“I haven’t seen a lot of charges publicly for non-street-level traffickers, people who are mid or higher up in the chain. Is that a fair perception?” I asked.
“That’s a fair perception,” said Deputy Chief Constable Laurence Rankin with the VPD. “We’ve had some success with the drug forces operation over the last year, where we’ve identified and been able to target and successfully charge individuals that are trafficking in firearms and fentanyl, but again, I think it’s lost in just the everyday.”
I asked Rankin for statistics on trafficking prosecutions over the last few years to get a better idea of what’s happening on the front lines of policing during the opioid crisis in Vancouver. It took organized crime analysts about a month to crunch the numbers.
Between 2015 and 2017, the VPD filed a total of 899 illicit drug trafficking charges (which includes trafficking and possession for the purposes of trafficking). By May 2018, these charges had resulted in a total of 160 convictions, representing 17.8% of charges.
“Yeah, that’s a low conviction rate,” said Inspector Bill Spearn with the VPD. “A lot of those charges would be recommended; some of them may go through to conviction; they may not get charge approval; the charges may get stayed. A lot of these people would go through diversion in the drug courts and plead to possession in order to get into the drug courts and go into that program, even though we recommended possession for the purposes of trafficking or trafficking. Because they pled to possession, they wouldn’t show up in here as a conviction.”
How many of these charges involved mid- to high-level traffickers versus street-level dealers? It turned out that it isn’t possible to know for sure without the VPD doing a time-consuming case-by-case review. But it was possible to get a rough idea by breaking it down into those cases dealt with by ordinary patrol units (which typically deal with street-level dealers) versus the VPD Organized Crime Section, which runs projects targeting major trafficking operations.
Only 31 out of 899 (3.4%) of drug trafficking charges in Vancouver between 2015 and 2017 were mid/high-level traffickers targeted by the VPD Organized Crime Section. As of May 2018, only six of these individuals had been convicted (from one project in 2015).
“The complexity of those files is much greater,” said Inspector Spearn. “Just about all of them are still in the court system. It’s just a slow process, as you know, to get them through the court system.”
So the data seemed to back up what I’d been hearing from critics: it’s the street-level dealers who are overwhelmingly the ones being charged. Since drug trafficking is hierarchical, there are a lot more people at the bottom, and these individuals are also the most visible and easiest to catch. It’s the charging and conviction of mid- to high-level fentanyl traffickers that are the exception. A similar phenomenon exists in the United States, which has the highest per capita rates of incarceration of anywhere in the world.
“Well, in the United States the problem is that we seem to be incredibly successful at arresting and incarcerating people who are at the retail end and not the wholesale or the manufacturing end,” said Dr. Richard Frank. “And here that causes as many problems as it solves. You now have a group of people who, if they weren’t hard-core criminals at the beginning—they’re just selling drugs—they go to prison and sharpen their trade there. They’re often traumatized there, and then in the U.S. your chances of being employed are dramatically reduced on the way out, and your chances of having other kinds of problems are increased as well. So obviously the net effect is not all that positive.”
Indeed, as then Chief Justice Antonio Lamer of the Supreme Court of Canada recognized in a 2000 judgment, “Prison has been characterized by some as a finishing school for criminals and as ill-preparing them for reintegration into society.”
“One of the reasons we see so many street-level traffickers being prosecuted is because the number of man hours it takes the police end to do that is so much less,” said Oren Bick. “It’s exponentially less than the amount of man hours it will take to successfully investigate a higher-level trafficker who is not putting himself out there on the street every day—not exposing himself.
“Sometimes it’s easier to achieve mandates by focusing on the low-hanging fruit,” Bick continued. “They have a number of goals, annual performance reviews, just like the rest of us do, and they want to be seen as doing something. And to the extent that they’re taking the lower-level trafficker off the street, that’s still a good result—and it’s a lot easier in terms of man hours than addressing someone who is higher up on the chain.
“If the police do get more resources to focus more time on higher-level cases, that would be good. The problem is that you don’t always see the results. If a unit that investigates high-level drug traffickers closes only four or five files a year, then the results might not be enough to justify the money in the view of the people who allocate that kind of money.”
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I wanted to understand whether there were any unique challenges in prosecuting fentanyl trafficking cases, so I asked Bick.
“From a prosecution point of view, prosecuting fentanyl cases is the same as prosecuting any other drug case,” he told me. “You have to prove the possession, the control, the knowledge. That sort of thing.
“There’s unique challenges from the police point of view. The police have a lot of pressures on them that contradict each other. They’ve got a lot of pressure on them not to let fentanyl hit the streets. They don’t want to be accused of jeopardizing lives in an effort to further their investigation, which differs from the attitude that police have had traditionally for other drugs.
“I’ve seen [cocaine] cases, I’ve prosecuted them, where police sit and watch and watch and watch and wait, and more cocaine is being delivered and being delivered and being delivered, and the police are gathering evidence as they’re watching where every delivery goes, and that sort of thing. It ends up being a solid case to prosecute because the police have seen the same thing happen three or four times, and so there’s a strong case against the person who does it.
