A homeless B.C. man who was sentenced to 20 months in jail for selling $20 of fentanyl-laced heroin to an undercover cop had his prison sentence overturned this week.
On Tuesday, the B.C. Court of Appeal released its decision in Regina vs. James Robert Schneider, who pleaded guilty to trafficking in a controlled substance in Kelowna but later appealed his jail sentence.
Court documents said “Schneider was homeless, living on the streets, and addicted to heroin, when an undercover police officer saw him consuming drugs and asked to purchase some from him.
“The appellant then sold $20 worth of heroin containing fentanyl to the undercover officer.”
The accused was asking for a two-year suspended sentence while the Crown was seeking a three-year jail sentence. The amount of fentanyl-laced heroin sold to the police officer, according to court documents, was 0.2 grams.
The judge gave a sentence of 26 months, minus six months for time served, plus two years of probation.
During the sentencing hearing, though, court was told that Schneider — who had a lengthy record, mostly related to drug issues — was bettering himself following the arrest.
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“While in custody (some of which was in relation to another matter) for approximately six months after arrest, he completed 22 self-improvement and life skills modules,” said the Court of Appeal decision.
“He also attended a school program and was described by a teacher as ‘a conscientious student who strives to do his best in academic studies.’ Following release from custody on bail, the appellant was a resident at a recovery house where he followed the strict conditions without breach for approximately 17 months pending trial and sentencing.
“The operator of the recovery house testified as to the serious commitment and many steps that the appellant had taken towards rehabilitation, describing him as a ‘changed’ man and placing him in the top 200 of the tens of thousands of individuals passing through the recovery house program.”
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The Court of Appeal said Schneider had not used illicit drugs for approximately 23 months by the time of sentencing, and was enrolled in a methadone program.
Come sentencing time, however, the original judge said, “in my view, while Mr. Schneider’s efforts at rehabilitation are admirable, the need for general deterrence requires that his conduct be denounced, notwithstanding those effects. People who are engaged in trafficking in fentanyl must understand they will be facing a lengthy jail sentence.”
The Court of Appeal shot down that statement, saying, “the judge made an error in holding that, regardless of the presence of exceptional circumstances, trafficking in fentanyl always calls for a lengthy jail sentence.
“In effect, he concluded that a long-term drug addict’s exceptional rehabilitation efforts do not justify a suspended sentence which would allow continued treatment in the community, but, rather, require an interruption of the community-based treatment and sending the offender back to prison if the offender has sold a drug laced with fentanyl.”
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The Court of Appeal also said, “In reality, the appellant, a homeless and lifelong drug addict, was seen by an undercover officer to be smoking heroin with another person. The officer approached the appellant and initiated the $20 purchase of the drug the appellant was himself using.
“In the contest of a lifelong addict who had turned to drugs after childhood sexual abuse, this conduct was relatively low on the scale of moral blameworthiness.”
In overturning the court’s original decision, the Court of Appeal handed Schneider a suspended sentence with 36 months of probation. His probation terms were lengthy, including obeying a curfew between 6:30 p.m. and 7:30 a.m., residing at recovery society in Logan Lake, being immediately available when a peace officer or probation officer calls or visits, and performing 100 hours of community work service.
For more on the Court of Appeal decision, click here.
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