After years of promising changes to the previous Conservative government’s criminal justice policies, which have contributed to the overincarceration of marginalized groups, the federal Liberals are now proposing reforms. But while the new bill makes important strides, much more must be done to wind down the war on drugs, according to advocates for people who use drugs.

The federal government has unveiled Bill C-22, which would remove some mandatory minimum sentencing measures that have long contributed to the disproportionate incarceration of Black and Indigenous people. It would also allow for more conditional sentencing, which means house arrest instead of jail time for low-level and non-violent offenders.

Currently, Indigenous people make up more than 30 per cent of federal prisoners, despite representing only 5 per cent of the Canadian population. Meanwhile, in 2018–19, the proportion of Black people in federal prisons was 2.5 times greater than their representation in the general population.

The Liberal government said Bill C-22 is also a necessary step in addressing drug use as a health issue rather than a criminal issue. In particular, it would require consideration of alternatives to charges and prosecutions for people who have drugs for personal use, like diversion to treatment programs or drug treatment court.

“This is an important stage leading to a fairer and more effective justice system,” Justice Minister David Lametti said at the Feb. 18 press conference.

The legislative groundwork for Bill C-22 was laid last February with Bill C-236, one of two private member’s bills introduced by Liberal MP Nathaniel Erskine-Smith, which the new bill builds upon. Erskine-Smith said the record-breaking overdose crisis, the push for decriminalization by the City of Vancouver and B.C. governments, and last summer’s protests for racial justice “have motivated this conversation in really serious ways.”

“I never expected the government to adopt it as much as it did, or as quickly as it did,” he said. “So I think it’s a really positive step forward.”

Likewise, advocates have cheered the proposed repealing of mandatory minimum sentences. But they were very quick to note that Bill C-22 would still not decriminalize simple possession — something they view as essential to treating drug use as a health issue. Erskine-Smith said he will continue to advocate for full decriminalization.

“The repeal of the mandatory minimum sentences is significant and we have been advocating for that for some years, so we’re pleased to see that piece,” said Sandra Ka Hon Chu, director of research and advocacy for the HIV Legal Network.

“But we do think it needs to go further.”

‘Nothing is stopping them’

A big criticism among advocates relates to Bill C-22’s language around diversion to drug treatment, which they say maintains a coercive system against people who use drugs.

If passed, the bill would require police and prosecutors to consider how drug use should be treated primarily from a health perspective. In particular, the proposed legislation encourages police officers to do nothing, offer a warning or refer people with simple possession to support programs — but there is also nothing stopping them from laying charges. Likewise, it says prosecutors should drop charges or consider alternative measures like drug treatment courts, but they maintain the discretion to push forward with prosecution.

“We don’t think there should be any diversion measure,” Chu said. “They need to consider the bill’s principles, but nothing is stopping them from proceeding.”

Erskine-Smith is more confident about the strength of the principles, particularly those that refer to how criminal sanctions increase stigma and contradict public health evidence. He said it would be “virtually impossible” for prosecution to proceed if the bill passes.

But advocates said that harm can come from more than just criminal sanctions.

“Police can still approach you if they think you’re possessing drugs and they might do nothing or issue a warning or refer you to social services,” Chu said. “But that could still feel very coercive for people who use drugs.”

“What people who use drugs need is access to health care and it doesn’t necessarily mean treatment. It doesn’t necessarily mean abstinence”

Dr. Wesley Crichlow agrees. The criminology and justice professor at Ontario Tech University pointed out that Black and Indigenous communities experience a high level of overpolicing in their everyday lives, such as with street checks and racial profiling in general.

“Harm reduction intervention for illicit drug use has to be one that is free from police interventions, so that people do not feel further marginalized or stigmatized,” he said.

‘Meeting people where they’re at’

The diversion to drug treatment court also has issues, said Carol Hopkins, a member of the Lenape Nation. She is the executive director of the Thunderbird Partnership Foundation, a national organization that advocates for culturally relevant substance use services for Indigenous peoples.

Drug treatment court is an alternative to regular criminal court for individuals with drug offences or minor criminal offences. It requires people to undergo treatment. Proponents say drug treatment court reduces the rate of reoffending.

But besides the limited capacity of drug treatment courts in Canada, accessing them typically requires participants to plead guilty first and most courts demand abstinence from drugs and alcohol.
Hopkins disagrees with this approach.

“What people who use drugs need is access to health care and it doesn’t necessarily mean treatment. It doesn’t necessarily mean abstinence,” she said.

“It means meeting people where they’re at and what they’re ready for.”

“The evidence is overwhelming that we need to completely treat drug use as a health and social issue”

Crichlow also noted the need to consider how racism impacts drug treatment. A government report previously found that drug treatment courts have difficulties reaching Indigenous people and to a lesser extent other racialized populations. Women also reportedly face barriers accessing drug treatment courts.
Beyond these concerns, Hopkins pointed out that not all drug use is problematic.

“Drug treatment courts are based on the premise that any drug use is harmful, any drug use should be criminalized,” she said. “It doesn’t respect that people can and do use responsibly.”

‘The only obstacle is politics’

Instead, Crichlow and Hopkins stressed the importance of funding programs that tackle social inequities that impact health, such as intergenerational trauma and poverty. They also underlined the importance of funding community-based and culturally relevant support programs.

For instance, Hopkins said First Nations communities have worked to build processes that promote not only restorative justice but also healing.

“Indigenous knowledge holders and Elders will say that there is no justice without healing and the criminal justice system provides no access to healing,” she said.

“And so in communities where you have those culture-based approaches, there can be processes that ensure justice, but also promote healing for the individual, for the families involved, and … overall [for] the whole community.”

And alongside these approaches, advocates said the push for full decriminalization continues.
At the press conference, Lametti said his current focus is what’s in the bill, but noted that discussions around “other approaches” are happening. Meanwhile, Erskine-Smith said he hopes there’s an opportunity to improve Bill C-22 along its approval process and build out the evidence for full decriminalization based on B.C.’s and Vancouver’s conversations about decriminalization with the federal government.

“The evidence is overwhelming that we need to completely treat drug use as a health and social issue,” Erskine-Smith said. “The only obstacle is politics.”