Should fentanyl dealers face manslaughter charges for fatal overdoses?

Police are charging more drug dealers with manslaughter in fentanyl overdose deaths. But the shift is not satisfying everyone

Tyler Ginn prior to his death from a fentanyl overdose in 2021. [Photo credit: Gayle Fowlie]

By Alexandra Keeler | 5 minute read

Four years ago, Tyler Ginn died of a fentanyl overdose at the age of 18. Tyler’s father found his son unresponsive in the bedroom of their Brooklin, Ont., home.

For Tyler’s mother, Gayle Fowlie, the pain of his loss remains raw.

“He was my kid that rode his bike to the store to buy me a chocolate bar on my birthday, you know?” she told Canadian Affairs in an interview.

Police charged Jacob Norn, the drug dealer who sold Tyler his final, fatal dose, with manslaughter. More than three years after Tyler’s death, Norn was convicted and sentenced to six years in prison.

“I don’t think you can grasp how difficult going through a trial is,” Fowlie said. “On TV, it’s a less than an hour process. But the pain of it, and going over every detail and then going over every detail again … it provides details you wish you didn’t know.”

But Fowlie is glad Norn was convicted. If anything, she would have liked him to serve a longer sentence. Lawyers have told her Norn is likely to serve only two to four years of his sentence in prison.

“My son’s never coming back [and] his whole family has a life sentence of missing him the rest of our lives,” she said. “So do I think four years is fair? No.”

Norn’s case reflects a growing trend of drug dealers being charged with manslaughter when their drug sales lead to fatal overdoses.

But this shift has not satisfied everyone. Some would like to see drug dealers face harsher or different penalties.

“If we say that it was 50 per cent Tyler’s fault for buying it and 50 per cent Jacob’s fault for selling it … then I think he should have a half-a-life sentence,” said Fowlie.

Others say the legal system’s focus on prosecuting low-level drug dealers misses the broader issues at play.

“[Police] decided, in the Jacob Norn case, they were going to go one stage back,” said Peter Thorning, who was Norn’s defence lawyer.

“What about the person who gave Jacob that substance? What about the person who supplied the substance to [that person]? There was no investigation into where it came from and who was ultimately responsible for the death of that young man.”

Manslaughter charge

At least 50,000 Canadians have died from drug overdoses since 2016. Last year, an average of 21 individuals died each day, with fentanyl accounting for nearly 80 per cent of those deaths.

Fentanyl, a synthetic opioid, is up to 50 times stronger than heroin and 100 times stronger than morphine. A dose as small as a few grains of salt can be lethal.

Given its potency, police and prosecutors have increasingly turned to manslaughter charges when a dealer’s product results in a fatal overdose.

A recent study in the Canadian Journal of Law and Society found that the number of manslaughter charges laid for drug-related deaths in Canada surged from three cases in 2016 to 135 in 2021.

Individuals can be convicted of manslaughter for committing unlawful, reckless or negligent acts that result in death but where there was no intention to kill. Sentences can range from probation (in rare cases) to life.

Murder charges, by contrast, require an intent to kill or cause fatal harm. Drug dealers typically face manslaughter charges in overdose cases, as their intent is to distribute drugs, not to kill those who purchase them.

Joanne Bortoluss, a spokesperson for the Durham Regional Police, which charged Norn, said that each of their investigations follows the same fundamental process.

“Investigators consider the strength of the evidence, the dealer’s level of involvement, and applicable laws when determining whether to pursue charges like manslaughter,” she said.

The Canadian Journal of Law and Society study also found that prosecutions often target low-level dealers, many of whom are drug users themselves and have personal connections to the deceased.

Norn’s case fits this pattern. He struggled with substance abuse, including addiction to fentanyl, Xanax and Percocet. Tyler and Norn were friends, the judge said in the court ruling, although Fowlie disputes this claim.

“[Those words] are repulsive to me,” she said.

The Crown argued Norn demonstrated “a high degree of moral blameworthiness” by warning Ginn of the fentanyl’s potency while still selling it to him. In a call to Ginn, he warned him “not to do a lot of the stuff” because he “didn’t want to be responsible for anything that happened.”

Fowlie’s outrage over Norn’s lenient sentencing is compounded by the fact that Norn was found trafficking fentanyl again after her son’s death.

