Man appealing 18-year drugs, weapons sentence

Charged during a large-scale investigation into crimes committed by motorcycle gang members, high-ranking Fallen Saints member Justin Smith is hoping for a 10-year reduction in sentence.

In March 2017, the now-36-year-old received 18 years in prison for a string of drugs, weapons and criminal organization charges, with much of the sentence accounting for his involvement in fentanyl trafficking.

In passing the stiff sentence, Saskatoon Court of Queen’s Bench Justice Shawn Smith referred to Smith as a trafficker of “poison and the instruments of death” who lay at the “heart of organized crime” within Saskatoon.

Smith was nabbed during a police investigation dubbed Project Forseti, which targeted the Fallen Saints and Hells Angels and ultimately led to numerous arrests. Central to the investigation was a police agent, the vice president of the Fallen Saints.

Smith — who dealt directly with the agent from time to time during the course of the investigation in 2014 — pleaded guilty to a range of offences midway through trial. In sentencing him to 18 years, the judge first calculated a total term of 35 years. But he applied the totality principle — which ensures a sentence is not unduly harsh or “crushing” so as to preclude the possibility of rehabilitation — in effectively halving the sentence from his starting point.

Smith appealed, and his case was heard on Tuesday at the Saskatchewan Court of Appeal. After hearing several hours worth of arguments from lawyers for the Crown and Smith, Chief Justice Robert Richards and Justices Georgina Jackson and Jerome Tholl reserved their decision.

As is usual, a date for the return of the court’s decision has not been set.

Smith’s lawyer Brian Beresh presented arguments on a wide range of issues, but focused on several specifically. Of particular note during Tuesday’s arguments was the fact the sentencing judge provided next to no reasons for his decision — one Beresh described as “harsh, unreasonable and disproportionate.”

Beresh said the judge based his decision on aggravating factors, but found there were no mitigating factors that might otherwise have tempered the overall sentence. Beresh noted his client pleaded guilty, had a significant gap in his record in terms of serious offences and expressed remorse — all mitigating factors judges would typically take into account during sentencing.

Beresh argued the judge took an “arithmetic approach” to determining penalty, and therefore failed to strike the appropriate balance in sentencing.

The most noteworthy pre-totality penalty was 15 years for fentanyl trafficking, a term Beresh argued should be reserved for cases such as ones involving those in a position of trust, such as pharmacists, or ones involving importation or exportation.

While the province’s highest court is routinely wary when wading into cases focused on judicial discretion — having noted a sentencing judge who heard the case is in the best position to determine the outcome — Beresh said this case “cries out for this court’s leadership and direction.”

“This is the time to get it right,” he said, asking the court to overturn the original sentence and replace it with one of no more than eight years.

But Crown prosecutor Wade McBride argued the lower court already got the penalty right.

While he acknowledged the lack of reasons provided by the Queen’s Bench judge was problematic, McBride urged the Court of Appeal to find the sentence itself nonetheless appropriate, given the serious circumstances involved.

“Most courts are viewing fentanyl … (as) a serious, serious offence,” he said. “The risk of death is substantial.”

McBride pointed out Smith’s offending involved the sale of hundreds of fentanyl pills per transaction.

“We may start at the wrong place,” he said of the sparsely written decision, “but we get to the correct place in the end.”

hpolischuk@postmedia.com

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