit drugs are bought and sold.
“One of our staff, a peer employee, got called out to the alley to help an overdose,” said Jennifer Breakspear, executive director of PHS. When the staff member came outside they saw an individual lying on the ground while someone else was doing rescue breathing, trying to revive them.
“I just sold this to her,” said the man doing the rescue breathing. “Did I kill her?”
“He had sold the person the drugs and was helping her inject,” said Breakspear. “He was really upset. He was doing what he needed to do. He’s not a bad guy. He’s caught up in it as much as the person who used it.”
The street-level dealer had stayed to try to save his customer’s life despite the legal risk he was putting himself in. He could have been criminally charged with trafficking or worse if the person had died. Breakspear’s story broke the stereotypical mould in my mind about what these dealers were: heartless individuals whose only motivation in life was money.
“I think we need to treat the street-level folks with as much compassion as we’re treating the folks that are buying from them. They don’t have an option. Life has led them to a point where their options are so limited, and we’re seeing this,” said Breakspear.
Many people I spoke with—including criminal defence lawyers, criminologists, healthcare professionals, and people who use drugs—argued that the weight of enforcement against fentanyl traffickers has largely fallen on street-level dealers who are often dealing to support their own addiction, and that big prosecutions like the McCormick case are actually few and far between.
“It would be nice if they actually got somebody who really fit trafficking,” said Mark Gervin, a criminal defence lawyer and direc
tor of legal services with UBC’s Indigenous Community Legal Clinic. “I mean at best, in a great year, they get a small amount of mid-level people who aren’t dealing for drugs. They’re having zero effect on anything. Most of what we see—the trafficking or the possession for the purpose of trafficking in the Downtown Eastside—those people are told, ‘You go and sell 10 whatever, come back, and we’ll give you some heroin or fentanyl.’ ”
I wanted to know whether there was any hard data to confirm or deny these claims, either in reported court cases or in police files. Haley Hrymak is a criminal lawyer who took a leave of absence from her job to pursue her Master of Laws through researching the opioid crisis at UBC, which is where I met her. Hrymak dug into all the reported sentencing decisions for street-level fentanyl traffickers in BC between January 1, 2016, and November 1, 2017, to learn more about these individuals and how the courts are dealing with them. She found that of the 14 street-level fentanyl traffickers sentenced during this period, only two weren’t current or former drug users.
“Addiction motivated nearly all the individuals who were engaging in street-level trafficking,” writes Hrymak. “Addiction is a disease that involves engaging in drug use on an ongoing basis despite risk of harm or negative consequences associated with these behaviours. Research shows that the threat of an increased jail term does not dissolve an addiction.”
I also wanted to ask the Vancouver Police Department about these claims, but before I did, I tracked down a copy of the VPD’s Drug Policy statement. It reads, in part: “Within the context of enforcement, street-level drug trafficking remains a priority. This includes the ‘addicted trafficker’ as well as the ‘non-addicted trafficker.’ The VPD will not distinguish between the two; however, enforcement will be directed more at traffickers who exhibit a higher degree of organization and coordination.”
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