“With fentanyl, there’s counter-pressure to end investigations early in order to avoid fentanyl hitting the streets, which makes for a less compelling prosecution, or a prosecution of the arguably less culpable person in the organization.
“There’s always a point in the police investigation where they need to decide when they’re pulling the trigger. Do they wait for another few packages to go by in order to make their grounds to search the destination of the package stronger, or do they conduct more surveillance to see who is receiving the packages?”
Bick’s explanation was compelling. It offered another reason why we see so few kingpins being prosecuted for fentanyl trafficking, something that one of my RCMP sources confirmed.
Fentanyl really has been a game changer for law enforcement. Given its toxicity, the police can’t let an illicit pipeline like that continue to flow while they work their way up the trafficking food chain—which is why many investigations never get much further than a street-level dealer. And there’s always someone willing to take their place once they’re arrested.
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On the surface, there was nothing all that special about Barrett Richard Jordan’s case. But today every judge, Crown prosecutor, and criminal defence lawyer in the country knows his name.
Jordan was arrested in December 2008 and eventually charged along with 10 others for his role in running a dial-a-dope operation in the BC Lower Mainland. The Crown prosecutor had to ask for more time to present the “mountain of evidence” against him at the preliminary inquiry before his trial.
Jordan was convicted in February 2013 but appealed his case all the way up to the Supreme Court of Canada. He wasn’t arguing that he was innocent. Instead, his lawyers argued his “right to be tried within a reasonable time” under the Cana
dian Charter of Rights and Freedoms was violated because of excessive delay. It had taken just over four years (49.5 months) from the time he was charged to the end of his trial. Although accused people are presumed innocent, many languish for long periods of time in pre-trial detention. In some provinces, there are more people in custody awaiting trial than have actually been convicted. And drawn-out prosecutions can also be harmful to victims.
While the trial judge and BC Court of Appeal rejected Jordan’s Charter claim, the Supreme Court allowed his appeal in July 2016. It overturned his drug trafficking convictions and entered a stay of proceedings. Jordan was a free man.
“As we have observed, a culture of complacency towards delay has emerged in the criminal justice system,” said Justices Moldaver, Karakatsanis, and Brown for the majority. “Unnecessary procedures and adjournments, inefficient practices, and inadequate institutional resources are accepted as the norm and give rise to ever-increasing delay. This culture of delay ‘causes great harm to public confidence in the justice system.’ It ‘rewards the wrong behaviour, frustrates the well-intentioned, makes frequent users of the system cynical and disillusioned, and frustrates the rehabilitative goals of the system.’ ”
These judges set a general deadline of 18 months for cases in provincial court and 30 months for cases in superior court (which hears only some serious charges). If it takes longer than that from the charge date to the end of trial, it’s presumed that the rights of the accused have been violated. There are some exceptions for defence delays and exceptional circumstances, but R. v. Jordan sets a “best before” date after which prosecutions are at risk of being turfed out, no matter how grave the case. Murder, sexual offences against kids, drug trafficking cases—such charges have since been tossed out because of Jordan.
“Jordan has really, really slowed us down as to how we can respond. It’s really put a strain on our resources. It’s probably the biggest change in policing I’ve ever seen in my career,” said Inspector Spearn. “Let’s say we arrest somebody for drug trafficking. We can’t even lay a charge until we get all the drugs analyzed, you know, get full disclosure up front, because if we lay a charge, then our Jordan clock starts ticking and we can run into a lot of issues.
“If we arrest a fentanyl dealer, we can’t even hold them in custody. So we release them so that we can do all our disclosure—and they just go back out on the street and sell more drugs and kill more people.”
Inspector Spearn’s concerns aren’t merely theoretical. An alleged fentanyl dealer in Ontario recently had his charges stayed because of the Jordan decision. He walked out of the courtroom a free man, without any trial.
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Even if police and prosecutors are able to navigate all the pitfalls and perils of prosecuting a fentanyl trafficker, will stiff jail terms have any impact in stemming the opioid crisis?
“If you were to scoop up 100% of them today, that would be filled with another group of people,” said Mark Gervin, explaining that every time a fentanyl dealer is arrested, another is easily recruited to take their place. “I mean it’s all about the demand.
“They’re not reading newspapers. They’re not reading case law. They’re not talking to people who are doing the sentences. So they have no idea what’s going on. I would talk to the first-timers and they’d say, ‘Well, I was just told that we’d get six months’ probation.’ So they’re being lied to. They’re in for a shock.”
Although the police officers I interviewed all conceded that trying to crack down on the supply of illicit opioids isn’t going to solve the crisis, they argued that there’s a need to pursue those who are trafficking illicit fentanyl.
