Bill C-235 (Historical)

Ending of the Stigma of Substance Use Act

An Act to amend the Controlled Drugs and Substances Act and to make consequential amendments to other Acts

This enactment amends the Controlled Drugs and Substances Act to repeal a provision that makes it an offence to possess certain substances.
It also makes consequential amendments to other Acts.

Criminal Code and Controlled Drugs and Substances Act

[Tom Kmiec, Conservative, Calgary Shepard, AB]

Never again? Never say never again here, from the other side.

Madam Speaker, that was on Bill C-235, which Mr. Bagnell tabled in the House. We had a second reading vote on his private member's bill. Fifteen Conservatives voted with him. I was one of them, because I thought an assessment order for those with fetal alcohol syndrome should get them some type of special treatment in the courts and judges should be directed to look at that during sentencing. It was an assessment in that case that I thought was perfectly reasonable.

If we look at my voting record on other bills, members will realize that I am willing to look at bills as they come forward and judge them on the merits of their content, not the aspirations placed behind them. Judges do not look at the aspirational language we use in this place to describe bills.

I have heard members say this bill would help indigenous or Black Canadians get the type of treatment they deserve in the court system so they are not overly given harsh criminal sentences, but the words “race”, "racism" and "systemic racism" are not in this bill. Another member mentioned, aspirationally, that the bill would help to stop minorities from being overly sentenced harshly by the judicial system, but I do not see those words. The Liberals could have introduced an assessment order and a requirement for judges to consider that.

On that point, Liberal members have asked several times if we do not trust judges. Of course we trust judges. The government appoints them to sit on the bench and render decisions on behalf of Canadians. They are supposed to look at both sides, those of the offender and the victim, and determine what outcome would be fair and just for society while including an opportunity for rehabilitation and a punishment that would fit the crime, to ensure that victims also feel that justice has been served in their case.

The Liberals talk about judicial discretion. How do they feel about the discretion of the Attorney General of Canada or those of the provinces? I wonder how Jody Wilson-Raybould would feel right now when we are talking about the discretion of judges. It was the current government, on the opposite side, that got itself involved in a criminal proceeding for favouring a particular party, so how does it feel about attorney generals using their discretion in the pursuit of justice?

I think it is hypocritical of government members to be talking about judicial discretion and the ability of judges to determine a proper sentence. We do not talk about attorneys general who give direction to prosecutors. In this caucus, we have several prosecutors on our side who have actually gone through this and used these sections of the Criminal Code to sentence people.

Many of our comments probably echo the member for St. Albert—Edmonton's terrific verbal dissertation on the merits of the bill's contents. However, I thought it remarkable that one of the offences that is being rolled back in the bill is the production and manufacturing of schedule I drugs, including hard drugs such as cocaine, heroin, fentanyl and crystal meth.

I live in a suburban community that is made up entirely of single-family detached homes, mostly next to a hospital. Just a few years ago, a fentanyl lab was found in my own community in one of the homes closest to Deerfoot Trail. I think two million or three million pills were found, including pill presses. This has been a common story in Calgary. These pill press mills are being found in residential neighbourhoods. In the past six years, this sleepy, suburban community also had two murders committed in it. One of these, if I remember correctly, was connected to the drug trade. Again, this is happening in all of our communities across Canada. We see the daily numbers of opioid deaths, and I entirely agree that it is a crisis.

However, again, the way in which the bill is being framed does not match the contents of the bill. What I see in the bill is a kind of softening of the minimum we can set for people who commit crimes such as robbery with a firearm or kidnapping, which are things that most of my constituents think is absolutely wrong.

Before I get accused of not caring about those who wind up in the prison system, in my riding we have the historic Ogden Hotel, which has been there for almost a century. A CP is located right next to it, and it is one of Calgary's original hotels. This is where Pastor Delaney runs the Victory Foundation for the church: It helps men who are getting out of the prison system to get back on their feet, find jobs and get some training and education.

