Earlier in August, the Public Prosecution Service of Canada (PPSC) released new guidelines, the PPSC Deskbook, for prosecuting the illegal possession of controlled substances under the Controlled Drugs and Substances Act. As part of the new guidelines, federal prosecutors pursuing charges for illegal drug use are now urged to only criminally prosecute individuals with the most serious drug possession offences. Although these changes do not constitute decriminalization of drug possession on their own, they are considered to be an important step towards it.

Specifically, options to prosecution include having the accused individual engage in an alternative measures program or participating in restorative justice. Moreover, indigenous culture-based programming and peer support counselling initiatives are also explicitly recognized in the guidelines. In addition, the guidelines also include the circumstances of the alleged offence and the offender.

“We have this moment where medical, public health and police officials are all coming together to say the current approach is flawed… It doesn’t work,” said Gillian Kolla, a researcher at the Canadian Institute for Substance Use Research, in her interview with CTV News.

Earlier in July, the Canadian Association of Chiefs of Police called for a full decriminalization of the personal possession of illicit drugs, following increased feedback from public health professionals that criminalizing individuals with addiction issues does not reduce the growing opioid crisis.

Amid the COVID-19 pandemic, the number of opioid overdoses has been growing, with 728 deaths recorded in British Columbia alone in the first six months of 2020, compared with 198 deaths resulting from COVID-19.

According to the guidelines, substance use is considered as a health issue, and therefore, alternatives to prosecution, such as treatment or restorative justice programs, should be used for offenders with substance-use disorders. The guidelines advise prosecutors that substance users incurring a criminal record and serving jail time causes them harm and is, therefore, not an effective deterrent.

“This is Step 1 along a road to handling the possession of narcotics substances in a more progressive way. I hesitate to use the word `decriminalization,’ but what they’re doing is raising an alternative way of handling people with addiction,” said Prof. Gordon, a criminology professor at Simon Fraser University in his interview with the National Post. “I salute this and I am sure anyone concerned about the improper use of the criminal justice system to deal with addictions will salute this as well.”

Ottawa criminal-defence lawyer Michael Spratt told the National Post that before the new guidelines were issued, prosecutors were showing interest in finding alternatives to prosecution; however, implicit bias still crept in. Since prosecutors typically exercise their discretion independently, their individual application of the law may vary from jurisdiction to jurisdiction.

“I had a lot of marginalized people, people living on the street or from over-policed communities, a lot of Black and Arab men, who … weren’t necessarily granted the same latitude by prosecutors,” said Spratt.