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| Adriana Ortiz |
Unsurprisingly, some of society’s most vulnerable individuals have been affected by an opioid crisis. Sadly, we are riddled with emergency calls, hospitalizations and deaths that are being reported in record numbers. As the stats show, drug overdoses have skyrocketed during this pandemic. There is no turning a blind eye. This crisis needs to be addressed.
For decades, academics have noted that the war on drugs has been an utter failure. Despite a troubled history, inefficiency and an expensive policy, drug use has not dropped. The illegal market is thriving and drugs are being consumed in a society that is already facing difficult economic and social challenges.
The minister of justice and attorney general of Canada has announced a proposed amendment to the Criminal Code and the Controlled Drugs and Substances Act. The government is proposing a reform to sentencing and repealing mandatory minimums for certain drug offences. This is a step in the right direction.
Although, in Canada, with the recent notable exception of cannabis, the government has responded through the criminal justice system to address substance use. Such a response is ineffective. It does not serve to deter drug use. It only serves to further marginalize and stigmatize those who use illicit substances, many of whom are battling addiction and other mental health conditions.
The stigma prevents individuals from obtaining the medical assistance that they may require. Worst yet, penalization of individuals through the criminal justice system can lead to a criminal record, making it more difficult to secure employment in an already competitive market. This creates a vicious cycle.
Additionally, depending on a person’s immigration status, a criminal record can potentially lead to a person’s forcible removal from Canada, returning to a country that may pose a risk of harm. Lastly, from an economic perspective, given its ineffectiveness, it is foolish to utilize limited public funding to prosecute people for possession of drugs.
It is time for a different approach: we need to decriminalize all drugs. This may seem drastic to some of you, but it is not.
Now we must differentiate decriminalization from legalization. Simply put, decriminalization means that people are not criminalized for personal use of the drug. It is still illegal to produce and sell drugs. The positive impact of this approach is that it treats drug use and dependence as a health and social issue, not a criminal one. In contrast, legalization also removes all penalties for possession and personal use, but goes further to regulate the production, sale, distribution and consumption.
Countries such as Portugal have already opted for decriminalization to great success. After decriminalizing all drugs, Portugal has actually experienced a drop in the use of previously illicit drugs, undermining the notion that criminalization deters drug use.
The funds that are currently being used to advance an unhelpful policy could be used to create resources to rehabilitate those who struggle with addiction. Treating people as patients and not offenders would have a positive impact not only on consumers, but on their families, communities and society at large.
We have been slow to change our drug policy in Canada. In 1972, Pierre Trudeau tasked Gerald Le Dain (who was later appointed to the Supreme Court) to lead the Royal Commission of Inquiry to generate reports on the non-medical use of drugs. In these reports, he advised that any offence of possession should be repealed. However, in 1973, President Richard Nixon led the war on drugs, and Trudeau’s attempts were set aside, as the U.S. dominated drug policy.
In 2015, Justin Trudeau promised the legalization of cannabis. Once elected, Prime Minister Trudeau appointed a task force chaired by former federal justice minister Anne McLellan to provide advice on legalization issues. These reports not only contributed to changing a prohibitionist policy but shaped the legislation surrounding cannabis. After several bills were discussed in Parliament, on Oct. 17, 2018, the Cannabis Act was born, and marijuana was legalized. It took almost half a century and two Trudeau generations to get there, but it is now legalized.
Individuals had been incarcerated for 49 years for possession of personal quantities of marijuana. Furthermore, after legalization occurred, it took significant advocacy in order for those convicted of marijuana offences to regain their freedom, and these individuals had to spend time engaging in a different process for their criminal records to be cleared after their release.
It is time to decriminalize and change the surrounding rhetoric. As a criminal defence lawyer, who personally witnessed, the bloodbath left by a war on drugs, I understand how the criminal justice system is often used ineffectively as a blunt tool to address societal problems. The pandemic is showing us that it is time to reassess how we do things.
Adriana Ortiz is a criminal defence lawyer and has a master of laws from the University of Toronto Faculty of Law. In addition to Ontario, she has also practised in Colombia. You can contact her at adriana@adrianaortizrlaw.ca.
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