Ultra Vires


Dueling Drug Decriminalization Bills in Parliament

The edges of Canada’s harsh drug policy are softening

There are currently four drug decriminalization bills in Parliament: the Liberal Government’s Bill C-5, Independent Senator Gwen Boniface’s Bill S-232, the Green Party’s Bill C-209, and the NDP’s Bill C-216. Below, I outline each of their proposed changes to Canada’s drug policy.

Bill C-5

Bill C-5 (formerly Bill C-22 in the previous Parliamentary session) is intended to make three main changes: eliminate mandatory minimum penalties, increase the use of conditional sentences, and increase alternatives to criminal charges for personal drug possession.

Mandatory minimum penalties (MMPs) require judges to give a minimum jail sentence to everyone convicted of some offences, regardless of mitigating factors or other circumstances. Currently, 73 criminal offences have MMPs and there have been over 160 constitutional challenges to MMPs—over half of the challenges have been successful. Bill C-5 would eliminate MMPs from all drug offences and some firearm offences.

Judges are prohibited from giving conditional sentences where offenders are convicted of an offence with a MMP. Eliminating MMPs would allow judges to give conditional sentences where the offender’s punishment is to follow a series of rules, such as attending a drug treatment program or curfew instead of immediately being sentenced to jail. If an offender violates the rules of their conditional sentence, they may have to serve the remainder of their sentence in jail.

Bill C-5 also proposes to repeal s. 742.1(c) of the Criminal Code which prohibits a judge from issuing a conditional sentence to a person convicted of an offence, prosecuted by way of indictment, that has a maximum term of imprisonment of 14 years or life. The Ontario Court of Appeal held that s. 742.1(c) of the Criminal Code was an unjustified violation of s. 15 Charter rights of Indigenous offenders and s. 7 liberty rights in R v Sharma, 2020 ONCA 478.

Lastly, Bill C-5 would require police officers and prosecutors to consider alternatives such as warnings and diverting the accused into social services before laying or prosecuting charges for personal drug possession, respectively. This change is in response to the August 2020 guidance the Public Prosecution Service of Canada issued, suggesting that alternatives to prosecution should be considered for personal drug possession (s. 4 of the Controlled Drugs and Substances Act (CDSA)) except where there are serious aggravating circumstances. The guidance has not been consistently followed by prosecutors across Canada.

Meanwhile, the Canadian Association of Chiefs of Police, more than 50 human rights, drug and legal policy groups, the Government of British Columbia, and some municipalities including Vancouver and Toronto, have been asking the federal government to go further and fully decriminalize the possession of small amounts of illegal drugs for personal consumption.  

Bill S-232

Bill S-232 proposes two key policy changes. First, Bill S-232 would repeal s. 4 of CDSA eliminating the offence of personal drug possession and the offence of trying to obtain controlled drugs.

This would allow individuals to legally possess any amount of a controlled drug for personal use. It avoids the “knife-edge” problem with the Government of British Columbia and the City of Vancouver’s decriminalization requests, where it would only be legal for individuals to possess up to a certain quantity of a controlled drug for personal use.

For example, if Vancouver’s request is approved, it would be legal for individuals to possess up to 2 grams of MDMA for personal use in Vancouver, but it would still be an offence punishable by up to seven years of imprisonment for an individual to possess 2.1 grams of MDMA for personal use.

Bill S-232 itself would not change other drug offences. Other drug offences such as possession for the purpose of trafficking, trafficking, manufacturing, and importing and exporting of controlled drugs would remain offences.

However, Bill S-232 would require the Minister of Health (“Minister”) to develop a national strategy for decriminalizing illegal substances in consultations with other affected federal ministries, provincial and territorial governments, Indigenous organizations, the justice sector, and other affected organizations.

In developing the strategy, the Minister would be required to consider increasing investments for treating substance use disorders, criminalizing the personal possession of controlled drugs over a minimum threshold, and creating an administrative sanctions regime for regulating drug offences which could include warnings, fines, or mandatory treatment. 

Bill C-209

Bill C-209, like Bill C-5, would eliminate MMPs for all drug offences and eliminate MMPs for many other criminal offences.  

Bill C-216

Bill C-216 proposes three key policy changes. First, like Bill S-232, it would eliminate the offence of personal drug possession and the offence of trying to obtain controlled drugs.

Second, it would create a Board with the power to expunge convictions of personal drug possession or trying to obtain controlled drugs. If a conviction is expunged, the person convicted of the offence is deemed to never have been charged and convicted of that offence. Bill C-216 would require the RCMP and all federal departments and agencies to destroy all records of convictions that are expunged. Individuals would have to apply to the Board to have their conviction of personal drug possession or trying to obtain controlled drugs expunged. The Board would be required to approve all complete requests at no charge to the requestee.

Third, similar to Bill S-232, Bill C-216 would require the Minister to develop a national strategy to address the harm caused by problematic substance use by promoting a comprehensive public health approach.

In developing the strategy, the Minister would be required to consult with provincial governments, health care providers, advocacy organizations, people with lived experience of substance use, and relevant experts. The strategy would be required to include measures to provide universal access to recovery, treatment, and harm reduction services for substance use disorders, and to reduce the stigma associated with substance use, including through outreach and public awareness programs.  

What’s next for Canadian drug policy?

Currently, the federal Liberals have a minority government, meaning they require the support of at least one other party to pass any legislation. There is support among the Liberals, the NDP, and the Greens to decriminalize drugs to varying degrees.

Of the four decriminalization bills in Parliament, one (Bill C-5) is a government bill and the rest are private member’s bills. Private member’s bills rarely pass because they usually have difficulty getting time in the busy Parliamentary agenda or support of a majority of Parliamentarians.

So, Bill C-5 has the greatest chance of becoming law. However, the Liberal Government was still unable to pass it during the last parliamentary session (when it was called Bill C-22) due to lack of time. The Liberal government is unlikely to support any of the competing bills to avoid giving other parties a “win.” If they go further on decriminalization, for example by eliminating the offence of personal drug possession, they will likely just amend Bill C-5 instead of supporting Bill S-232 or Bill C-216. 

Bill C-5 (Liberal) Bill S-232 (Independent Senator)Bill C-20 (Green)Bill C-216 (NDP)
Eliminate mandatory minimum penalties for drug offencesXX
Require police and prosecutors to consider alternatives to personal drug possession charges X
Eliminate the offence of personal drug possession XX
Create a national strategy to address illegal drug useXX
Make it easier to expunge personal drug possession convictionsX

Editor’s Note: Taylor Rodrigues is the National Policy and Advocacy Lead for the Multidisciplinary Association of Psychedelic Studies Canada where he advocates for the decriminalization of drugs.  

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