After decades of campaigning, the decriminalization of all drugs for personal use in Canada finally feels just around the corner.
On August 17, a set of guidelines issued by the Public Prosecution Service of Canada (PPSC) called on prosecutors to pursue non-criminal sanctions for simple drug possession. They noted plainly:
“Criminal sanctions, as a primary response, have limited effectiveness as (i) specific or general deterrents and (ii) as a means of addressing the public safety concerns when considering the harmful effects of criminal records and short periods of incarceration.”
Tragic increases in overdose deaths amid the pandemic, particularly in British Columbia and Ontario—together with growing calls, amid racial justice protests, to prioritize health and human rights over criminalization—can no longer be ignored.
Decriminalization is a bold idea—one seemingly too progressive for the Liberal Party of Canada, which leads a minority government that remains opposed. But we are rapidly approaching a tipping-point.
The PPSC’s announcement was praised in the media as an essential step toward decriminalization. But experts and advocates are wary of the guidelines’ limitations. Sandra Ka Hon Chu, director of research and advocacy at the Canadian HIV/AIDS Legal Network, cautions about the discretion that police and prosecutors will retain. Speaking to Filter, she encouraged us to ask critical questions.
“Will police continue to surveil, harass and charge people?” she asked. “Will the requirement to continue to pursue charges for those who ‘possess in the vicinity of children’ or those with ‘statutory authority over children’ disproportionately fall on women who use drugs? Or will the requirement to continue to pursue charges against people in detention largely fall on Indigenous and Black people, who are both grossly overrepresented in our prison system and disproportionately marginalized by repressive drug laws?”
Can full decriminalization become politically viable in Canada?
Despite these critical reservations—and the fact that the guidelines still entail civil penalties, like fines, for simple possession—the unprecedented announcement speaks loudly to an urgent question: Can full decriminalization become politically viable in Canada?
The PPSC is the latest of several historically unsupportive institutions to acknowledge the futility of criminalizing drug use in recent months. These have included the Canadian Association of Chiefs of Police (CACP)—the second of the two primary professions based on criminalizing people—and certain mainstream media outlets.
These developments follow several years of shifting ground. Since 2017, public health agencies and authorities, and a range of local, provincial and national groups, have all taken strong stances in favour of decriminalization and treating substance use as a health and human rights issue.
Political support has been evident among certain actors for some time. But more is needed—and it will continue to be garnered as the public increasingly demands a culture of care over violent and ineffective punishment.
The decriminalization movement has been propelled by new collective understandings of the racist, costly and deadly failings of the criminal justice system. As calls to defund or abolish the police grow, it is inevitable that police will ultimately have to stand down from the drug war. It’s just a matter of how.
Through current debates on policing, society is finally coming to realize that the heavy-handed approach of the criminal-legal system is ineffective and built off racist and colonial ideologies—and that we can imagine better alternatives. There is clearly an appetite for this shift, with 51 percent of Canadians polled in July in favor of defunding the police—a sharp increase. Younger age groups are the most enthusiastic.
It is probable—although we must not take it for granted—that decriminalization will follow a similar trajectory.
A similar shift in public opinion preceded Canada’s legalization of cannabis. In 2004, support for legalization also polled at 51 percent. That reached 66 percent by 2012, holding steady at 65 percent in 2015. By then, after years of sustained advocacy, cannabis legalization was deemed politically viable. Political leaders promised legalization, and the Cannabis Act ultimately became law in June 2018, legalizing throughout Canada.
It is probable—although we must not take it for granted—that decriminalization of all substances will follow a similar trajectory. Polls completed in January registered 47 percent support. That number will surely be much higher now, given widespread advocacy and Canadians’ cultural shift around law enforcement and criminalization. When Dr. Teresa Tam, Canada’s Chief Health Officer, affirmed in late August that Canada should be “moving towards a societal discussion on decriminalization,” it reflected the mainstreaming of this issue.
