Drug Decriminalization in Canada - Maddy Ackermann

In October 2018, Canada became the second country in the world (after Uruguay) to legalize non-edible recreational cannabis. Every other drug in Canada is currently criminalized. Legalization and decriminalization are two different things. Decriminalization is allowing the personal possession of drugs with minimal fines or other sanctions (such as rehab), while still penalizing the production, trafficking, and sale of drugs. Legalization is the ending of sanctions against the production, sale, trafficking and consumption of drugs. While taking the bold step of legalizing marijuana, Canada has not joined the thirty some countries that have decriminalized drugs in some form. Some of these countries include Portugal, Mexico, the Netherlands, Columbia, and several states in the United States, including California, Colorado, and Illinois. The results of the decriminalization of drugs in these countries have been met with varying success, depending on the methods the countries have pursued, the level of decriminalization, and the commitment to the measures. Canada has the resources and ability to decriminalize drugs and, if done so properly, can save lives and money.

The War on Drugs

Enforcing the criminalization of drugs is expensive - worldwide, it is estimated that $100 billion a year is spent on drug enforcement; most involve low-level and nonviolent drug offences. An estimated 83% of all offences regarding drugs are petty possession offences. In 1969, U.S. President Richard Nixon’s administration partnered with the non-profit Advertising Council for “a national, coordinated ‘one voice’ educational program” to combat drugs in the United States. And so the current War on Drugs was born. Before Nixon’s campaign, the issue of drugs was not on the forefront of anyone’s mind. And while focused on the United States, the War on Drugs propaganda started influencing the rest of the world, and other countries started to see drugs as a growing problem within their society.

The Nixon Administration’s stated goal was to make the country safer; historians see this war as a political strategy used to engage white, suburban voters and to generate panic around the country. They manipulated the white middle class into seeing drugs as a black, ghetto, and poor issue. And the administration was successful. The general public became fearful, electing Nixon partially based on his promise to address the drug ‘pandemic’. This resulted in aggressive crime fighting measures such as no-knock warrants, pre-trial detention, wiretaps, stop and frisks, and police strike forces.

These measures targeted black and poverty-stricken communities disproportionately - and intentionally. In 2016, a statement made by John Ehrlichman, who was part of the Nixon Administration, surfaced:

The Nixon campaign in 1968, and the Nixon White House after that, had two enemies: the antiwar left and black people. . . . We knew we couldn’t make it illegal to be either against the war or black, but by getting the public to associate hippies with marijuana and blacks with heroin, then criminalizing both heavily, we could disrupt those communities. We could arrest their leaders, raid their homes, break up their meetings, and vilify them night after night on the evening news. Did we know we were lying about drugs? Of course we did.

The administration divided groups of people and shoved minorities under the bus while doing so. The disproportionate effect on visible minorities, specifically black people, the Nixon Administration had in the 1970s is still seen today all over the world. Today, drug laws are often enforced more strictly against minorities despite the rate of drug use being no higher than in the white population.

Canada is no different; black and indigenous people are incarcerated at a far greater rate than white people. In 2010-2011, black inmates accounted for 9% of the federal prison population, while only making up 2.5% of Canada’s overall population. Similarly, Aboriginal people (including First Nations, Metis and Inuit) made up 21.5% of the federally incarcerated population and only 3.8% of the Canadian population.

The Canadian version of the American War on Drugs was fully initiated in 1982, with legislation enacted in 1988 and 1989 banning the sale of drug paraphernalia and strengthening the police power to seize the possessions of arrested drug dealers. In 1995 the Controlled Drugs and Substances Act (“the CDSA”) was enacted, which widened police powers of arrest, search and seizure, and increased the maximum sentence for drug offences of any kind. In 2008, 70% of the budget for Canada’s drug strategy was directed at law enforcement rather than treatment, education and prevention.

In 2016, the United Nations Office on Drugs and Crime released the outcome of the general assembly on the worldwide drug problem. The document recognized drug addiction as a complex problem and expressed the importance of funding going towards treatment and education. It also emphasized the need to strengthen disciplinary measures at all levels of government to prevent drug related crime. This document, when read completely, demonstrates the still controversial topic of drug use and at times conflicting views on how to address the problem.

Decriminalization around the world

There are several different levels of the decriminalization of drugs. One level is the threshold approach. A country that adopts this approach determines the amount of a certain drug that one is allowed to possess while still being legal. There are also several responses available in regards to drug possession. One response is simply no response. The Netherlands uses this policy, where anyone caught in possession of a drug for personal use receives no sanction. Other responses include fines or administrative penalties, treatment, and administrative detention. There are also different options for who will determine whether someone is in possession of drugs for personal use and the course of action following the possession, including the police, prosecutors, or a judge.

