The dangerous fentanyl drug problem: a mens rea issue

  • 24 mai 2018
  • Alan D. Gold, Laura J. Metcalfe, and Alex I. Palamarek

It is a basic principle of criminal law that there is no 'possession' without knowledge of both presence and nature of the thing possessed: Beaver v. The Queen, [1957] S.C.J. 32.

So where a drug dealer was proved to have sold a package containing heroin to an undercover agent, the Crown must also prove the accused knew its nature (or at least was willfully blind).

If the drug dealer claimed they were just delivering a package for a friend that they believed contained, say, milk chocolate candy, then an acquittal would follow so long as a reasonable doubt was left about their story.

This is simply an application of the fundamental principle of mens rea. That principle also had it that the mens rea and the actus reus had to relate to "the same offence." The accused had to have whatever mental state was required for criminal liability in respect of the conduct he engaged in that violated the criminal law.

But criminals, especially drug dealers, refusing to keep their crimes within the well-recognized, clearly delineated boundaries of criminality, soon had the courts struggling with variations on this theme: What if the accused had or sold heroin but claimed they thought it was something differently illegal, like animal parts such as rhino horn, or thought it was cannabis, a far less serious drug?

Courts seemed to say that if the accused's actual criminal mind was as serious or more serious than the actual criminal conduct, then a conviction for the actual criminal conduct charged could be entered even though technically the accused did not have the mens rea for that crime, because he had an equally bad or worse mens rea: R. v. Ladue, [1965] Y.J. 1, (1965) 45 C.R. 287 (Y.T. C.A.): accused charged with indecently interfering with a dead body contrary to s. 182(2) of the Criminal Code cannot argue he did not know she was dead because then he would  have been guilty of rape, or attempted rape, which was suggested as the proper charge. (The offence as written requires the accused interfere "improperly or indecently" but the case has been taken as standing for a wider principle than simply one based upon that wording.)

In the drug context, the response of the courts meant that it was necessary to say in the second sentence herein that "the accused knew its nature" and it would be incorrect to say "the accused knew it was heroin." Courts held that the mens rea of drug offences was not congruent with the particular drug alleged in the charge: see the vigorous dissent of Laskin C.J. in R. v. Kundeus [1976] 2 S.C.R. 272. The courts defined the actus reus of a drug offence as relating to the category of the drug, e.g., a narcotic, and accordingly the congruent mens rea was simply knowledge of a narcotic and not the specific narcotic alleged in the charge.

Accordingly, specific knowledge of the particular drug possessed or trafficked was not required for culpable mens rea.  In relation to importing cannabis in some scuba tanks, it was an error to tell the jury that, in order to reach a finding of guilt, they must find that he knew that the substance in the tank was cannabis resin. "It would be sufficient to find, in relation to a narcotic, mens rea in its widest sense," the appeal court said in R. v. Blondin, [1971] B.C.J. No. 656, [1971] 2 W.W.R. 1 (B.C.C.A.), aff'd. [1971] S.C.R. v.  See also R. v. Aiello (1978), 38 C.C.C. (2d) 485 (Ont. C.A.), aff'd (1979), 46 C.C.C. (2d) 128 (S.C.C.); R. v. Williams, [2009] O.J. No. 1692 at para. 19 (Ont.C.A.). See more recently R. v. Gill, [2017] O.J. No. 3258 at para. 21 (Ont.S.C.J.) and R. v. Johnson, [2017] O.J. No. 796 at para. 18 to 22 (Ont.S.C.J.).

When, under Canadian law, illegal drugs were split between the Narcotics Control Act (Can.) and The Food and Drugs Act (Can.), it was similarly held that a mistaken belief regarding which drug was being sold where the actual and the believed were both under the Food and Drugs Act did not prevent conviction:  Regina v. Custeau [1972] 2 O.R. 250 (C.A.) (accused sold L.S.D. but believed it was mescaline); R. v. Burgess, [1970] 2 O.R. 216 (C.A.) (accused possessed opium but thought it was hashish). See also R. v. Williams, [2009] O.J. No. 1692 at para. 19 (Ont.C.A.).

