Urgent and long overdue: legal reform and drug decriminalisation in Canada

Recommended Pillars of a Canadian Decriminalization Model

Below, we set out a series of recommendations regarding the components of a Canadian decriminalization model.

Pillar #1: Consistent Application of Uniform Requirements Across the Country

The federal government must adopt a national approach to decriminalization of drug possession for personal use. In the face of continuing federal inaction, some municipalities such as Vancouver and Toronto, as well as the province of British Columbia, have applied for section 56 exemptions under the CDSA. First, there is the very real prospect of a patchwork of legal models across the country which will create significant disparities for people who use drugs. Second, this section 56 exemption approach is inefficient, as it requires individual municipalities and provinces to file individual applications with Health Canada, a time-consuming, costly, and intensive process. For that reason, we support the recommendation by the HIV Legal Network, PIVOT, and others to issue a consistent, nationwide blanket exemption from section 4 of the CDSA, applying to all persons in the country and in relation to all substances currently criminalized under the CDSA and its schedules.

Pillar #2: Reducing Opportunities for Discretionary Decision-making by Police and Prosecutors

We recommend that a Canadian decriminalization model should set clear and consistent guidelines that apply to all people in Canada and limit the opportunities for the police to exercise their discretion with respect to who is charged under any new or revised law. At minimum, this requires a full repeal of s. 4 of the CDSA so police and prosecutors can no longer charge people with the offence of simple possession. Measures such as Bill C-5 and prosecutorial guidelines merely enumerate principles and/or alternatives to criminal prosecution for police and prosecutors to consider, yet failure to consider them does not invalidate charges pursuant to s. 4. Current drug laws enable, and in many instances support the deployment of police discretion in their application. As the Canadian Association of Chiefs of Police state in their Decriminalization Findings and Recommendation Report, “simple possession of illicit drugs for personal use is subject to police discretion.” Police officers and prosecutors across the country have always had the ability to use their discretion to prioritize the health and safety rights of people who use drugs, and to determine whether, when and against whom to lay charges. As we have outlined above, the harmful effects of Canada’s prohibitionist drug policies have been, and continue to be, disproportionately experienced. The Ontario Human Rights Commission states that “systemic racial discrimination, Urgent and Long Overdue: Legal Reform and Drug Decriminalization in Canada 35 along with anti-Black and anti-Indigenous racism, lies at the core of many of our institutions.” As the BC Civil Liberties Association affirms, “…prosecutorial and police discretion and surveillance is unacceptable, given such discretion often targets Indigenous, Black, racialized, undocumented migrant, homeless, two spirit and trans drug users; furthermore, the use of the criminal legal system to enforce diversion measures or treatment is counter to the principles of evidence-based, trauma-informed, voluntary treatment.” A Canadian decriminalization model should seek to create and maintain clear and consistent guidelines that apply evenly to all people in Canada and that are free from potential systemically discriminatory police and prosecutorial bias in the exercise of their discretion.294 While the prosecutorial Guidelines released in August 2020 under the Public Prosecutions Act represent a step forward in outlining principles for responding to the simple possession of controlled substances under section 4(1), including the call for prosecutor to consider alternatives to prosecution (see page 6 for an overview); section 4(1) remains in place, as an alternative to eliminating the offence altogether.