Countries that have decriminalized some or all drugs have been met with varying levels of success. One of the more famous examples of success has been Portugal. In 2001, Portugal decriminalised all drug use and possession, which shocked the media and governments worldwide. The newly elected assembly took the view that drug users were to be considered full members of society and not criminals or pariahs; the goal was not to achieve zero drug use but instead to improve all aspects of society. Portugal implemented thirteen strategic methods including: the decriminalization of drug use, expansion of quality healthcare, improved access to treatment, expansion of harm reduction policies (such as syringe exchange), and the guarantee of available voluntary treatment. Under the new law, if police find someone with up to ten days of drug doses for personal use, the person will not be arrested. Instead, they will be issued a citation referring them to a special committee known as a ‘dissuasion commission’ which is made up of medical experts, social workers, and legal professionals. Non-dependant, first time offenders are usually given no sanctions, while repeating individuals will work with the committee to respond to their individual needs. Such sanctions include regular meetings with the panel, community service, suspension of their driver’s license, and the open availability of a treatment center. Rehab is never forced but always available. The main goal of the committees is to prevent addicts and users from stigma and criminal proceedings, which then helps to eliminate the hurdle to treatment. Those found with more than ten days of personal supply are taken to criminal court and can be charged with drug trafficking or criminal consumption.

These measures by Portugal have resulted in several successes. Drug use has grown in many European Union countries while use in Portugal has decreased or increased only slightly, depending on the drug. Portugal has also reported an increase in people pursuing treatment and lower rates of drug related diseases such as HIV and AIDS, HCV, and tuberculosis. Drug related deaths have also decreased from 400 in 1999 to 260 in 2006. There has also been a reduction in the prison population, resulting in financial savings for both the court and prison systems. Such savings are directed towards other aspects of the criminal justice system and towards drug treatment facilities.

Mexico has also decriminalized drugs to some extent. Before 1940, drug use in Mexico was legal, and addicts were considered sick and needed treatment, rather than criminals who needed incarceration. By the 1970s, the War on Drugs in the United States influenced Mexico, and possession, trafficking, and use were all made illegal. In the early 2000s, drug trafficking was rampant, with drug related homicides higher than ever and increased violent conflict between traffickers and law enforcement. In 2009, Mexico made amendments to the General Health Law to refocus law enforcement priorities regarding trafficking and small-scale drug dealings. The amendment also decriminalized the possession of small amounts of drugs. Those caught with possession of drugs under the threshold amount are supposed to be encouraged to seek treatment, and if caught three times treatment becomes mandatory. If they refuse to participate in treatment or are in possession of amounts above the legal limit, they are subject to criminal prosecution.

The threshold for possession is incredibly low and even those who are in possession for personal use are often prosecuted. Even those below the threshold continue to be detained, potentially due to the combination of poor knowledge of the law and police corruption. Violence between traffickers and law enforcement has only increased since the General Health Law, police corruption is greater than ever before, use of drugs have increased exponentially, disease related to drug use such as HIV and hepatitis B and C is up, and incarceration rates continue to grow. From 2011 to 2013, incarceration for drug crimes at the federal level increased from 7% to 19%.

Mexico had the right intentions with the wrong application. The new acts in 2009 allowed law enforcement to focus their efforts on traffickers instead of users, with a secondary objective of treatment and lower incarceration rates. The amendment did not protect users’ rights and did not expand the public health system. Portugal, in contrast, focused their act on public health and treatment, looking at the individual to fix the system, rather than trying to fix the system to fix the individual.

Other countries have been met with varying success on drug decriminalization. Most recently, the state of Oregon voted in 2020 to decriminalize drugs. However, the common thread is that decriminalization of drugs has not been the disaster that was predicted. Decriminalization has not increased drug use tenfold in the countries that have implemented such systems.

Decriminalizing drug use in Canada

When marijuana was legalized across Canada in 2018, the Federal Government emphasised three key goals:

• the protection of public health;

• protection of youth; and

• reducing the criminality associated with marijuana.

According to Statistics Canada in 2019, the legalization of cannabis contributed to $8.26 billion to Canada’s economy while accounting for 9,200 people working in the sector.

The goal of social justice and equity that was attached to the Cannabis Act (“the Act”) has not been met in several ways. The Act did not address the criminal records of people from selling or possession of marijuana. New legislation, Bill C-93, attempted to expedite the process and remove any cost-barriers from clearing the criminal records. Unfortunately, in 2019, more than 500,000 still had their criminal records, along with the stigma arising from them - many of whom are black or indigenous.

