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A woman walks past a sign posted by the Insite supervised injection site warning of heroin cut with fentanyl in Vancouver.

Darryl Dyck/The Globe and Mail

Legal experts and justice officials across North America are taking different approaches to fentanyl-related drug offences, reflecting the complexity of trying to get a handle on a legal painkiller that in recent years has become a deadly street drug fuelling an overdose crisis.

In Canada, drug cases involving fentanyl have seen judges weigh whether the presence of fentanyl – a drug in the same category as heroin and cocaine – increases the severity or culpability of a criminal act, such as trafficking, in light of the recent surge in fentanyl-related deaths. In the United States, some fentanyl dealers have been slapped with penalties on par with second-degree murder.

In July, a B.C. Supreme Court judge in Kelowna declined to consider the presence of fentanyl an aggravating factor when sentencing a man convicted of trafficking cocaine as well as the powerful synthetic opioid. The Crown had sought a four-year sentence, citing reports on the deadly implications of fentanyl use; the judge acknowledged its dangers but noted it is a Schedule 1 drug like cocaine and heroin and must be treated the same. The man was handed a 28-month sentence.

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But last month, a provincial court judge in Campbell River said she was entitled to consider the dangers of fentanyl, and the public-health emergency it triggered in B.C., when sentencing a man convicted of possessing cocaine, heroin, fentanyl and marijuana for the purposes of trafficking.

"Fentanyl-related overdose cases resulting in death have been rising at alarming rates in this province and across Canada," Justice Barbara Flewelling said in her decision, also noting that fentanyl is the same drug schedule as heroin and cocaine.

"While I accept that there is not a higher sentence prescribed by Parliament for selling fentanyl or drugs containing fentanyl, this court can consider the consequences of selling fentanyl or drugs containing fentanyl."

The accused in that case was sentenced to 12 months in custody; his lawyer had argued for a sentence of six months as it was the man's first drug offence.

The state of New Hampshire, which saw overdose deaths rise to 438 last year from about 160 in 2012, brought back a rarely used drug statute under which anyone who knowingly manufactures, sells or dispenses a controlled drug that results in the death of someone who ingested it is liable for that death.

It is sometimes called a "but for" test: "But for this person ingesting these drugs, he/she would not have died," explained Ben Agati, senior assistant attorney-general for the New Hampshire Department of Justice.

This statute removes the element of intent that needs to be considered in first degree, second degree, manslaughter and negligent homicide charges. It carries with it the same potential penalty as second-degree murder.

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"People say, 'We can't arrest our way out of the drug problem; we can't think that just arresting everyone who sells drugs is going to fix the problem,' and those people are absolutely right," Mr. Agati said.

"But I sit on a couple of different opioid task forces here for the state and we've had pharmacists, doctors, pediatricians, people in social services, come and say, 'We can't just treat our way out of this problem either.' Everyone has to be doing their share."

One of the toughest fentanyl-related sentences in New Hampshire was handed down in late August to a drug dealer who supplied drugs that led to one fatal overdose and contributed to the suicide of a second person. That man was sentenced to 15 to 30 years in prison.

Simon Fraser University criminologist Neil Boyd said while fentanyl is a concern and it is legitimate to examine the circumstances in which it was distributed, criminal law should not be used to address the issue of drug use.

"It's an understandable short-term response to the problem, to punish people who are so careless with the lives of the individuals they're selling product to," he said. "It's a kind of product-liability case. If this was a legal product, you would see people being sued for negligence in the manufacture and distribution of this product. But the answer is not to continue to use criminal law against people who impose risk to their health."

With a report from The Canadian Press

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