I have had coffee there with people out of the prison system who are trying to get their lives back on track. I have a beautiful painting in my house from a gentleman who was homeless. He wound up in the judicial system and was charged, but I call him an expert painter from Calgary. He made a beautiful painting of an elk being attacked by a cougar, and he was helped by the Victory Foundation. I have met and interacted with these men and tried to better understand what they go through. Many of them will tell us that they wronged someone and that they have to right the wrong at some point.

There are two sides to the debate we are having here. Where is the voice of the victims who want to see fairness in the judicial system? If we are going to talk about judicial discretion, we have to talk about attorneys general being able to direct prosecutors to actually pursue these cases as well. Also, we set the box within which judges are supposed to rule, and the box shows what the minimum is, what the maximum is and what is reasonable in between.

A member on our side mentioned that it is an expectation of Canadians that a crime committed in eastern Canada, for example in Montreal on the south shore in beautiful Brossard, in the B section where I lived for part of my life, would be treated the same way if it was committed in downtown Calgary. The same crime would be looked at by judges in the same way and would be given a similar type of sentence. We say that every case is different and every case has particular circumstances to it, but that is what we are asked to do here. I am not a lawyer by profession, so I am unburdened by a legal education and can just give a layman's interpretation of what the judicial system should look like. I consider that a bonus, but maybe some lawyers do not.

Before I forget, I have a Yiddish proverb for members to consider: “When you sweep the house, you find everything.” As I have gone through the bill, I have mentioned the fundamental aspects of the judicial system here. As I am sweeping across the bill, I look for those terms that have been mentioned by members aspirationally hoping that it would achieve the goals of not having offenders judged solely by immutable characteristics such as race, but only on the merits of their particular cases. That is a concept that I agree with, but it is not in the bill. There is no assessment order. The government could have taken an idea from our former colleague Larry Bagnell and applied it to the particular thing that they truly care about.

I cannot see how I can support this type of bill. This is the same thing as Bill C-22 in the last Parliament, and government members knew we would not support this type of legislation. They had an opportunity to fix it, but they chose not to take it. Between tabling Bill C-22 and the return of this Parliament, they lost the opportunity to find some type of consensus in the House on producing a bill to help Canadians and to help victims of serious crimes.

Controlled Drugs and Substances Act

[Randall Garrison, NDP, Esquimalt—Saanich—Sooke, BC]

Madam Speaker, this is a timely debate, as I think all members of Parliament recognize. We are not only in a pandemic, but we are also in an ongoing overdose crisis that has been made even worse by the pandemic. In Canada, we have had over 16,000 overdose deaths since 2016. In my own community on southern Vancouver Island, there have been more than 449 overdose deaths since 2016.

This represents an enormous toll on families in my riding. Families have lost loved ones, be they fathers, mothers, siblings or children. Here is the kicker: on the south island, during this pandemic, the number of deaths from overdoses has nearly doubled this year over last. I know that the same pattern has been occurring across the country.

Without a doubt, there is a pressing need to address the overdose crisis. I acknowledge the member for Beaches—East York for trying to suggest ways for the House to grapple with this problem. The bill we have in front of us today is, in fact, one of two bills put on the Order Paper by the member for Beaches—East York. As I remarked, I have some trouble understanding why he has chosen this bill, rather than the other bill.

The other bill I am talking about is Bill C-235, which would address the overdose crisis directly by decriminalizing the possession of small amounts of prohibited drugs for personal use, thus shifting our response from punishment to harm reduction for addiction: something that is clearly a health problem or a medical condition.

In fact, as I mentioned earlier, the member for Beaches—East York just gave a very eloquent speech in support of his other bill, Bill C-235. He laid out all the reasons in his speech for decriminalization. Unfortunately, he has decided to proceed with the other bill, which completely misses the mark as a response to this crisis.

I will come back to the details of Bill C-236 in a moment, but first I want to stress how happy New Democrats would be to support his first bill instead. Personally, I have been a supporter of the decriminalization of drugs for decades, including during the whole time I taught criminal justice at the post-secondary level.

I first publicly called for decriminalization as a city counsellor in Esquimalt. When I did this, we were beginning to recognize the extent of the overdose crisis. At that time, some questioned why a city counsellor would be dealing with this question. My answer was simple. When members of our communities are dying unnecessary deaths, deaths that scar our communities, why would we not take the path to reducing these losses when the path is so clear?

