Ottawa must repeal drug possession laws if it is serious about cracking down on systemic racism in the justice system, researchers and advocates say.
Last week, the federal government tabled Bill C-22, which was hailed for the most part as a progressive piece of criminal justice reform legislation. Among other things, it would eliminate all mandatory minimum penalties for drug offences, which the government acknowledges has led to the over-incarceration of Black and Indigenous people.
Where critics say the bill falls short is in its treatment of drug possession offences. Rather than eliminating them entirely, the bill lays out a framework that requires police and prosecutors to consider alternatives to criminal charges and incarceration, including issuing warnings or referrals to treatment programs.
One of the problems, says University of Toronto criminologist Akwasi Owusu-Bempah, is that the bill whether leaves whether charges should be laid or prosecutions carried out to the discretion of police and prosecutors.
“We know that police officers do not exercise their discretion evenly across social groups,” Owusu-Bempah said, “and so racialized individuals, Indigenous people and economically marginalized people are less likely to benefit from positive police discretion.
“I think a full repeal would have gone a lot further with respect to advancing the racial justice and racial equity stance that this government has indicated it wants to take.”
More than 100 organizations, including the HIV Legal Network, the Black Indigenous Harm Reduction Alliance, and the Canadian Nurses Association urged federal ministers in a letter last year to immediately decriminalize possession offences.
Justice Minister David Lametti made clear after tabling Bill C-22 last week that the government views drug addiction as a public health issue first and foremost, and not one for which the criminal justice system is best suited.
Lametti said Bill C-22 focuses on the overrepresentation of Black and Indigenous people in the justice system by removing some mandatory minimum penalties and giving police and prosecutors additional flexibility to keep people out of the system.
“The goal of this legislation was not decriminalization,” he said Tuesday, adding that it’s an “important question” that needs to be debated both in the public sphere and the legislature.
“I think my colleagues and I have shown that we’re open to that debate,” Lametti said.
Liberal MP Nathaniel Erskine-Smith, who has advocated for decriminalization and tabled a private member’s bill that would have decriminalized simple possession, said Bill C-22 does not go as far as he would have liked, but is a significant improvement to the current situation.
“I do think it’s a step forward and it would make it virtually impossible for police and prosecutors to successfully move forward with convicting anyone and incarcerating anyone for simple possession,” he said. “I think it will, in many respects, be de facto decriminalization.”
Some criminal defence lawyers disagree, pointing out that charges and prosecutions would still be possible if C-22 passes.
The government’s bill outlines principles largely adopted from another of Erskine-Smith’s private member’s bills to guide police and prosecutors on how to use their discretion.
They include recognizing that drug use is primarily a health issue, that criminal sanctions can increase stigma and are not consistent with public health evidence, and that court resources would be better used on cases involving risks to public safety.
Actions that may be taken by police and prosecutors include taking no action at all, issuing a warning, or referring the individual to “alternative measures” such as a treatment program.
Toronto criminal defence lawyer Annamaria Enenajor said it’s crucial that people who access treatment programs are going on a voluntary basis. She said not everyone in possession of drugs has a substance abuse disorder, but argues the bill implies otherwise.
“It’s fitting people into a box where they don’t necessarily belong and not treating them like the autonomous human beings that they are,” Enenajor said.
Tens of thousands of simple possession charges are laid by police each year. Excluding cannabis, Statistics Canada noted that between 2010 and 2019, “the combined rate of possession offences for other types of drugs has been increasing annually.”
Leaving drug possession as a criminal offence will continue to stigmatize people who use drugs and do nothing to fight the opioid crisis, said Harsha Walia, executive director of the B.C. Civil Liberties Association.
She pointed out that in B.C., the highest proportion of people who are impacted by fatal overdoses are Indigenous people, especially Indigenous women.
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“And so full decriminalization is an anti-racist measure. It protects the lives of racialized people, especially Black and Indigenous people,” she said.
“Criminalization really drives drug use and the drug trade underground where people are afraid and are using either alone and/or are not able to test their drug supply because they’re worried about the criminal prohibition.”
Last year, the Canadian Association of Chiefs of Police endorsed decriminalization of drugs possessed for personal use.