 |
| John L. Hill |
This shift began with Ole Ingstrup, a Danish criminologist and public servant who twice served as commissioner of the Correctional Service of Canada (1988-1993, 1997-2003). Drawing on Scandinavian correctional principles, Ingstrup introduced ideas such as normalization (making prison life resemble the outside world to prepare inmates for release), dynamic security (building humane, professional relationships between staff and inmates), and personal responsibility and motivation as tools for change.
Under his leadership, punishment and warehousing were replaced by rehabilitation-focused practices, marking a
mrhighsky: ISTOCKPHOTO.COM
The more traditional approach that our courts adopt emphasizes punishment for crimes through the application of sentencing principles that emphasize denunciation and deterrence. This approach is exemplified in the British Columbia Court of Appeal’s decision in R. v. Bird, 2025 BCCA 300.
In April 2019, police executed a search warrant at the Surrey, B.C., home of Kyle Robert Bird, who lived there with his young daughter. The search was prompted by a Crime Stoppers tip and surveillance indicating drug trafficking activity. Inside his bedroom, police discovered a large quantity of drugs — including 8.68 kilograms of MDMA packed for wholesale distribution and a locked safe containing 834 fentanyl pills (disguised as Percocet), 35.13 grams of MDMA, and small baggies consistent with street-level dealing. Additional drug paraphernalia (a scale, a kilo press, baggies and benzodiazepine bottles) were found in the kitchen, which Bird had access to.
The street value of the seized drugs was estimated to be between $163,000 and $249,000, representing several years’ supply for users. The trial judge found Bird wilfully blind to the dangerous nature of the fentanyl pills and convicted him in November 2023, with sentencing scheduled for November 2024.
At sentencing, five years after the crime, the court considered Bird’s mitigating personal background. Bird was 36 years old with no prior record. He was a victim of childhood sexual abuse. He faced learning difficulties and was diagnosed with ADHD. Despite this, he held employment as a welder and ironworker. He had a son and a teenage daughter in his care. He admitted to recreational drug use but was not considered addicted. His Jaguar vehicle was seized through civil forfeiture.
The sentencing judge decided that a conditional sentence order (CSO) was appropriate under s. 742.1 of the Criminal Code, noting that Bird serving his sentence in the community would not pose a danger to public safety, as he had lived incident-free in the community for the past five years since the offences. The CSO would last for two years less a day, including 18 months of house arrest with exceptions to attend work and a curfew from 6 p.m. to 6 a.m., followed by three years of probation.
The Appeal Court was concerned that the B.C. Coroners Service reported over 14,500 toxic-drug deaths in eight years, primarily caused by fentanyl, highlighting the public harm linked to Bird’s offences.
The appellate court determined that the original sentence given to Bird was clearly inappropriate, not only because of a specific legal mistake but also due to the scale and type of drugs involved, his mid-level role in the fentanyl distribution for profit, and limited mitigating circumstances. The court concluded that a non-penitentiary sentence, such as a conditional sentence order, was significantly disproportionate considering the seriousness of the offences and the high level of moral blameworthiness.
The court highlighted that in fentanyl cases, denunciation and general deterrence should be primary considerations in sentencing. It clarified that denunciation reflects society’s condemnation of such crimes, while general deterrence aims to discourage others from committing similar offences. Courts remain obligated to adhere to these principles, even if their effectiveness is subject to debate.
Sentencing ranges for fentanyl trafficking were reviewed. For street-level trafficking as established in R. v. Smith, 2017 BCCA 112, the range is 18 months to three years’ imprisonment or more, considering the lethal unpredictability of fentanyl and its public health risks.
For wholesale or high-level trafficking, the Supreme Court in R. v. Parranto, 2021 SCC 46 established a range of eight to 15 years of imprisonment for offenders in leadership roles, highlighting fentanyl’s extreme potency and societal devastation. For mid-level trafficking, characterized in R. v. McLean, 2022 MBCA 60, as the wholesale supply chain between traffickers, rather than direct sales to users, a sentence of three to 10 years is warranted (R. v. Campbell, 2021 BCSC 853).
The court concluded that sentences for fentanyl trafficking must “give tangible effect” to denunciation and deterrence by clearly reflecting the foreseeable and widespread harms caused by the drug. Bird was sentenced to five years (R. v. Bird, 2025 BCCA 300).
Given the high cost of keeping a person in a penitentiary, perhaps the courts should consider that when public safety is not at risk, punishment does not need to be the main concern.
John L. Hill practised and taught prison law until his retirement. He holds a JD from Queen’s and an LLM in constitutional law from Osgoode Hall. His most recent book, Acts of Darkness (Durvile & UpRoute Books), was released July 1. Hill is also the author of Pine Box Parole: Terry Fitzsimmons and the Quest to End Solitary Confinement (Durvile & UpRoute Books) and The Rest of the (True Crime) Story (AOS Publishing). Contact him at johnlornehill@hotmail.com.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of the author’s firm, its clients, Law360 Canada, LexisNexis Canada or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
Interested in writing for us? To learn more about how you can add your voice to Law360 Canada, contact Analysis Editor Peter Carter at peter.carter@lexisnexis.ca or call 647-776-6740.