Former NDP MP Libby Davies was an early and strong supporter of decriminalization in the House. She made her position very clear in 2013, when the Harper government was seeking to shut down Insite, which at the time was the only safe injection site in Canada.

At the NDP convention in 2018, delegates passed a resolution calling for an end to criminalization of personal possession of drugs. I am proud that my party was the first Canadian party to include decriminalization in our election platform. We desperately need a bill to do this, but Bill C-236 is not that bill.

Instead, we have a bill that only proposes alternatives to charging people for possession, something that is, in fact, already the practice in most jurisdictions. To me, it seems to be a waste of the House's time and efforts to focus on something like Bill C-236, and diversion from charges, when the simple solution is to end charging altogether by ending criminalization of personal possession of drugs.

This bill does nothing to help persons struggling with addiction get the help they need without fear of arrest. It is still there. Nor does it touch on the real criminals: those who traffic and profit from the addictions of others in our communities. The absence of federal leadership on this issue has led to repeated pleas for help from mayors and premiers.

This past July, Premier Horgan of British Columbia wrote to the Prime Minister, asking that the government decriminalize personal possession of drugs. Just a few days ago, I spoke with Vancouver mayor and former MP Kennedy Stewart, whose frustration with the lack of federal action on the opioid crisis caused him to strike out on an innovative plan.

He has requested by letter a federal exemption from the Controlled Drugs and Substances Act to decriminalize illicit drugs within the City of Vancouver's boundaries so that the City can properly address the public health concerns caused by the opioid crisis. His resolution cites a number of factors in favour of decriminalization. Many of the same ones were mentioned in the speech by the member for Beaches—East York.

Mayor Stewart begins by citing the very high number of deaths in Vancouver from overdoses. He also cites how COVID makes the overdose crisis worse by further isolating drug users within the community, by limiting access to harm reduction services and, as we have seen most recently, by the increasing toxicity of the drug supply on the streets.

He cited the support of the Canadian Association of Chiefs of Police. He cited the support of the B.C. provincial health officer, Dr. Bonnie Henry. He cited the support of organizations such as the Pivot Legal Society in Vancouver and the Canadian HIV/AIDS Legal Network. He also made a final point, which I think is worthy of us noting in the House, that decriminalization is a way to address the overdose crisis, but it is also an important part of any program to address the systemic racism in our justice system.

Why is Bill C-236 so weak? It is described as an evidence-based diversion framework. We already have that in practice, as I said, in most jurisdictions. It will do nothing for the person who eventually refuses any of those alternatives because they will still end up charged and will still end up with a criminal record for drug possession.

There are also some technical problems with the bill. I am still a recovering criminal justice instructor. I doubt that the bill could actually be applied in British Columba, Quebec or New Brunswick, because the bill is modelled on the Ontario system, where the police lay charges. In those three provinces, the police do not lay charges. I wonder whether the bill has actually taken into account the reality of British Columbia, Quebec and New Brunswick. I do not think that it has.

The bill seeks to reduce the criminalization of drug users through diversion from charges, something which, again, is already taking place in most jurisdictions. The simple solution is right before our eyes. Here is what New Democrats have been calling for to meet the challenges of this other epidemic. These are measures based on sound, evidence-based health policy. We have five things that we say Canadians need.

Canadians need, right now, a national declaration of a public health emergency on the opioid crisis. Canadians need federal funding and stable funding for overdose prevention sites. Canadians need improved access to treatment on demand for people struggling with addictions. Canadians need an end to the poisoned street supply and access to a safe supply of drugs as a medically regulated alternative to the toxic street drugs offered, most of the time, by organized crime. Canadians need to see an investigation into the role of drug companies and the role they may have played in fuelling the opioid crisis, and they need to see a demand put forward for meaningful financial compensation from those companies that profited off the opioid crisis.

Bill C-236 says it used evidence-based measures to come to the conclusion that we need diversion. I would say that is not where it leads us at all. These demands and measures are strongly supported by public health advocates. The police, and all of those who are really interested in public health, say we need decriminalization. The war on drugs has been a clear failure. Instead of stigmatizing and punishing Canadians who are suffering from substance use disorders, it is time for bold and compassionate leadership from the federal government.

