The Trudeau government has unveiled sweeping new justice legislation, aimed to ramp down prosecutions for drug crimes and address the growing problem of over-incarcerating Black and Indigenous peoples.
The new law, if passed, would prioritize treatment for drug users, instead of prosecution and possible incarceration. While not full drug decriminalization, it is a step forward towards ending the war on drugs in Canada.
The bill, C-22, also abolishes a number of mandatory minimum sentences.
The government bill, introduced in the House of Commons by Justice Minister David Lametti Thursday, makes good on some long-delayed promises by the Liberal government to reform Canada’s justice system.
The new law will specifically allow police officers, when stopping someone in possession of recreational drugs, to “consider whether it would be preferable...to take no further action, or 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.”
“We all know that the criminal justice system is a terrible social service agency,” Justice Minister David Lametti said in a Thursday afternoon press conference.
If charges are laid, the law requires the courts to consider a list of principles before prosecuting or sentencing an individual facing drug charges—including a recognition that drug use is primarily a health issue; that criminal sanctions for drug possession “are not consistent with established public health evidence”; and that court resources are better used “in relation to offences that pose a risk to public safety.”
The law encourages the court to dismiss the charges, or pursue “alternative measures.” But the law also allows prosecutors to ignore all that and proceed with prosecution, even for simple possession, if they feel that alternative measures are “not appropriate.”
Those alternative measures, however, have limitations. One of the main diversion routes for those facing small-time drug charges are drug treatment courts. Those courts can, if the offender pleads guilty, order treatment instead of jail. Yet Canada has only about two dozen of these courts, leaving out huge swaths of the country. They face constraints: Calgary’s drug treatment court, for example, sees only about 30 to 40 people a year.
The Trudeau government has committed some new funding in recent years for drug treatment programs. “We certainly need to fund these programs more adequately,” Lametti conceded Thursday.
The complicated new regime begs the question: Why not just decriminalize drug possession outright?
Asked that question, Lametti admitted “I agree with you,” but would not say why his government did not repeal those drug prohibitions altogether. He did say his government would continue “looking at other approaches.”
The legislation largely borrows from a private members’ bill from Liberal backbencher Nathaniel Erskine-Smith, who has long advocated for full drug decriminalization. He told VICE World News that he’s “pretty happy” with the bill, even if it could go further.
“I introduced my bill to push the government to take a stronger public health approach to address the opioid crisis and never expected that it would become a government bill,” Erskine-Smith said. “So it's a really positive step forward and if this becomes law, it would be virtually impossible for a prosecution of simple possession to proceed.”
The stakes are high: 2020 was a particularly deadly year in Canada’s opioid crisis. British Columbia, alone, saw over 1,700 deaths, its worst year on record. The surge in drug poisonings and overdoses has pushed many to call for full drug decriminalization, something Trudeau has repeatedly refused to do.
British Columbia has sought a specific exemption from the Controlled Drugs and Substances Act, effectively allowing for province-wide decriminalization. The federal government is still considering the request.
While the legislation repeals more than a dozen different mandatory minimum penalties — mostly for gun charges — many of those penalties have already been declared unconstitutional in one or more province or territory. The bill doesn’t touch a raft of other mandatory minimums that have already been declared unconstitutional. Justice officials told VICE World News that the government focused on the mandatory minimum penalties that had the largest disproportionate impact on Black and Indigenous offenders, but admitted that this bill leaves a number of laws on the books that have been found unconstitutional.
Lametti admitted that many mandatory minimums were “clogging up” the court system, but did not say why he decided to leave many of the mandatory penalties in place.
The bill does, however, remove all the mandatory minimum sentences found in the Controlled Drugs and Substances Act, meaning courts will have more leeway to decide on sentencing for many drug trafficking and production charges.
An internal justice ministry report from 2018 reported there were 161 different legal challenges to mandatory minimum penalties on the books: At that point, 30 of those penalties were declared unconstitutional and another 57 were still winding their way through the courts.
While the Liberals, on Thursday, recognized the laws as ineffective and disproportionately impactful on Black and Indigenous people, they actively defended these laws in court for the past six years.
The legislation also significantly expands the application of conditional sentences, which allow the courts to order that offenders serve their sentence in the community instead of prison.
Lametti was asked by Trudeau to “address systemic inequities in the criminal justice system,” specifically programs that would divert racialized and Indigenous offenders out of the justice system entirely.
A government official with knowledge of the bill told VICE World News that, with speculation rampant that Canada will head into an election in the spring, they are committed to getting the bill passed into law before the House dissolves.
Despite making up just 5 percent of Canada’s population, more than 30 percent of federal inmates are Indigenous. Nearly 10 percent of inmates are Black. Non-white inmates are more likely to be incarcerated at higher-security prisons, more likely to have force used upon them, and are more likely to be denied parole.
Canada’s over-incarceration problem is due, in large part, to mandatory minimum sentences introduced by the previous Conservative government but left in place and enforced by Trudeau.
A 2018 report from the justice ministry found that over the decade from 2007 to 2017, when many of those tough-on-crime laws were made, Black and Indigenous offenders were disproportionately sentenced using mandatory minimum penalties.
Nearly half of non-white offenders in federal prison are serving time under a mandatory minimum sentence, compared to less than a third of white offenders.
The courts have been striking down these mandatory penalties so frequently that the Supreme Court has declined to hear many of the appeals. That has left a patchwork across the country, where these laws are unconstitutional and invalid in some provinces and territories but not others.
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