Thank you to the members of the committee for inviting us to speak about Bill C-5. I'm the co-executive director of the HIV Legal Network and I'm presenting today on behalf of my organization and the Centre on Drug Policy Evaluation.
Today I'm going to focus my remarks on the section of Bill C-5 that pertains to evidence-based diversion measures. Before I begin I'd like to endorse the recommendations made by the previous speakers calling for the restoration of conditional sentences and the repeal of all mandatory minimum sentences, or, in the alternative, an amendment to Bill C-5 that ensures that judges retain discretion to not apply mandatory minimum sentences if doing so would result in injustice.
I'll turn to the evidence-based diversion measures. Despite acknowledging in its declaration of principles the need to “protect the health, dignity and human rights” of people who use drugs, the stigma associated with the criminalization, and that “judicial resources are more appropriately used in relation to offences that pose a risk to public safety”, Bill C-5 stops short of repealing section 4 of the Controlled Drugs and Substances Act. This failure to eliminate criminal sanctions for drug possession completely undermines the principles underpinning the bill.
From 2014 to 2020, police in Canada made more than 600,000 arrests for drug offences. Two-thirds of those were for simple drug possession, yet more than a century of drug prohibition in Canada has not had an impact on the levels of drug consumption. As the Canadian Mental Health Association has concluded, contrary to the logic of criminalization, incarceration does not result in a cessation of substance use nor does it prevent harm.
As we outline in more detail in our submission, drug prohibition fuels stigma and discrimination against people who use drugs. Criminal records limit employment and housing opportunities. They affect child custody and restrict travel. The frequent contact the police have with people who use drugs leads to syringe sharing, rushed injection and isolation while using drugs. It creates barriers to accessing health services and contributes to epidemics of preventable HIV and hepatitis C infection as well as overdoses, which have resulted in nearly 27,000 deaths in Canada between January 2016 and September 2021.
Considering the ample evidence demonstrating the harms associated with criminalizing simple drug possession, and consistent with Bill C-5's declaration of principles, Bill C-5 should include a full repeal of section 4 of the Controlled Drugs and Substances Act.
Short of such a repeal, we recommend some amendments to the bill, in particular, in proposed section 10.1 regarding the declaration of principles.
We recommend that this section explicitly centre human rights and not frame drug use as primarily a health issue. It should acknowledge that most cases of drug use do not pose problems for the individual and that pathologizing drug use actually contributes to stigma.
It should reference the harms of criminalizing necessity trafficking. It is common for people to sell drugs to others in their network as a means of livelihood to support their own use and to avoid withdrawal or to provide a safe supply.
Finally, it should acknowledge the disproportionate impact of criminal sanctions for drug possession on Black, indigenous and other racialized communities, given the racist roots of Canada's drug control framework and the fact that Black and indigenous communities in Canada continue to be disproportionately charged, prosecuted and incarcerated for drug offences.
In proposed section 10.2(1), which outlines options for a peace officer who encounters someone in simple possession of drugs, an officer is required to “consider whether whether it be preferable, having regard to the principles set out in [the bill], to take no further action, to warn the individual or, with the consent of the individual, to refer the individual to an agency or service provider in the community”.
Despite this requirement, the subsequent section indicates that subsequent charges are not invalidated if a peace officer fails to consider these options. We recommend deleting this paragraph altogether as, in practice, it will completely undermine the purpose of the bill.
In proposed section 10.3, a prosecutor could, instead of laying criminal charges, opt for “alternative measures as defined in section 716 of the Criminal Code”. In the context of drug offences, this typically includes drug treatment courts, but such courts have been critiqued for being coercive, ineffective and posing numerous human rights concerns. They should not be presented as an alternative to decriminalization.
In proposed section 10.4 regarding a record of warning or referral, the police force “may keep a record of any warnings or referrals relating to individuals alleged to have committed an offence under subsection 4(1)”, which is the section that criminalizes simple drug possession.
This provision is contrary to the spirit of Bill C-5 and the declaration of principles. Police record-keeping would negatively affect the privacy of people who use drugs, could be used as a tool of surveillance and could undermine the potential to improve the quality of drug users' encounters with police. It is imperative that police not engage in monitoring, surveillance and record-keeping under the guise of reform of public safety. Therefore, we suggest replacing “may” with “must not keep records”.
I want to conclude by urging this committee to reject incrementalism and take bolder steps with respect to Bill C-5 that will more meaningfully address systemic racism and the harms of drug prohibition, including a full repeal of section 4 of the Controlled Drugs and Substances Act.
Thank you.