In response to both a raging opioid crisis and a massive backlog of court cases due to the COVID-19 pandemic, public prosecutors will no longer seek to incarcerate some people charged for minor drug possession.
The Public Prosecution Service of Canada has instructed Crown attorneys to focus on increased access to treatment and diverting people from the criminal justice system altogether. The decision is based on the “realities” that criminal punishments aren’t effective at stopping drug use, and incarceration and permanent criminal records can cause more harm than good.
The guideline was quietly released Tuesday, and represents a decision to move away from treating substance use disorders as a crime, but rather a health issue, experts and advocates say.
It also adds to growing momentum for decriminalization of controlled substances.
“This is a pretty historic shift, to acknowledge that criminalizing simple drug possession has ‘limited effectiveness,’” said Sandra Ka Hon Chu, director of research at and advocacy at the Canadian HIV/AIDS Legal Network.
“The directive chips away at the facade that waging a war on people who use drugs will address the health or social harms associated with drugs.”
Canadian Mental Health Association CEO Margaret Eaton called the new approach a “game changer” for people who use drugs and may be carrying a small amount for personal use.
“We are very much hoping this reduces stigma and encourages people to get more help,” Eaton said. “I really hope it is part of a longer term strategy and legislators run the ball to decriminalization.”
Watch: The deadly drugs causing chaos in Canada. Story continues below.
Criminal defence lawyer Daniel Brown said the directive signals that prosecutors are recognizing the criminal justice system is not equipped to end substance use.
“For almost every narcotic, jail is the resolution put forward by most prosecutors,” said Brown, a Criminal Lawyers’ Association vice president.
“A month or more of jail time disrupts a person’s employment and removes them from their family. Even a short period of time can have significant and long-lasting impacts on their ability to rehabilitate themselves.
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“There’s other, more responsible ways to deal with this issue.”
The public prosecution service told HuffPost Canada that the directive is one way to alleviate pressure on the criminal justice system after courtrooms across the country closed this spring because of the pandemic. Thousands of cases, including criminal and civil jury trials, were put on hold, leading to a significant backlog in cases.
The decision is also designed to “address the impact of the pandemic and the crystallization of the opioid crisis,” the service said.
Over the past four years, more than 15,000 Canadians have died from opioid overdoses, a tragedy the COVID-19 crisis has only exacerbated, according to the federal government.
Since March, Toronto has seen an 85 per cent increase in the number of fatal overdoses, compared to the same time last year, according to Toronto councillor Joe Cressy, the health board chair. In July, 27 people died of an overdose, the most ever recorded in a single month.
British Columbia hit the same milestone in June, with 175 deaths linked to overdoses, representing a 130 per cent increase from June 2019, reported the coroners service there.
Amid the crisis, B.C. Premier John Horgan, the Canadian Association of Chiefs of Police and other health experts have called for the federal government to decriminalize small possession of illegal drugs.
More than 50 Canadian human rights, health and drug policy organizations demanded federal ministers issue an exemption in May, in response to the COVID-19 crisis’ impact on the ability of harm reduction sites to operate.
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On Thursday, Toronto MPs announced the beginning of a pilot project to provide a safe supply of opioids in the city. The half a million dollars in funding over 10 months is desperately needed, but didn’t come fast enough, Jason Altenberg, CEO of South Riverdale Community Health said at the news conference.
“We did really well supporting people around COVID itself, but what we saw was those responses made the opioid crisis worse,” Altenberg told reporters. People who use drugs are now more isolated and are facing an increasingly toxic drug supply.
The safer supply program will give people the option to access a reliable, pharmaceutical opioid instead of illicit street drugs.
MP Arif Virani acknowledged the federal Liberal government has not established decriminalization as a policy, and does not have plans to introduce legislation anytime soon.
Watch: B.C.’s premier calls for decriminalization as overdoses peak. Story continues below.
Instead, he pointed to private members bills, such as the one his colleague Nathanial Erskine-Smith tabled last year to push forward overwhelming evidence about decriminalization and how best to address the opioid crisis. He said similar private bills will be pushed forward this fall.
“But can I say where that discussion will land? Not definitively, but I know the fact that the discussion is happening and we’ve moved from taking the proper and correct approach to cannabis to now ensuring there is a safer supply in cities like Toronto is a step in the right direction,” Virani said.
The public prosecutors’ directive is another step in the right direction, but does not go far enough, said Ka Hon Chu. Police still have the power to stop, detain and arrest people for simple possession, which disproportionately impacts Black, Indigenous and People of Colour (BIPOC).
The directive won’t apply to anyone who possesses drugs in the vicinity of children, or who has custody of children, which will also likely disproportionately impact women who use drugs, she said.
These gaps make a straight repeal of the offences and punishment section of the Controlled Drugs and Substances Act far more effective, said Ka Hon Chu. “There are no more excuses from federal policymakers for delay.”