Pillar #3: Determining Thresholds: Setting Realistic Regulatory Policy

A Canadian decriminalization model must consider the implications of setting thresholds in distinguishing the quantities that a person is allowed to possess without facing possible criminal prosecution. Legal thresholds are used in some decriminalization models as a mechanism to differentiate smaller-scale possession that is legally allowed from larger-scale commercial activity. Legal thresholds can also be used in the sentencing of drug offenders in cases of a trafficking conviction.296 Under some models, such as that proposed by the City of Vancouver (discussed above in “Decriminalization efforts in Canada”), thresholds provide a ceiling to delineate the upper quantity an individual can possess for the purposes of personal use, with amounts over that threshold still subject to possible prosecution for trafficking and other offences, depending on the circumstances. When set in consultation with people who use drugs and reflective of the realities of current drug use pattern, thresholds “can provide clarity and advance the health and human rights of people who use drugs.” While thresholds can provide a clear boundary in a decriminalization model for determining personal versus commercial activity, there is a lack of empirical evidence relating to the setting of optimal threshold levels. Ever-changing drug demand and supply dynamics exacerbate this challenge. Not surprisingly, “[i]nternational evidence, albeit scarce, has shown that drug thresholds may have unintended consequences: increasing for example the risk of disproportionate and unjust sanction.” This has been a key issue discussed in relation to Vancouver’s proposed model. As Pivot Legal Society explains, “[t]he thresholds proposed by Vancouver are far too low, failing to reflect the realities of current patterns of drug use. Based on three studies, which Vancouver admits are dated, the proposed thresholds overlook that many people’s drug tolerance and purchasing patterns have dramatically increased and that the drug market itself has changed because of COVID-19.” When thresholds are set based on individual consumption patterns, they may fail to capture the range of auxiliary everyday activities by people who use drugs take part in that are related to personal drug use, as opposed to commercial in nature. Some of these purchasing patterns represent mechanisms that support safer use strategies (e.g., buying larger quantities/ greater volumes from a trusted source), or strategies to mitigate legal or other safety risk (e.g., purchasing a larger quantity but less frequently to minimize contact with illegal market); these should be considered if thresholds are used as a tool to differentiate between criminal and non-criminal An RSC Policy Briefing 36 behaviour. As noted in the literature and recently by the Canadian Drug Policy Coalition in reference to British Columbia’s request to decriminalize simple possession up to a cumulative amount; there are significant risks of “net-widening” in defining a threshold that does not reflect real-world patterns of use.

Pillar #4: Addressing ‘Splitting and Sharing’

Sharing and splitting drugs for personal use are common practices, and part of broader drug use culture that can support safer use practices (e.g., never using alone). In Canada, splitting and sharing of drugs for personal use was studied recently in the context of federally authorized opioid overdose prevention services and supervised consumption services. In these settings, individuals can bring in and use their own drugs but they are restricted by the narrow scope of the site’s CDSA exemption from splitting or sharing their personal drugs with others using the facility. As a result, people using these services must go outside the sanctioned site to share, creating barriers to accessibility and heightening the risk of arrest. Others face temporary bans from service access. Recent discussions on splitting and sharing, highlight the need to ensure that drug policies and services that are developed accurately reflect community practices and incorporate the needs of those the policies seek to support.

Pillar #5: Retroactive Expungement of Criminal Records

A Canadian decriminalization model must also include a mechanism to expunge the criminal records of those previously convicted of simple drug possession. There are significant harms associated with a criminal record, including reduced opportunities for housing and employment, travel restrictions and a negative impact on child custody. Having a criminal record also leads to ongoing stigma and discrimination. Two distinct legal mechanisms may be used to address previous convictions when the government determines that an activity is no longer criminal: a pardon or an expungement of the criminal record. The distinction between the two appears to lie in whether the criminalization of the underlying activity would be found to violate the Charter. Where this is the case, expungement is the appropriate approach. In 2018, the federal government put into place an expungement process for Canadians convicted of historically unjust offences through the enactment of the Expungement of Historically Unjust Convictions Act. Offences listed in the schedule to the Act are those found inconsistent with the Charter, and include consensual same-sex intercourse and gross indecency (among others). Given the discriminatory application of the CDSA and the strong likelihood, discussed above, that the provisions which prohibit simple possession for personal use violate sections 7 and 15 of the Charter, we do not believe that a pardon for a previous conviction is appropriate as only an expungement allows a person to claim that they do not have a criminal record. Instead, we recommend that the federal government enact legislation which would result in a low-barrier process for the expungement of a person’s criminal records relating to simple possession.