While the overdose crisis strikes at all Canadian families, a response that meets the needs of our most marginalized communities is urgently required. The fact that we are dealing with a private member's bill on this topic, and the fact that we have no government bill or government response to the opioid crisis, tells us a lot. We need a bill. The member for Beaches—East York gave an eloquent speech tonight, just as I said, in support of the wrong bill. It is his other bill we need to be dealing with.

Bill C-236 is not the bill that Canadians need. New Democrats will not be supporting a bill that does little or nothing to address the opioid crisis. We need bold action now but, unfortunately, there is no bold action in Bill C-236. Bill C-236, as I said, will actually take up time in the House we could use more productively to decriminalize personal possession of drugs in this country.

[Randall Garrison, NDP, Esquimalt—Saanich—Sooke, BC]

Madam Speaker, I guess I am a bit perplexed with the speech the member for Beaches—East York just gave because it is a really fine speech for his other bill. He introduced Bill C-235, which talks about decriminalization. I just wonder whether he mixed up his speaking notes because everything he said tonight supports that other bill and not the bill he has decided to proceed with tonight.

Could the member explain to me why I am feeling so perplexed about that?

[Nathaniel Erskine-Smith, Liberal, Beaches—East York, ON]

moved that Bill C-236, an act to amend the Controlled Drugs and Substances Act (evidence-based diversion measures) be read the second time and referred to a committee.

Madam Speaker, before the pandemic, I introduced Bill C-235 to decriminalize all drugs for personal possession, and this legislation, Bill C-236 as an alternative to create a diversion framework to limit police and prosecutorial discretion in keeping with evidence-based principles.

I was motivated to introduce these bills because of the opioid crisis. As we live through the COVID pandemic and are rightly concerned about how different levels of government are working together to protect us, it is important that we do not forget about the scale of tragedy the opioid crisis has brought to so many families across our country.

From January 2016 to March 2020, there have been 16,364 apparent opioid-related deaths, nearly 11 a day. There have also been over 20,000 opioid-related poisoning and hospitalizations, or 13 per day. Public health officials do not update us every day the way they do with COVID, but perhaps they should. It is a public health crisis, and it is a tragedy.

StatsCan, pre-pandemic, told us that for the first time in 40 years, our life expectancy had stalled. StatsCan said:

Life expectancy at birth did not increase from 2016 to 2017 for either males or females, a first in over four decades. This was largely attributable to the opioid crisis.

We know that the crisis has been exacerbated by the COVID pandemic. In the words of none other than Health Canada:

At the intersection of these public health crises, people who use substances are likely to experience a number of increased risks.

As we see our government listen to public health experts and respond with emergency measures to address the COVID pandemic, it stands in stark contrast, unfortunately, to the way in which we have handled these opioid-related deaths.

Let me start with quoting some public health experts we have been listening to in the course of the COVID crisis, but that we have failed to heed in the opioid crisis. Canada's chief public health officer, Dr. Theresa Tam has called for a societal discussion on decriminalization. B.C.'s public health officer, Dr. Bonnie Henry published a report called, “Stopping The Harm”, explicitly calling for decriminalization, writing:

There is widespread global recognition that the failed “war on drugs” and the resulting criminalization nd stigmatizati o n of people who use drugs has not reduced drug use but instead has increased health harms.

Let me put it more bluntly: our outdated and ineffective laws are killing people. If we embraced evidence-based policies, we would not have a highly toxic illegal drug supply. Again, this is Bonnie Henry speaking through her report:

Substance use occurs on a spectrum, from beneficial (e.g., social activity, cultural practices) to non-problematic (e.g., recreational or occasional use), to problematic...to chronic dependence and addiction....due to the toxicity...there is considerable risk of overdose and overdose death related to illegal drug use in any capacity.

Toronto's medical officer of health, Dr. Eileen de Villa has also published a report that states:

The evidence...strongly support the need to shift to a public health approach to drugs in Canada.

She goes on to call on us, the federal government, to decriminalize the possession of all drugs for personal use.

