THE ROLE OF IDEOLOGY IN R V SMITH: A DWORKINIAN REIMAGINING OF LEGAL WORK

Abstract

In R v Smith , the British Columbia Court of Appeal increased the sentencing range associated with trafficking offences that involve the street-level sale or distribution of fentanyl, citing in its reasons the need to be responsive to the proliferation of opioid abuse in the province. At the time this judgment was rendered, the province’s political imagination was bifurcated into two ideological characterizations of the issue: the fentanyl crisis as a public health emergency, and the fentanyl crisis as a problem of criminality. The Court in Smith  implicitly takes up or, at least, responds to this latter ideology and, in so doing, practices what Duncan Kennedy terms legal work. Through critical examination of the decision in Smith , this article complexifies what it means to do ethical legal work. This article argues that legal work is only legitimate insofar as legal decisionmakers sincerely address competing political perspectives contained in the discursive landscape before rendering a judgment that adheres to their own politics.