If the mens rea represented by the mistaken belief was of a less serious crime, then the accused could be convicted for the more serious crime charged but, it is submitted, the accused would be sentenced for the crime represented by his mistaken belief.  Accordingly, a seller of a narcotic who professed a belief they were selling a drug under The Food and Drugs Act with its lesser punishments for crimes involving less serious drugs than offences under the Narcotic Control Act, would be sentenced as if guilty of the less serious crime.

This issue will no longer arise now that all illegal drugs are subsumed under a single statute, the Controlled Drugs and Substances Act (Can.). Instead, these cases have resurfaced to be misunderstood and artificially create double criminality out of a single transaction.

Apparently, the dangerous drug fentanyl is appearing in the analyses of heroin and cocaine (and possibly other drugs) being seized by the police. Small quantities of fentanyl are being found mixed in with the main drug. It appears that the Crown is laying charges in relation to the fentanyl as well as the main drug, because fentanyl has come to be viewed as the most dangerous controlled drug. It arguably carries the most severe sentences, well above those for cocaine and even heroin.  See for example R. v. Smith, 2017 BCCA 112 where the C.A. overturned the sentencing judge’s finding that the 6 to 12 month sentencing range for street-level trafficking heroin applies to fentanyl. Relying on other authorities finding that absent exceptional circumstances “penitentiary time is called for in cases of fentanyl trafficking,” the Court of Appeal held the starting point for street level trafficking fentanyl is 18 months and could very well exceed 36 months.

If an accused knew his drugs contained fentanyl or was willfully blind, there is no problem convicting in respect of the two different drugs that the accused possessed.

The problem arises because some accused are claiming to have been unaware there was any fentanyl in their illicit product and, while willing to admit guilt for cocaine or heroin charges, are disputing guilt in respect of the fentanyl.

In R. v. Lemieux [2017] O.J. No. 5465, 2017 ONCJ 698 defence counsel conceded that his client is guilty of trafficking in heroin but disputed guilt for the fentanyl apparently also found within his drug product.

3     There was one substance that was purchased during each of the three transactions that were set up with Mr. Lemieux's assistance. The substance was tested and contained two different controlled substances: heroin and fentanyl. The Federal Crown urges the Court to find that Mr. Lemieux was wilfuly blind to the contents of the drugs that he was involved in selling and he should be convicted of trafficking in both controlled substances. Counsel for Mr. Lemieux submits that his client was not involved in the production of the drugs nor was he aware of the additives in the heroin and, as a result, he should only be found guilty of trafficking in drugs that he believed were heroin. Alternatively, he argues that there is no evidence of the quantity of the fentanyl in the substance or how it was tested so his client should be acquitted on the basis of a de minimus argument.

As the Judge in Lemieux put it:

"… [T]his Court is being asked to find that individuals who intentionally traffic in drugs that are mixed with fentanyl should be held accountable for trafficking in both substances."

The issue was put as follows:

"29     While there is no doubt that Mr. Lemieux intended to assist with the sale of heroin, the issue is whether or not there is any evidence that he intended to facilitate the sale of heroin with fentanyl in it and whether or not the Crown is obliged to prove that he knew or was wilfuly blind to the additional contents in the heroin to be found guilty of trafficking in fentanyl."

The Court then referred to the general principles referenced above that "… the Crown does not need to prove knowledge of the exact nature of the substance in question in order to secure a conviction for trafficking in a controlled substance. Rather, the Crown need only prove knowledge of the fact that the substance was a controlled substance."

The Court then asked:

"Does the principle enunciated in Kienapple apply when the Crown is seeking two convictions for separate counts for a single transaction of trafficking in a drug that had more than one substance in it?"

