Urgent and long overdue: legal reform and drug decriminalization in Canada
Abstract
Introduction: employing a human rights approach
The impact of COVID-19
COVID-19: the impact of the pandemic on PWUD and harm reduction efforts
Roadmap of the report
1. The legal context of criminal law
1.1. A brief history of Canada's drug laws
“The approach set out in this guideline directs prosecutors to focus upon the most serious cases raising public safety concerns for prosecution and to otherwise pursue suitable alternative measures and diversion from the criminal justice system for simple possession cases”.
1.2. The purposes of the criminal law
[The] criminal law should be employed to deal only with that conduct for which other means of social control are inadequate or inappropriate, and in a manner which interferes with individual rights and freedoms only to the extent necessarily for the attainment of its purpose.
As the most serious form of social intervention with individual freedoms, the criminal law is to be invoked only where necessary, when the use of other means is clearly inadequate or would depreciate the seriousness of the conduct in question. As well, the Principle suggests that, even after the initial decision has been made to invoke the criminal law, the nature or extent of the response of the criminal justice system should be governed by considerations of economy, necessity and restraint, consonant of course with the need to maintain social order and protect the public.
In the boundary between criminal law and private morality, various concerns have been expressed about either decriminalizing or diverting from criminal prosecution many acts widely considered crimes of “going to Hell in one's own fashion”, such as drug and gambling offences. Some of these offences are considered too minor to be treated with a heavy hand of the criminal law; others are thought to be more effectively dealt with through public education or regulation.
When we take drugs we do so to alter ordinary waking consciousness. The criminal control of a citizen's desire to alter consciousness is unnecessary. We have other at least equally useful and less punitive methods available for control: taxation, prescription, and prohibition of public consumption. But most important, we should confront our own hypocrisy. We can no longer afford the illusion that the alcohol drinkers and tobacco smokers of Canada are engaging in methods of consciousness alteration that are more safe or socially desirable than the sniffing of cocaine, the smoking or drinking of opiates, or the smoking of marijuana.
The answer is not to usher in a new wave of prohibitionist sentiment against all drugs, nor is the answer to allow the free-market promotion of any psychoactive. The middle ground is carefully regulated access to drugs by consenting adults, with no advertising, fully informed consumers, and taxation based on the extent and harm produced by use. There is a need for tolerance, for both tobacco and heroin addicts. And there is a need for control of the settings and social circumstances of drug use. There are no good, or bad, drugs, though some are more toxic, some are more likely to produce dependence, and some are very difficult to use without significant risks…. The task is to dismantle the costly and violent criminal apparatus that we have built around drug use and distribution, mindful that our overriding concern should be public health, not the self-interested morality of Western industrial culture.
1.3. Alternatives to criminalization
To promote alternatives to conviction and punishment in appropriate cases, including the decriminalization of drug possession for personal use, and to promote the principle of proportionality, to address prison overcrowding and overincarceration by people accused of drug crimes, to support implementation of effective criminal justice responses that ensure legal guarantees and due process safeguards pertaining to criminal justice proceedings and ensure timely access to legal aid and the right to a fair trial, and to support practical measures to prohibit arbitrary arrest and detention and torture.
Review and repeal punitive laws that have been proven to have negative health outcomes and that counter established public health evidence. These include laws that criminalize or otherwise prohibit gender expression, same sex conduct, adultery, and other sexual behaviours between consenting adults; adult consensual sex work; drug use or possession of drugs for personal use; sexual and reproductive health care services, including information; and overly broad criminalization of HIV non-disclosure, exposure, or transmission.
Under international law, Canada has both important latitude under the drug control conventions, and important obligations under human rights treaties it has ratified. It can and should use that latitude in the realm of drug control to better respect, protect and fulfil the human rights it has pledged to uphold, and which are also embodied to various degrees in its own constitution.
2. Forms of decriminalization
2.1. Distinction between de jure (in law) and de facto (in practice)
2.2. National de jure decriminalization
2.2.1. Portugal
2.2.2. Spain
2.3. National de facto approaches
2.3.1. Switzerland
2.3.2. The Netherlands
3. Law reform proposals in Canada
3.1. Decriminalization efforts in Canada
3.2. Law reform proposals
3.2.1. City of Vancouver: the Vancouver model
3.2.2. Province of British Columbia
3.2.3. Federal law reform proposals
3.2.4. Expert reports and recommendations
4. Constitutional considerations
4.1. Section 7 of the Charter: the right to life, liberty, and security of the person
4.1.1. Criminalization and the right to liberty
4.1.2. Criminalization and the right to life and to the security of the person
… hospitals dispense opioids every day to relieve pain. These drugs are not killing people because the quality of the supply is regulated, the dosages are managed, ingestion is overseen and, should a problem arise, there are trained people on hand who can intervene and who are not made afraid by the spectre of criminalization and stigma. Proponents of harm reduction argue that context matters and shunting drug consumption out of sight while criminalizing and stigmatizing it does the opposite of keeping people safe.
4.1.3. Criminalizing possession for personal use: the principles of fundamental justice
4.2. Criminalizing possession: discrimination
4.2.1. Section 4(1) of the CDSA
There is now copious evidence of the harms of criminalizing simple possession particularly to vulnerable people. Since criminalization of drug possession directly leads to both individual and systemic stigma, it supports discrimination against people who use drugs and prevents people from seeking services. It also undermines the development of health services because needed resources are diverted to the criminal justice system (including correctional facilities) and because people with problematic drug use, when regarded as criminals, are not seen as deserving of services.
4.3. Section 1 of the Charter
The current prohibitionist approach to drug policy has failed to achieve its stated ends: to prevent the growth of illegal drug markets, to curtail use of illegal substances, and to prevent harms associated with the use of these substances. Instead, harms have been magnified through the creation, in reaction to interdiction, of a highly toxic illegal drug supply, and the criminalization, stigmatization, and marginalization of individuals – many of whom have opioid use disorder, a known chronic, relapsing health condition. In addition, massive profits have been generated for violent criminal enterprises involved in the illegal drug market.
5. Ending the harms associated with criminalization
5.1. Stigma
5.2. Drug toxicity
5.3. Barriers to harm reduction
5.4. Health and social inequities
5.5. Harms associated with incarceration
6. Decriminalizing to reduce harms
6.1. Recommendations for law reform
6.1.1. Procedural recommendations
6.1.2. Recommended pillars of a Canadian decriminalization model
Pillar #1: Consistent application of uniform requirements across the country
Pillar #2: Reducing opportunities for discretionary decision-making by police and prosecutors
Pillar #3: determining thresholds: setting realistic regulatory policy
Pillar #4: Addressing “Splitting and Sharing”
Pillar #5: Retroactive expungement of criminal records
6.1.3. Implementing a Canadian decriminalization model: a staged approach
Stage one: immediate policy changes
Stage two: regulatory amendments
Stage three: introducing a new comprehensive legislative framework
7. Conclusion
References
Legislation A
Case law
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