How strict should fentanyl penalties be? Case of prison possession causes courtroom debate

Possession of cocaine in prison could net you a slap on the wrist — but how much worse should the punishment be for fentanyl?

A Newfoundland and Labrador provincial court judge will make that decision on Dec. 6, in the case of a St. John's man caught with a package of fentanyl-laced heroin while inside Her Majesty's Penitentiary.

The Crown is seeking a 12-18 month sentence for Justin Hopkins on a charge of simple possession, something defence lawyer Erin Breen thinks is absurd.

"How greatly can you escalate the sentence because fentanyl is in the mix?" she asked Judge James Walsh on Thursday, during her sentencing submissions.

We often use the phrase simple possession. But this is not simple. This is fentanyl.- Crown prosecutor Elaine Reid

Breen said a charge of possessing a Schedule I drug — cocaine, heroin and other dangerous substances — usually carries a sentence somewhere between a conditional discharge and six months in jail. She believes Hopkins's punishment shouldn't fall outside the range.

While she recognized the fatal tendencies of fentanyl in her submissions, she said the principle behind the charge is still the same.

"You are sentencing a drug addict for possession," she told Judge James Walsh.

Who is Justin Hopkins?

The 35-year-old Hopkins has a long history before the courts and is currently serving a 6.5-year sentence for drug trafficking.

He was arrested on April 29, 2017, as the first high-profile bust by local police after fentanyl landed in Newfoundland and Labrador, causing an outbreak of 15 suspected overdoses in two weeks.

Hopkins was charged, along with another man, for selling fentanyl out of a quaint rental house in the city's east end. Officers dressed in hazmat suits raided the home, situated across from a playground and a daycare.

Hopkins was released on bail, but was arrested again days later and found with as much as $30,000 of drugs stuffed inside his body.

He was sent to hospital, so medical professionals could observe him passing the drugs in an environment safe for everyone around him.

Hopkins was eventually found not guilty of trafficking out of his house, but was convicted on separate trafficking charges for the drugs hidden inside himself.

With time served, he's got about four years left behind bars for those charges.

'This is not simple'

While in jail, a prison guard found Hopkins acting suspiciously near his cell's window while she was collecting meal trays. When she entered the cell, she found the finger of a latex glove packed with powder.

After she took it from his hands, he reached out and tried to snatch it from her.

Crown prosecutor Elaine Reid said the judge should consider the volatility of fentanyl and what could have happened if the guard ingested any of the powder when he tried to knock it from her hands.

In that sense, fentanyl should be considered far more dangerous and come with stricter punishments, she said.

The opioid is up to 100 times more powerful than heroin and can cause overdoses from just coming into contact with it.

The mix found in Hopkins's cell contained 6.8 per cent fentanyl — an amount capable of killing someone without a tolerance to opioids, Reid said.

"We often use the phrase simple possession," she said. "But this is not simple. This is fentanyl."

Judge has prior experience in fentanyl decisions

Both lawyers said they couldn't find any written decisions on fentanyl possession inside a prison to base their sentencing recommendations on. Reid suggested this could be the first in Canada.

Judge Walsh said sentences for fentanyl trafficking are more common, and vary greatly around the country.

In British Columbia, the epicentre of the fentanyl crisis, Walsh said a trafficking sentence can range from 18 to 36 months. In Alberta and Ontario, it can range up to eight years.

Walsh recently handed down sentences between four and 5.5 years in the case of four people convicted of holding up a pharmacy on New Year's Eve last year. Fentanyl patches were among the items stolen.

He will render his sentencing decision for Hopkins on Dec. 6.

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