This change has been propelled by the COVID-19 pandemic, which has both impacted overdose deaths and shown what government can rapidly achieve—if there is political will. Liberal Member of Parliament Nathaniel Erskine-Smith, a vocal advocate for decriminalization who has already submitted two Private Members Bills to this effect, described this impetus to Filter.
“The COVID crisis has both exacerbated the tragic opioid-related death toll and shown us that governments can act quickly to respond to a health crisis,” he said. “We need to bring the same seriousness to the opioid crisis that we’ve brought through our COVID response.”
MP Nathaniel Erskine-Smith. Photo by Bernard Thibodeau, House of Commons Photo Services/Public Domain
Historically, this seriousness has been lacking. Reports dating back to 1970 have recommended decriminalization, yet been shelved and disregarded. Yet the current context is ripe for governments to break this habit.
While terms like “decriminalization” and “systemic racism” are appearing in more and more officials’ vocabularies, don’t underestimate the impact of economic arguments on the political establishment. The tremendous costs and revenue shortfalls incurred by the pandemic can only invite closer scrutiny of the billions of public dollars Canada currently spends on enforcing drug laws.
Altogether, while the PPSC guidelines do not represent true decriminalization, it seems that we are closer to it than we have ever been.
Chu was one of the organizers of a recent letter calling for federal decriminalization, which was signed by many reputable Canadian organizations. She may not be convinced that this policy change is inevitable, but noted that “federal politicians are no longer saying “not now.”
“While they have not yet committed to decriminalizing,” she noted, “they have not shut the door on it either, especially after the CACP released its report.”
Despite the rising tide, the Canadian Federal Government has so far maintained its stance on decriminalization. A representative of Health Canada reiterated the government’s position, telling Filter that: “The health and safety of Canadians is the Government of Canada’s priority and Health Canada is fully committed to addressing problematic substance use as a Public Health issue,” but that “[t]he Government is not considering the decriminalization or legalization of illegal drugs at this time.”
This self-contradictory line has been maintained for some time. In January, Federal Minister of Health Patty Hadju referred to decriminalization as “premature … until we get to the place where we have comprehensive support…” Prime Minister Justin Trudeau has also stated that decriminalization “is [not] the solution to the opioid crisis, and other solutions need a chance.”
“I do believe the conversation is moving forward quickly and that it’s only a matter of time.”
The position has shown signs of crumbling, however. In July, the Federal Minister of Health, Federal Minister of Justice and Attorney General noted that they “welcome the call … to decriminalize drugs for simple possession,” citing the statement from the CAPC.
Erskine-Smith sees this as positive but not conclusive. “I don’t believe national decriminalization is imminent,” he told Filter. “But I do believe the conversation is moving forward quickly and that it’s only a matter of time.”
Erskine-Smith is acutely aware of one considerable roadblock: Stigmatizing people who use drugs has also been politically viable. “Every person who has thought seriously about the issue of prohibition has come to the realization that it is an ineffective policy and that we need a new evidence-based approach,” he said.
But he acknowledged that political decisions are too often not driven by the evidence. “The only real opponent to decriminalization is an irrational fear of people who use drugs and the willingness of some politicians and commentators to play upon those fears with misinformation.”
Misinformation and misunderstanding will continue to be used as tools by “opponents” of decriminalization, Chu said, as will “stigma against people who use drugs.”
Despite this age-old strategy, Canada has seen considerable advances toward a safer supply of drugs, particularly during the pandemic. These wins, which are related to, but distinct from, decriminalization, are also crucial, as Chu emphasizes.
“Decriminalization is not a panacea for all the harms of repressive drug policy,” she said. But “it’s an important step for the state to acknowledge that people who use drugs should not be treated as ‘criminals’ and to remove one tool of police repression, directed disproportionately at Black and Indigenous communities.”
The two dominant events of a never-to-be-forgotten year—the pandemic and our racial justice reckoning—have respectively shown that government can move fast, and that people will no longer accept empty rhetoric about change.
For drug policy, that means no more shelved reports and lip-service to a health approach. It means decriminalization—real decriminalization. For a society that has already experienced so much needless grief, the question is not if, but when.
Photograph of Canadian parliament building by Matthew Bonn