Reviewing the evidence and deciding that the accused was not proved to have known or been willfully blind to the presence of fentanyl, the Court applied the prohibition against double punishment in R. v. Kienapple (1975), 15 C.C.C. (2d) 524 (S.C.C.) to decide the issue by simply staying the fentanyl charges. The heroin charges were taken for Kienapple purposes to be the more serious since there was no quantitative analysis of the fentanyl.

However, the unknown presence of fentanyl would still resound to the detriment of the accused:

"Although the counts of trafficking in fentanyl are stayed, the Crown has proven an aggravating factor for the sentencing that the heroin also contained fentanyl. Mr. Lemieux chose to traffic in a particularly potent narcotic knowing that there was some risk that street drugs can be laced with fentanyl," the Court added.

A similar result obtained in R. v. Robinson [2018] O.J. No. 2577, 2018 ONCJ 322 where again the matter was viewed as a Kienapple issue.

In R. v. McIntyre [2017] N.J. No. 377 (P.C.) the matter was viewed as a matter of double jeopardy with the accused liable to be convicted of both charges in respect of the heroin and the fentanyl but the lack of knowledge of the fentanyl was used by the court to convict only of the heroin offence and stay the fentanyl charge.

It is disappointing that the appropriate authority was not taken to be Beaver v. The Queen rather than the cases dealing with the broader mens rea in drug offences. The only authority to make reference to Beaver v. The Queen was R. v. McIntyre, [2017] N.J. No. 377, and that for a different issue.

The drug mens rea cases that based mens rea upon the category of drug and not the specific drug charged were concerned with avoiding acquittals and ensuring criminal liability fastened upon an accused in a case with both an actus reus and a mens rea present, albeit not the mens rea limited to the specific drug in the charge.  The accused has awareness of the physical presence of the contraband and is simply wrong about the nature of its criminality. Those cases do not, where there is principled criminal liability in respect of the contraband, suggest the imposition of additional criminal liability notwithstanding the complete absence of knowledge of the presence of the particular additional drug.

These problematic fentanyl cases are cases where the rationale for that approach to mens rea in drug cases does not exist. The accused is already being convicted for their serious drug offence, and specifically their serious drug offence in respect of the principle drug possessed. Furthermore, there is no mens rea in relation to the fentanyl, neither intention nor willful blindness and the Beaver principle is the very strong and basic one that there is no subjective criminal liability in respect of something of which one is unaware.

To convict for the principal drug - cocaine or heroin - because of the presence of the requisite actus reus and mens rea and then to seek to convict for the fentanyl because of the presence of fentanyl coupled with the cocaine or heroin mens rea is to create a fictitious double criminality based upon apparent physical possession without any additional mens rea. To descend to the atomic level, ex hypothesi the accused was unaware the grains of fentanyl were present and accordingly had no mens rea, mistaken or otherwise in relation to those particles. 

If an accused traffics fentanyl, believing it is cocaine, those cases do apply to avoid an acquittal and ensure a conviction and a sentence appropriately measured for a cocaine offence. Where the accused in respect of the very same quantity of drug, is already being convicted and sentenced for that very cocaine offence, there is no justification in principle or logic for additional separate convictions in respect of the fentanyl. The Beaver principle should apply to preclude the additional criminal liability, especially given its apparent egregious seriousness.

A caveat: The police are apparently in the process of making this issue academic. As mentioned in Lemieux, notwithstanding that the Court found no willful blindness on Lemieux's part, it is mentioned that the undercover police officer purchaser did reference to Lemieux a concern about the drugs being spiked with fentanyl. If undercover agents mention this more frequently and more sonorously then willful blindness as to fentanyl will come to be easily found against the accused because drug dealers, being only human, will fall victim to the conversational phenomenon of gratuitous concurrence.

About the authors

Alan D. Gold, Laura J. Metcalfe, and Alex I. Palamarek are counsel at Alan D. Gold Professional Corporation.