The UN and WHO published a joint statement in 2017, calling on countries to put in place guarantees against the discrimination in law, policies and regulations in health, including by reviewing and repealing laws that have been proven to have negative health outcomes and counter established public health evidence. Again, not my words, their words, “These include laws that criminalize...drug use or possession of drugs for personal use”.

In its report, “Care not Corrections”, the Canadian Mental Health Association writes:

Criminalizing people who use...drugs stigmatizes substance use; it also fosters a climate in which they feel unsafe in accessing life-saving interventions and treatment services, and further marginalizes people living in poverty [or at social disadvantage].

The Canadian Centre on Substance Use and Addiction has written:

A growing body of evidence suggests that decriminalization is an effective way to mitigate the harms of substance use and the policies and practices used to deal with it, especially those harms associated with criminal justice prosecution for simple possession.

Stepping for a moment outside of the advice of public health experts and looking to those in the justice system, we have the Chief Justice of Ontario, Justice Strathy, as he opened the courts, say this:

There is increasing recognition that we, as a society, need to re-consider how we define “crime” and whether some offences, labelled criminal, should be regarded as health-related matters and addressed therapeutically. In recent months, as opioid deaths have soared, the Canadian Association of Chiefs of Police and many of Canada's chief medical health officers, have suggested that after a century of drug prohibition, we should stop treating the use and simple possession of narcotics as a criminal offence and regard them as public health matters. We need to consider whether these and other social challenges are most effectively addressed outside the courts.

Now, the chief justice referenced our police chiefs, and in July 2020, the Canadian Association of Chiefs of Police wrote its own report calling for decriminalization and evidence-based drug policies, which said, “While law enforcement across Canada exercise their discretion when considering possession charges, such as the presence of harmful behaviour or the availability of treatment services, the application of the law is inconsistent across communities.”

The report continues, “We must adopt new and innovative approaches if we are going to disrupt the current trend of drug overdoses impacting communities across Canada. Merely arresting individuals for simple possession of illicit drugs has proven to be ineffective.”

These are not my words. These are the words of our police chiefs, and the words are “proven to be ineffective.”

The report goes on to say, “Research from other countries who have boldly chosen to take a health rather than an enforcement-based approach to problematic drug use have demonstrated positive results.”

When I spoke to Waterloo Chief of Police, Bryan Larkin, I told him that we absolutely need national action, but if we do not get national action in the immediate term, as a way forward, what if municipalities made the request, whether it was Vancouver or Toronto, to the federal government asking for an exemption? He told me that the police chiefs would support that approach as well. We now have had the City of Vancouver call on the federal government to decriminalize simple possession in its geography. Our federal government should honour and grant that request.

The police chiefs also recognize the international evidence, and it is important to pause for a moment and recognize that international evidence. I will point to Portugal, which decriminalized possession of drugs for personal use in 2000. Since then, it has seen overdose-related deaths go down and drug use stay the same. It has not seen problematic drug use increase in any significant way whatsoever. Importantly, it has seen the number of people seeking treatment increase by 60%.

Not only do we know that this move will address stigma, but the number of people seeking treatment will increase because it would be addressing stigma as well. It would also address the racial injustice in our drug laws.

If one tracks the history of our drugs laws, one knows that they are racist. The report of the Senate Special Committee on Illegal Drugs goes into some detail about the racist attitudes that underpinned government action to criminalize certain drugs, including a fear, at one time, of Chinese Canadians.

As the Canadian HIV Legal Network has recently written, “from 2014 to 2019, police in Canada made more than 540,000 arrests for drug offences; 69% of those were for simple drug possession.

It is troubling that Black and other racialized communities in Canada are disproportionately charged, prosecuted and incarcerated for drug offences, depriving them of their rights to equality and non-discrimination in the criminal legal system, freedom from arbitrary arrest and detention, security of the person, and the highest attainable standard of health. As the report of the Commission on Systemic Racism in the Ontario Criminal Justice System concluded more than two decades ago, “Persons described as black are the most over-representated among prisoners charged with drug offences”.

More simply, we fear different drugs today, because we used to fear different people. While we have shifted the purpose of the law beyond explicit racism and xenophobia, its application continues to represent a racial injustice.

