Drug policy is changing in Canada, with Bill C-5 and requests for exemptions under section 56(1) of the Controlled Drugs and Substances Act.
There is a growing acknowledgement in Canada that drug use is a health issue and not a criminal justice problem. This is an important distinction given the way the opioid crisis is ravaging the Canadian population. John Cooper recently wrote an excellent piece for LawNow, which discusses the changing attitude towards drug use and decriminalization. Hopefully, he has convinced you why governments should pursue decriminalization.
I intend to use this space to explore the what and how of decriminalization in Canada. In the process, I hope the who, when, and where will also become clear.
What Does Decriminalization Mean?
When a drug is decriminalized, it means its possession is no longer a criminal act. It does not mean it is legal and anyone can buy it like a pack of cigarettes from a gas station or a bottle of vodka from a liquor store. It also does not mean the government is promoting or condoning its use. More importantly, decriminalization assists those who use drugs, not those who traffic them.
Decriminalization means that users of certain controlled substances will no longer face the criminal penalties they would have before the drug was reclassified. The goal is to reduce the burden on addicts and recreational users, while freeing up scarce justice system resources.
Practically speaking, decriminalization is an exemption from federal laws (those put in place by the Canadian government). The Criminal Code (CC) and the Controlled Drugs and Substances Act (CDSA) govern drug policy in Canada. Created by the federal government, they apply across Canada but are enforced at the provincial and municipal levels, primarily through policing. Offences under the CC and CDSA are also prosecuted through the provincially-run court systems.
Bill C-5: Proposed Federal Action
Canada is attempting to make modest moves towards reducing the criminal consequences of minor drug possession. In December 2021, the federal government introduced Bill C-5 in the legislature. If passed, Bill C-5 will amend both the CC and the CDSA in significant ways. The bill has passed through the House and is now before the Senate.
None of the changes in Bill C-5 will decriminalize any drug in the manner discussed above. Instead, the changes focus on removing certain mandatory minimum sentences for simple drug possession crimes. The changes also encourage conditional sentences and diversionary measures to address substance abuse in more appropriate ways.
Perhaps the most notable part of Bill C-5 in the context of decriminalization is the “declaration of principles” section (10.1), which will be added to the CDSA. This section states, in summary, that:
- substance abuse should be addressed primarily as a health and social issue
- interventions should aim to protect the health, dignity, and human rights of drug users
- criminal sanctions for the personal use of drugs increase the stigma of drug use and are not consistent with established public health evidence
- interventions should focus on the root causes of substances abuse, and measures should be directed towards these areas
- judicial resources should focus on offences that pose a greater risk to public safety
This federal bill does not go as far as some provinces and municipalities have requested. The proposed legislation, however, would alleviate some of the potential criminal justice issues that burden those who use these otherwise controlled substances.
How Does Decriminalization Happen?
The levels of government dealing with the immediate impacts of the opioid crisis – people dying daily – want a drug policy that goes further to address the stigma and health issues associated with drug use. Edmonton, Vancouver, and Toronto have all made requests to the federal government to decriminalize small amounts of substances such as cocaine, heroin, and fentanyl. British Columbia also made a request in November of 2021, and it is the first jurisdiction to receive an exemption.
Section 56(1) Exemptions: Municipal and Provincial Actions
For a city or province to change drug policy in its jurisdiction, it requires an exemption from federal laws under section 56(1) of the CDSA. The Minister of Health and Health Canada grants these exemptions to an individual or a group. They decide on a case-by-case basis. Exemptions have been provided for things like research on the effects of ketamine in treating depression, or as class exemptions to allow pharmacists to provide otherwise controlled substances to their patients. (This was how Methadone was prescribed for a long time, however an exemption is no longer required.)
To receive a section 56(1) exemption, Health Canada considers several factors, including:
- potential benefits
- potential risks or harms
- evidence the substance is necessary for the activity
- safeguards for the use and storage of the substance
B.C. successfully attained an exemption by providing evidence of the severity of the opioid crisis, as well as the province’s capacity to deal with decriminalization. Health Canada accepted B.C.’s plan, which included that:
- adequate social supports would be available to drug users
- law enforcement was properly trained to educate those possessing controlled substances on how to access these resources, and
- B.C. has a comprehensive monitoring system that will allow it to provide ongoing feedback about the impacts of decriminalization in real time.
What Does Decriminalization Look Like on the Ground?
In B.C., adults over the age of 18 will no longer face criminal penalties if police find them with less than 2.5 grams of any opioid, cocaine, methamphetamine, or MDMA (or any combined quantity of these four drugs). These four drugs are the ones deemed most likely to be associated with the ongoing opioid crisis.
The exemption will not apply if there is evidence the adult is using the drugs for more than personal use. It must be stressed that decriminalization in this form does nothing to shield drug traffickers. Law enforcement agents will make these determinations. They will also be trained to provide individual users with information regarding social services and health initiatives to address the underlying issues that cause substance abuse.
No one is suggesting that we turn a blind eye towards the use of controlled substances. Instead, the focus is on acknowledging that drug users are people with health issues that have already upended their lives. Rather than defaulting to prison and punishment, decriminalization initiatives allow drug users to operate with one less fear hovering over their head – that they are going to get “busted” – while also promoting ways for them to recover from their health issues.
It is unclear whether the B.C. model will apply, in its specifics at least, to any of the other jurisdictions that have requested a section 56(1) exemption. It is not even clear whether Edmonton or Toronto will receive this exemption – Health Canada must decide if these locales have met the requirements. The B.C. model does show the potential that decriminalization may hold. And if nothing else, the individuals dependent on these substances in that province will have one less concern.
More to Come
Both Bill C-5 and the requested section 56(1) exemptions suggest Canada may be on its way to a more progressive drug policy, which understands the drug user’s struggle as its starting point. There is likely much more to come on this topic in the coming months and years.
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The information in this article was correct at time of publishing. The law may have changed since then. The views expressed in this article are those of the author and do not necessarily reflect the views of LawNow or the Centre for Public Legal Education Alberta.
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