On February 18, Canada’s governing Liberal Party finally moved to enact long-promised reforms in its criminal justice system by introducing a sweeping new bill that “would require police and prosecutors to consider alternative measures for cases of simple possession of drugs,” other than making arrests. The legislation would also end all mandatory minimum sentences for drug offenses and some “gun-related crimes,” and open the way for conditional (probationary) sentences for a variety of offenses. But is it enough?
The government’s move comes as Prime Minister Justin Trudeau faces mounting pressure for reform on two fronts. First, Canada is facing an unprecedented drug overdose crisis, with the province of British Columbia hit especially hard. According to a recent report on “unintentional illicit drug toxicity deaths” by the provincial Coroners Service, British Columbia saw a whopping 1,724 drug overdose deaths in 2020, up by a startling 74 percent from 2019.
The province has always been on the cutting edge of drug reform in Canada, and spurred by the crisis, British Columbia formally asked the federal government in early February for an exemption to the country’s drug laws to allow it to decriminalize the possession of personal use amounts of illicit drugs. That request is still being considered by Ottawa.
But the pressure for drug decriminalization isn’t just coming from British Columbia; it’s coming from inside the criminal justice system. In July 2020, the Canadian Association of Chiefs of Police’s president, chief constable Adam Palmer, called for drug decriminalization, recommending that “Canada’s enforcement-based approach for possession be replaced with a health-care approach that diverts people from the criminal justice system.” The following month, the federal prosecution service issued “a new directive permitting prosecution only in the most serious cases.”
And public opinion supports decriminalization. An Angus Reid Institute poll released after the government announced the new bill found that seven out of 10 Canadians felt the country’s opioid crisis had worsened in 2020, and 59 percent supported the decriminalization of all illegal drugs.
Second, just as the massive protests in the summer of 2020 in the United States channeled and amplified long-standing demands for racial and social justice, so have they echoed north of the border. Canada has its own not-so-noble history of racism and discrimination, and the number of Black and Indigenous people swept up in the country’s criminal justice system demonstrates that the legacy of the past continues to this day, as reported on Vice.
Indigenous people make up 5 percent of the Canadian population but accounted for more than 30 percent of all federal prisoners by 2020. Similarly, Black people account for about 3 percent of the population of the country but made up more than 7 percent of prisoners in the country’s federal correctional services in 2019. As the justice ministry noted in a 2018 report, after Conservatives passed tough anti-crime measures early this century, Black and Indigenous people were disproportionately targeted for mandatory minimum sentencing in the decade ending in 2017. And as the Office of the Correctional Investigator reported, Black inmates are more likely to be sent to maximum-security prisons, have force used against them, and be denied parole.
As the government rolled out the bill, C-22, “An Act to amend the Criminal Code and the Controlled Drugs and Substances Act,” Justice Minister David Lametti made it clear that not just public health but also racial justice was a priority.
In a mandate letter, Trudeau had asked Lametti to “address systemic inequities in the criminal justice system.” In a press conference on February 18, Lametti said that the system “did not make the justice system more effective or more fair. Its singular accomplishment has been to incarcerate too many Indigenous people, too many Black people and too many marginalized Canadians.”
The bill envisions reforms in policing, prosecuting, and sentencing drug offenders and sets out principles for dealing with drug offenses, including that “problematic substance use should be addressed primarily as a health and social issue.” It further adds that state actors should recognize human rights and harm reduction imperatives, and criminal sanctions are stigmatizing and “not consistent with established public health evidence.”
Under these principles, when encountering people using or possessing drugs, a peace officer would be granted the discretion to “consider whether it would be preferable… to take no further action, to warn the individual or, with the consent of the individual, to refer the individual to a program or to an agency or other service provider in the community that may assist the individual.”
Similarly, the bill mandates prosecutors open drug possession cases only when a warning, referral, or alternative measures are “not appropriate, and a prosecution is appropriate in the circumstances.” And it gives judges much broader discretion to order probationary sentences instead of confinement.