Now, we have seen some government action. We have seen an expansion of safe consumption sites, and we have seen 40 safe consumption sites approved. Very recently, the Public Prosecution Service of Canada updated its guidelines to say very explicitly, “Resort to a criminal prosecution of the possession of a controlled substance...should generally be reserved for the most serious manifestations of the offence” where it is for personal use under section 4 of the CDSA.

Our federal government has implemented pilot projects towards safer supply and has funded pilot projects, including here in our east end at South Riverdale. It has spent hundreds of millions of dollars to address the opioid crisis through a public health approach, including $150 million in budget 2018 to expand treatment options, and millions more towards a national public education campaign to end the stigma that surrounds people who use drugs. These are unquestionably worthy actions.

We should pause here because we have our federal government spending millions to end the stigma for people who use drugs, but at the same time, we are refusing to remove the criminal sanction that perpetuates that stigma more than any other policy. It is cognitive dissonance in action, and it cost lives.

I will explain what Bill C-236 does. To begin, I moved Bill C-235 and Bill C-236 at the same time because Bill C-235 simply removes the criminal offence for simple possession. This is in keeping with those public health experts, and the international evidence, who are saying that simple possession for personal use should not be a criminal sanction.

While fully removing drug possession for personal use from the CDSA is my preferred approach, and it certainly has the support of experts, in the end, a private member's bill has one opportunity to move a law forward. It is very important to me that this conversation moves to committee and that we see a change in our law.

To that end, Bill C-236 is a more modest change in our law that seeks to address stigma and end the unnecessary criminalization and incarceration of people who use drugs. Ultimately the bill seeks to obtain government support to accomplish those ends.

Very simply, the bill creates an evidence-based diversion framework to ensure that before police officers or prosecutors move forward with laying or pursuing a charge, they must consider whether it is sufficient to give a warning, to refer an individual in need to a public health agency or provider, or pursue alternative measures to incarceration. It was developed in keeping with the model of diversion found in our Youth Criminal Justice Act.

Similar to the new guidelines to prosecutors, it seeks to ensure that police and prosecutorial discretion is exercised with the evidence in mind. If this bill passes, that discretion must be exercised in keeping with a set of guiding principles. I think they are important, so I will simply read them:

(a) problematic substance use should be addressed primarily as a health and social issue;

(b) interventions should be founded on evidence-based best practices and should aim to protect the health, dignity and human rights of individuals who use drugs, and to reduce harm to those individuals, their families and their communities;

(c) criminal sanctions imposed in respect of the possession of drugs for personal use can increase the stigma associated with drug use and are not consistent with established public health evidence;

(d) interventions should address the root causes of problematic substance use, including by encouraging measures such as education, treatment, aftercare, rehabilitation and social reintegration; and

(e) judicial resources are more appropriately used in relation to offences that pose a risk to public safety.

The criminalization of drug possession for personal use only harms the very people we want to help. It is not only ineffective, it costs lives. We need a new approach. We need to follow the evidence to save lives.

Ending of the Stigma of Substance Use Act

[Nathaniel Erskine-Smith, Liberal, Beaches—East York, ON]

moved for leave to introduce Bill C-235, An Act to amend the Controlled Drugs and Substances Act and to make consequential amendments to other Acts.

Mr. Speaker, thousands of Canadians have died because of the opioid crisis. For the first time in 40 years, according to Statistics Canada, our life expectancy has stalled, and Statistics Canada attributes that to the opioid crisis. It is a national public health crisis.

This bill would delete the possession offence completely from the CDSA, not for trafficking or producing but for people who need our help. We should treat patients as patients and not as criminals. The bill's focus is fundamentally to end stigma.

Canada's public health efforts highlight the importance of ending the stigma that surrounds people who use drugs. Of course, the criminal sanction is the primary stigma in our society.

Decriminalization in other countries has increased the number of people seeking treatment by 60%, and it is supported in Canada by the Canadian Mental Health Association, the Canadian Public Health Association and public health experts across our country.

The bill, if passed, will save lives.

(Motions deemed adopted, bill read the first time and printed)