Federal government’s new legislation on diverting minor drug offences does not go far enough

Canada is in the grips of a deadly overdose epidemic. In 2020, more people in British Columbia died of drug overdoses than car crashes, homicides, and suicides combined. In January of this year, Toronto set a record for the highest number of opioid overdose-related deaths reported by paramedics.

Since 2016, almost 20,000 Canadians have died of opioid overdoses — and the death rates are increasing.

This is the context in which the federal government introduced legislation to encourage the diversion of minor drug offences from the criminal justice system.

After the introduction of the new bill, I spoke with Tanya, who buried her brother on what would have been his 35th birthday. Although he lived around the corner from a hospital, he died of a drug overdose.

Despite the lofty rhetoric, the government’s new legislation would not have saved Tanya’s brother’s life — but full decriminalization might have.

There are some positive aspects of the new legislation. It is a breath of fresh air to finally have some positive comments about a justice bill. But, no one should be hanging up the “Mission Accomplished” banner — especially when it comes to the government’s response to the criminalization of addiction and drugs.

But first, credit where credit is due for some positive steps.

Bill C-22 would repeal a dozen mandatory minimum penalties — a very positive first step forward in sentencing policy. But the new legislation does not remove all minimum sentences from the Criminal Code. It doesn’t even remove all the minimum sentences that have been found by courts to be unconstitutional.

The new legislation also expands the availability of conditional sentences, an important tool in reducing rates of needless incarceration, by reversing the restrictions imposed by the previous Conservative government. The new legislation is progressive because it rolls back the clock, a true example of taking one step forward by taking two steps back.

But then we get to the troubling drug diversion sections of the bill, which fall well short of the needed drug policy course correction.

At the press conference announcing the details of the new legislation, federal Justice Minister David Lametti said that the government and Canadians accept that addiction is a health problem as opposed to a criminal justice problem.

Ahmed Hussen, Minister of Families, Children and Social Development, agreed with Lametti, saying “we know that the criminal justice system is a very poor substitute for a social services [sic].”

Even the minister of public safety and former undercover drug cop Bill Blair, who once boasted that he had "bought drugs in just about every housing project in Toronto,” recognized the harms of the criminalization of addition. “I also want to speak to another very important measure of this bill,” Blair said, recognizing the unfolding overdose tragedy in agreeing with Lametti that, “possession of drugs is not as an act of criminality.”

And then Lametti, seemingly blind to fact that it is the criminalization of drugs itself that is actually causes harm, explained how the government was leaving drug possession offences in the Criminal Code — the new legislation rejects decriminalization in favour of potential police and prosecutorial diversion.

Bill C-22 requires police officers consider diversion, but explicitly declines to impose any consequences if a police officer refuses to do so. The bill also encourages prosecutors to consider diversion for minor drug offences, a measure which the DPP already imposed on federal prosecutors last year through a policy directive.

So, Bill C-22 does not actually change very much, and it certainly does not remove addiction and low-level drug crimes from the Criminal Code — it does the opposite — now the Criminal Code is a fully sanctioned gateway to treatment.

It is indeed incongruous that legislation designed to combat systemic racism gives police officers unfettered and unaccountable discretion to divert drug charges. We have, after all, seen how police have used discretion — carding, marijuana arrests, traffic stops — spoiler alert, the colour of your skin matters.

If history is any guide, and it should be given that most police forces are reluctant to acknowledge the existence of systemic racism, racialized and marginalized groups will be cut less slack and diverted from the criminal justice system less frequently by the cops.

Experts agree that using the criminal justice system to deliver diversion and treatment drives drug use underground, creates dangerous situations, continues unjust stigmatization, and gets in the way of treatment.

Post-charge diversion also means that criminal charges can hang like a dark cloud over an accused person’s head.

This causes real harm and in cases like Tanya’s brother, who was denied a spot treatment because he had outstanding charges, can lead to preventable deaths.

Decriminalization could have saved Tanya’s brother’s life; Bill C-22 provides little help.

And Lametti was silent on just where people would be diverted to? There is an acute shortage of treatment and harm reduction options. Lametti made vague promises of more money, at some point in the future, for treatment. But that does little good for people who need help now.

Lametti was asked about the disconnect between the broad principles he seems to accept and the diversion measures in the new legislation. He answered to the tired tune of incrementalism — this is a step in the right direction.

The problem is that people don’t live incremental lives and they are not dying incremental deaths. The harms of continued criminalization are real, and they are impacting people now.

Canadian police chiefs are calling for decriminalization, experts are calling for decriminalization, and people addicted to drugs are begging for treatment and decriminalization.

Even the government seems to recognize that addiction should not be in the Criminal Code.

So, why is it?