Quebec discreetly issues directive that favours non-judicial treatment of simple drug possession

Law360 Canada (August 12, 2024, 1:40 PM EDT) -- Quebec criminal lawyers have welcomed a discreet directive issued without fanfare by the provincial minister of justice calling on Quebec’s Crown prosecutors to weigh public interest and the risk to public safety before prosecuting people suspected of simple drug possession for personal consumption.

The circumspect directive, followed up a day later by new guidelines issued by the Quebec director of criminal and penal prosecutions (DCPC), is widely expected to help alleviate the logjams currently plaguing the provincial court system, according to criminal lawyers.

“This is definitely one way to kind of loosen a little bit the delays for cases where there’s maybe not as much moral culpability as some of the other crimes that they’re dealing with,” said Dylan Jones, a Montreal criminal lawyer with Boro Frigon Gordon Jones. “There’s a lot of things where maybe we go too hard after people that don’t necessarily deserve it, and it prevents them from applying their resources to things that really need it, like conjugal violence and sexual assault that are a lot more repugnant than drug use.”

The unilingual notice disseminated by Quebec Justice Minister Simon Jolin-Barrette, titled “Orientations and Measures of the Justice Minister,” was published in the Gazette officielle du Québec on April 2023. But many actors in the legal system, such as lawyers and police forces, as well as the public at large, were in the dark about the change.

“The government did not want to send the message to the general population that it’s a free-for-all as far as the possession of narcotics is concerned, and that anyone can walk down the street with drugs,” noted Louis-Philippe Généreux, a criminal lawyer at a legal aid office in Joliette, approximately 50 kilometres northeast of Montreal.

The directive follows on the heels of changes introduced by the federal government’s Bill C-5 in 2022, which dictates how authorities should deal with simple possession of scheduled substances. In a bid to divert individuals away from the criminal justice system, police and prosecutors are required under Bill C-5 to consider alternatives — including taking no action, issuing a warning or diverting individuals to addiction treatment programs — to laying or proceeding with charges for simple possession of drugs. But Crown prosecutors nevertheless have discretion to lay charges if they are of the view that prosecution is appropriate.

The Quebec justice minister’s directive is similar. It states that prosecutors must assess all circumstances surrounding the commission of the offence in order to determine whether there is a risk to public safety. If the offence was perpetrated while driving or working, in the presence of minors and “other vulnerable persons,” involved the use or possession of weapons or in cases linked to organized crime, prosecutors should consider laying criminal charges for simple drug possession, added the directive.

But if the prosecutor decides not to lay charges and deems diversion as an appropriate measure, then the prosecutor must use alternative measures within the meaning of s. 716 of the Criminal Code and not merely issue a warning or referral, even in the case of a first offence, adds the directive. 

The seven-page DPCP instructions flesh out more circumstances that prosecutors should take into account. Prosecutors should consider laying charges if the drug offence was committed in a regulated milieu such as a prison or hospital, if violence or the threat of violence was used or in circumstances that disturb public peace or “compromise the sense of security of residents and people who frequent a neighbourhood.” Prosecutors must also contemplate laying charges if the offender does not “show a willingness” to curb their “criminal behaviour” associated with drug use and bear in mind the “particularly harmful” nature of the substance, its prevalence or intended use.

“With Bill C-5 and public attitudes changing, they realize there’s more of an appetite for this kind of thing than there used to be,” noted Jones. “It might have been a much harder sell at the beginning of the 2000s or late 1990s, when there really was a war on drugs back then. People realize that approach was a total failure.”

The new instructions do not, however, represent a shift in Quebec public policy, warns Montreal criminal lawyer Eric Sutton. The Quebec government is not “particularly liberal-minded” over drug possession, as illustrated by its “dogged defence” of its prohibition on homegrown cannabis plants, which after a four-year legal battle was upheld by the Supreme Court of Canada, added Sutton. “They’re very concerned about the Jordan delays and the Jordan ceiling, and it comes down to just trying to stem the flow of cases,” said Sutton. “So they’re trying to prioritize cases they want to prosecute and those they feel aren’t worth it, and they’ve decided simple drug possession is not in the upper echelon of priorities to prosecute.”

But Généreux believes that the relatively new diversion strategy by the Quebec government somewhat broadens the notion of public interest. On the one hand, it reinforces the growing tendency that it would be more beneficial for society at large to help people with drug addiction through diversion programs “to get them back on track,” said Généreux. “But where we’ve perhaps broadened the spectrum is that we’re also thinking about the legal system, which is currently really struggling in terms of caseload and case delays,” added Généreux. “There’s this message being sent to the DCPC to perhaps concentrate their efforts on really worthwhile narcotics cases instead of spending a lot of judicial resources on people who need help more than they need to be punished.”

That is an assessment shared by Patrick Lalonde, assistant executive director of the Quebec Association of Police Chiefs. Police are not in favour of decriminalizing drugs as “we’re not there yet,” said Lalonde. But the diversion of “certain” cases “makes sense” so long as there are health resources that can help people who need treatment, added Lalonde, formerly an assistant director at the Service de police de la Ville de Montréal. “It’s fair to say that if you’re an avid drug user, you’re a person who needs help,” said Lalonde. “But organizations that provide help must exist, but the problem is that these alternative measures do not exist in a satisfactory manner.”

But Lalonde points out that the new directives will have no impact on the way police deal with simple drug possession. “This is a good thing because, firstly, the drugs have to be destroyed and, secondly, we want to know what’s in the drugs,” said Lalonde. The narcotics are then sent to a lab for analysis “to know what’s circulating out there,” and the matter is forwarded to the DCPC, who will determine whether there is enough evidence to lay charges and whether it’s appropriate to do so, said Lalonde.

That’s the way it should be, said Jones. Crown prosecutors are better placed than police to decide whether charges should be laid over simple drug possession, added Jones. “Crown attorneys are kind of gatekeepers — that’s how the system works, said Jones.

Généreux had hoped that the new directives would allow for a person charged with simple drug possession to be released with a simple promise to appear before the courts at a later date, rather than being taken into custody and before a judge if they were detained.

Sutton, too, believes that the process could be simplified. “What they could do is just confiscate the drugs without any requirement to attend court,” said Sutton. “It seems to me that could be reviewed and maybe removed.”