The bill looks as if it were designed to cut off an influx of inmates to the Canadian prison system at every level of the system. Liberal MP Nathaniel Erskine-Smith, who has represented Toronto’s Beaches-East York district since 2015, and is a longtime proponent of full drug decriminalization, says that is exactly what it is supposed to do.
He filed private member’s bills this session for decriminalization (C-235) and for an evidence-based diversion model (C-236) to reduce drug arrests and prosecutions. It is the latter bill that the government has now largely adopted as C-22.
“I favor drug decriminalization because the war on drugs is an absolute failure that harms the people we want to help,” he told Drug Reporter. “Our opioid crisis has taken more than 16,000 lives since 2016, and there is systemic racism in the criminal justice system, including around drug charges.”
But if the Trudeau government wasn’t ready to take the big step of decriminalization, Erskine-Smith’s bills offered an out.
“My goal was to call for full decriminalization with a second bill to show the government if they weren’t inclined to favor decriminalization, here’s an alternative that would get us closer to the goal and would be more politically feasible. This bill [C-22] seriously restricts the discretion of police and prosecutors to proceed, according to a set of principles that will ensure a stronger focus on human rights and harm reduction,” he said. “It doesn’t go as far as I want it to go, but it is unquestionably a step forward. It will be virtually impossible for the state to move forward with drug possession charges and prosecutions.”
Donald MacPherson, executive director of the Canadian Drug Policy Coalition and author of Vancouver’s groundbreaking Four Pillars drug strategy in the 1990s, has a more jaundiced view of both the Liberals and C-22.
“The things that are in this bill are all things the Liberals promised when they were elected in 2015, and if they had done this then it would have been seen as a good move, getting rid of egregious stuff the [Stephen] Harper government had implemented,” he told Drug Reporter. “But now, the discussion has moved so far that even police chiefs are calling for decriminalization. It’s too little, too late.”
Even the limited support he gave the bill was filled with caveats.
“Overall, though, it is a good thing, it is incremental progress; getting rid of the mandatory minimums is probably the most powerful aspect in terms of criminal law,” MacPherson conceded. “But the bill was supposed to deal with the disproportionate impact of drug law enforcement on people of color, and it won’t do it. There will be more probationary sentences and more alternatives to imprisonment, but arrests and prosecutions will be ‘at the discretion of,’ and Black and Indigenous people will now be caught up in kinder, gentler diversion programs.”
Still, the passage of C-22 would be a step in the right direction, MacPherson said.
“It is preparing the ground for the next step, full decriminalization, which I think is now inevitable. The harms of criminalization in Canada are now so evident to everyone that the question now is not whether to but how to,” he said. “We saw this with cannabis—at a certain point, the change in the discourse was palpable. We’re now at that point with drug decriminalization.”
Longtime Vancouver drug user activist Ann Livingston, co-founder of the pioneering Vancouver Area Network of Drug Users (VANDU) and currently the executive project coordinator for the British Columbia and Yukon Association of Drug War Survivors, had an even more critical view, scoffing at more police discretion and expanded probationary sentences.
“I’m glad to see the mandatory minimums gone, but the Liberals want more police, and we say don’t do us any more favors,” she told Drug Reporter. “And the police have always had discretion to not make drug arrests; they just never exercise it. And probation—many of the people in jail are there for probation violations, even administrative ones, like missing appointments.”
For Livingston, the cutting edge is now no longer criminal justice reforms or even decriminalization but creating a safe supply of currently illegal drugs. Limited opioid maintenance programs, including heroin, are available in the city, but they aren’t enough, she said.
“Here in British Columbia, we had 900 COVID deaths last year and 1,700 overdose deaths. What we need is a safe drug supply,” she argued. “We have to have clear demands, and what we are demanding is a pure, safe supply of heroin, cocaine, and crystal meth. This is a crisis; this is the time to do this drug law stuff right. And to get serious. The feds tell us they place no barriers on heroin prescribing, but then they fight about who is going to pay for it.”
If Justin Trudeau and the Liberals think passing C-22 is going to quiet the clamor for more fundamental change in Canadian drug policies, they should probably think again.
This article was produced by Drug Reporter, a project of the Independent Media Institute.