The Act also failed to ensure those that have been disproportionately impacted by the enforcement of marijuana use were provided an opportunity to participate in the legal industry. There was also no portion of the revenue generated from legal sales allocated back to impacted communities. While these measures would be considered to be “going the extra mile”, Massachusetts in the United States established similar equity programs to much success and provided an example to future states and countries on how to navigate the legalization of cannabis.

As Canada was only the second to legalize recreational use of cannabis, many of the flaws can be excused as Canada continues to improve on the social justice and equity aspects. Other countries in the future can look towards Canada when assessing the legalization of cannabis and the steps required.

Every other drug in Canada is still criminalized and enforced under both the Criminal Code of Canada (“the Code”) and the CDSA. Canada has been experimenting with alternative measures of sanctions aside from prison. Drug Treatment Courts (“DTC”) are an alternative available towards an accused rather than the traditional court system. These courts have been met with mixed reviews. DTCs soften the harshness of a traditional prison system but are still coercive by forcing treatment on people. Non-consensual drug treatment has been proven to be ineffective, resulting in higher relapse rates. Additionally, drug use is still treated as a criminal offence with a stigma attached, rather than a public health issue. Addicts and users are still seen as criminals rather than ill.

Canada v PHS (Insite) (“Insite”), a 2011 decision of the Supreme Court of Canada (“the Court”) was a case regarding a safe injection site in Vancouver’s Downtown East Side, Insite. Insite provided supervised injection sites for users, saving lives and improving the health of users without increasing the incidence of drug use or crime in the area. When threatened to be shut down, the Court ordered the minister of health to grant Insite an exception under section 56 of the CDSA. Insite did not open the doors towards safe injection sites but did not preclude the possibility in the future. The judgment did demonstrate the courts’ understanding of drug addiction and the importance of Insite and also opened the door to a more inclusive consideration both towards drugs as well as disadvantaged citizens. Insite is hopeful with regards to the changing views of drug use and addiction in Canada. Only time will tell the repercussions and applications of such a landmark decision.

COVID-19 has also put added pressure on the federal government regarding drug decriminalization. COVID-19 has disrupted drug supply chains, resulting in a more toxic supply. The pandemic has also lessened support for users and has resulted in people using alone, increasing risk of overdose and other related incidents. Vancouver has asked the federal government for an exception from parts of the CDSA by decriminalizing possession of small amounts of drugs within the city boundaries. Public pressure has been mounting in Canada as more and more health experts argue that decriminalization would decrease the health risks associated with drug use.

In their Canadian book Off the Street: Legalizing Drugs, W.A Bogart and Sukanya Pillay argue that decriminalizing drugs is not enough; Canada must make the move sooner rather than later to legalize drug use. They compare the illegality of drug use to the alcohol prohibition in the 1920s. While less people drank, many still did, and the prohibition resulted in smuggling, illegal markets, and extortion. These illegal methods then resulted in corruption, violence, and other illegal and dangerous acts. Keeping drugs criminalized, or even decriminalizing them, does nothing to regulate the drug production and trafficking market. Without regulation, drugs can be tainted and poisoned and thus far more dangerous than if there was an overarching authority.

In 2011 in Canada, 21% of offenders were doing time in prison for a drug related offence. 55% of people in federal prisons had a substance abuse problem, and programs to address substance abuse issues in prison have continually had their budget cut. Such criminalization in Canada has also only continued the status quo of systemic racism, with visible minorities being imprisoned at a rate far more frequently than white people, regardless of criminal records.

Bogart and Pillay argue that legalizing drugs, not just decriminalizing them, is needed to blunt the illegal market. Decriminalization does nothing to address how drugs are bought and sold, while legalizing and regulating drugs allows the government to regulate drugs and protect its citizens. The resources used for enforcement can then be funnelled into counselling and treatment for drug users and addicts. This strategy would be based on acceptance, not approval, of drug use, while erasing the stigma of ‘criminal’ and ‘addict’ that people face from drug use.

Drug decriminalization a necessary next step

This is a bold claim by Bogart and Pillay, and probably too much for Canada to consider at the moment. Criminalization of drugs affects visible minorities a disproportionate amount. Valuable time and resources are used to police drug use that could be used to help users recover and improve their health. Canada made a progressive step towards the stigma of drugs when the federal government legalized cannabis. The next step is for Canada to decriminalize all drugs.