“So we’ve killed somebody, and we’re still … trafficking? We’re not worried who else we kill?” Fowlie said.

Trafficking

Some legal sources noted that manslaughter charges do not necessarily lead to harsh sentences or deterrence.

“If you look at how diverse and … lenient some sentences are for manslaughter, I don’t think it really pushes things in the direction that [victims’ families] want,” said Kevin Westell, a Vancouver-based trial lawyer and former chair of the Canadian Bar Association.

Westell noted that the term “manslaughter” is misleading. “Manslaughter is a brutal-sounding title, but it encapsulates a very broad span of criminal offences,” he said.

In Westell’s view, consistently charging dealers with drug trafficking could be more effective for deterring the practice.

“What really matters is how long the sentence is, and you’re better off saying, ‘We know fentanyl is dangerous, so we’re setting the sentence quite high,’ rather than making it harder to prove with a manslaughter charge,” he said.

Trafficking is a distinct charge from manslaughter that involves the distribution, sale or delivery of illicit drugs. The sentencing range for fentanyl trafficking is eight to 15 years, Kwame Bonsu, a media relations representative for the Department of Justice, told Canadian Affairs.

“Courts must impose sentences that are proportionate to the gravity of the offence and the degree of responsibility of the offender,” Bonsu said, referencing a 2021 Supreme Court of Canada decision. Bonsu noted that aggravating factors such as lack of remorse or trafficking large quantities can lead to harsher sentences.

‘Head of the snake’

Some legal experts noted the justice system often fails to target those higher up in the drug supply chain.

“We don’t know how many hands that drug goes through,” said Thorning, the defence lawyer.

“Are the police going to prosecute every single person who provides fentanyl to another person? Jacob [Norn] was himself an addict trafficker — what about the person who supplied the substance to him?”

Thorning also questioned whether government agencies bear some responsibility. “Is some government agency’s failure to investigate how that drug came into the country partly responsible for the young man’s death?”

Westell, who has served as both a Crown prosecutor and criminal defence lawyer, acknowledged the difficulty of targeting higher-level traffickers.

“Cutting off the head of the snake does not align very well with the limitations of the international borders,” he said.

“Yes, there are transnational justice measures, but a lot gets lost, and as soon as you cross an international border of any kind, it becomes incredibly difficult to follow the chain in a linear way.”

Bortoluss, of the Durham police, said even prosecuting what appear to be obvious fentanyl-related deaths — such as Tyler Ginn’s — can be challenging. Witnesses can be reluctant to cooperate, fearing legal consequences. It can also be difficult to identify the source of drugs, as “transactions often involve multiple intermediaries and anonymous online sales.”

Another challenge in deterring fentanyl trafficking is the strong financial incentives of the trade.

“Even if [Norn] serves two to four years for killing somebody, but he could make a hundred thousand off of selling drugs, is it worth it?” Fowlie said.

Thorning agreed that the profit incentive can be incredibly powerful, outweighing the risk of a potential sentence.

“The more risky you make the behaviour, the greater the profit for a person who’s willing to break our laws, and the profit is the thing that generates the conduct,” he said.

A blunt instrument

Legal experts also noted the criminal justice system alone cannot solve the fentanyl crisis.

“Most people who have [lost] a loved one [to drug overdose] want to see a direct consequence to the person that’s responsible,” said Westell. “But I think they would also like to see something on a more macro level that helps eliminate the problem more holistically, and that can’t be [achieved through] crime and punishment alone.”

Thorning agrees.

“These are mental health .. [and] medical issues,” he said. “Criminal law is a blunt instrument [that is] not going to deal with these things effectively.”

Even Fowlie sees the problem as bigger than sentencing. Her son struggled with the stigma associated with therapy and medication, which made it difficult for him to seek help.

“We need to normalize seeing a therapist, like we normalize getting your eyes checked every year,” she said.

“Pot isn’t the gateway drug, trauma is a gateway drug.”

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This article was produced through the Breaking Needles Fellowship Program, which provided a grant to Canadian Affairs, a digital media outlet, to fund journalism exploring addiction and crime in Canada. Articles produced through the Fellowship are co-published by Break The Needle and Canadian Affairs.