“I can tell you that I have spoken to drug dealers who won’t deal fentanyl because they don’t want to go to jail for eight years or ten years, where they used to be worried about going to jail for six months or a year,” said Staff Sergeant Conor King with the Victoria Police Department. “They won’t deal fentanyl anymore. Is it working every time? I guess probably not. Is it working sometimes? Yes, it is. It’s the structure we’ve got right now and nothing else.”
But other police officers seemed less optimistic about the impact of prosecuting traffickers.
“You feel like the little Dutch boy putting your finger in a dike, but at the same time we have enough information to move on any number of files,” said Deputy Chief Constable Laurence Rankin. “At the end of the day, we’re taking individuals off the street that are extremely violent, that are engaged in extremely violent behaviour and happen to be dealing fentanyl.”
“We’ve had some good successes in the last year and a half, hitting traffickers that are specifically targeting the high-risk areas,” said Dwayne McDonald, Assistant Commissioner and officer in charge of the Surrey RCMP detachment. “But, like anything, as soon as you take one out, there’s a vacuum and it’s filled almost instantly by somebody else.”
Both Rankin and McDonald seemed to be conceding that we should have little expectation of prosecuting our way out of the opioid crisis.
“You’ve probably talked to people who do doubt it, that higher sentences deter. I think where people get a bit sidetracked is that they don’t deter everyone,” said Bick. “If somebody is saying that high sentences universally deter, then that’s wrong. There will always be someone who is willing to take up the mantle no matter how high the potential sentence is, but generally deterrence can also be seen as at least deterring some segment of the population from engaging in this type of activity.”
Bick’s comments gave me pause, reminding me that there’s a ton of research on whether stiffer penalties actually deter crime or not.
“Research shows clearly that the chance of being caught is a vastly more effective deterrent than even draconian punishment,” concluded the U.S. National Institute of Justice (NIJ) in a summary of the available criminology research. “Laws and policies designed to deter crime by focusing mainly on increasing the severity of punishment are ineffective partly because criminals know little about the sanctions for specific crimes. More severe punishments do not ‘chasten’ individuals convicted of crimes, and prisons may exacerbate recidivism (re-offending).”
“Effective policing that leads to swift and certain (but not necessarily severe) sanctions is a better deterrent than the threat of incarceration,” found the NIJ. Interestingly, legal sanctions also have less of a deterrent effect on serious offences (including “hard-drug” trafficking) than on minor, non-violent crimes.
Despite this evidence, President Donald Trump has gone so far as to propose that fentanyl traffickers be subject to the death penalty. It turns out that there is no proof that even the death penalty deters criminals.
What’s generally needed to deter people from engaging in criminal behaviour is a greater certainty of being caught and then swiftly punished. On both of those counts, the current situation with fentanyl trafficking falls hopelessly short. The probability of a fentanyl manufacturer, importer, or high-level trafficker being arrested is incredibly low, and there are big delays in meting out punishment. And if we’re talking about a street-level addicted fentanyl dealer, the threat of criminal sanctions is even less likely to deter them.
“We’re not arresting our way out of this one,” conceded Deputy Chief Serr. “I’ve been around the world of drug enforcement for a long time. We have never, to date, ever stopped a drug trend, whether it be crack cocaine, cocaine, heroin, or methamphetamine. Every one of those drugs is still readily available.
“We’ve done a large seizure, which is fantastic and what we need to do, but all we’ve done is, for a short period of time, change the market of that drug. The price may have gone up and it may be a little harder to find, but we’ve never eradicated a drug.”
But even that temporary effect has been questioned. Street-level data after major drug busts challenges the idea that enforcement efforts actually have a
ny noticeable impact on drug prices and availability.
“Our data suggest that drug prices on the city’s streets have been unaffected by law enforcement efforts,” found a report by the BC Centre for Excellence in HIV/AIDS. “Specifically, annual street-level data suggest the price of heroin, cocaine, crack cocaine and crystal methamphetamine have remained low and stable, placing doubt on assertions by the Royal Canadian Mounted Police that interdiction efforts have had an impact on the availability of illicit drugs at the street level.”
I also heard a concern that I hadn’t anticipated—one that was raised separately by two different groups representing people who use drugs.
“We’ve heard tons of complaints about police just taking drug dealers’ drugs and money. Basically, just letting them go,” said Westfall. “When the cops do that it just makes the drug market more dangerous for people, because now they can’t go to their guy. They have to go somewhere else, and they have to find out if their drugs are safe or not. Sometimes they’re not.”
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When I met with Staff Sergeant King in his Victoria office, I couldn’t help noticing the large “targeting” chart on his wall. It looked like a scene from the HBO television series The Wire. The chart showed known and suspected drug traffickers, with lines connecting them to each other. There were, of course, several “Mr. X” figures with no names or no photos—people whom the police had yet to identify but knew were players in the importation and trafficking network.
“The goal is to investigate them, get their evidence, get charges on them, and get convictions,” said King, who was sporting a goatee and wore a pressed business shirt with a police-issue semi-automatic black matte Glock handgun holstered on his leather belt.
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