Bill proposes to encourage non-carceral alternatives for drug offences
The Liberal Trudeau government’s Bill C-5 (formerly Bill C-22 in the previous Parliamentary session) is currently being considered in committee at the Senate and will likely come into force by the end of the year. Bill C-5 proposes to soften the harsh laws in Canada’s Criminal Code (the Code) and the Controlled Drugs and Substances Act (CDSA) by making four main changes: (1) increasing judges’ sentencing discretion, (2) encouraging alternatives to criminal charges for personal drug possession, (3) creating a new exception to the offence of personal drug possession and (4) creating automatic record suspensions for convictions of personal drug possession.
Increasing Judges’ Sentencing Discretion
To appear ‘tough on crime,’ the Conservative Harper government significantly increased the number of mandatory minimum penalties (MMPs) for criminal offences. MMPs require judges to give a minimum jail sentence to everyone convicted of certain offences, regardless of mitigating factors or other circumstances. Bill C-5 eliminates 14 MMPs in the Code and all three MMPs in the CDSA, leaving 56 criminal offences with MMPs (note, some lawyers disagree on what exactly constitutes an “offence” and consequently the number of MMPs).
Most of the MMPs Bill C-5 proposes to repeal have already been found unconstitutional or are constitutionally suspect. The Supreme Court of Canada (SCC) put a target on all MMPs in R. v. Nur, 2015 SCC 15, and R. v. Lloyd, 2016 SCC 13 (Lloyd), holding that MMPs are unconstitutional if a judge can think of a reasonable hypothetical scenario where the MMP is grossly disproportionate to an instance of committing the offence. Former Chief Justice Beverley McLachlin, writing for the majority in Lloyd, said that “mandatory minimum sentences for offences that can be committed in many ways and under many different circumstances by a wide range of people are constitutionally vulnerable because they will almost inevitably catch situations where the prescribed mandatory minimum would require an unconstitutional sentence.”
Bill C-5 also proposes to repeal s. 742.1(c) of the Code, which prohibits a judge from issuing a conditional sentence to a person convicted of an offence, prosecuted by way of indictment, with a maximum term of imprisonment of 14 years or life. The Court of Appeal for Ontario held that s. 742.1(c) was unconstitutional in R. v. Sharma, 2020 ONCA 478 (Sharma), but the SCC’s decision on Sharma is still on reserve.
Encouraging Alternatives to Criminal Charges for Personal Drug Possession
Bill C-5 would create a “requirement” for police officers and prosecutors to consider alternatives to laying charges or prosecuting personal drug possession (s. 4(1) of the CDSA). These alternatives could include warnings, seizing drugs, and referring the accused to a drug treatment service.
This “requirement” would likely be duplicitous, as police officers and prosecutors already have the discretion not to lay charges or prosecute personal drug possession. Additionally, Bill C-5 would not introduce any new remedy for police officers or prosecutors who misuse their discretion. Conversely, Bill C-5 would add s. 10.2(2) to the CDSA, which states that a police officer failing to consider alternatives to laying charges for personal drug possession “does not invalidate any subsequent charges laid against the individual for their offence.”
Prosecutors’ discretion is ordinarily immune from judicial review. The possibility of Bill C-5 constraining prosecutors’ discretion to prosecute personal drug possessions exists in theory. In practice, it would likely continue to be very difficult for the accused to file for judicial review of a prosecutor’s decision to prosecute them for personal drug possession. The SCC held in R. v. Nixon, 2011 SCC 34 and Ontario (Attorney General) v. Clark, 2021 SCC 18 that prosecutors’ discretion is normally immune from judicial review. Thus, it would be challenging for an accused to prove the prosecutor did not consider alternatives to prosecution.
A New Exception for Personal Drug Possession
Bill C-5 would add s. 10.7 to the CDSA: “no social worker, medical professional or other service provider in the community commits an offence under subsection 4(1) if, in the course of their duties, they come into possession of a substance included in Schedule I, II, or III and they intend to, within a reasonable period, lawfully dispose of it.” The federal government has not explicitly stated this amendment’s purpose or intended scope. Based on the Parliamentary submissions and Committee discussion on Bill C-5, it appears to have been primarily motivated to reduce a legal barrier to public drug-checking services.
Public drug-checking is a harm reduction service that provides individuals with information regarding the content and purity of their substance in efforts to reduce use-related risks. Most public drug-checking services require individuals to give a small sample of a substance (e.g., 10-30 milligrams) to staff. The staff then tests the sample, provides the client with the results, and destroys the sample. Section 10.7 of the CDSA likely protects public drug-checking staff from being convicted of s. 4(1) of the CDSA, but the courts would have to interpret the scope of this new amendment.
Before Bill C-5, public drug-checking services could request an exemption under s. 56 of the CDSA to be exempt from s. 4(1), but this could be an opaque and time-consuming process. Many non-profits operate public drug-checking services without an s. 56 exemption, counting on police officers and prosecutors to use their discretion.
Automatic Record Suspension of Convictions for Personal Drug Possession
Bill C-5 would create an amendment to the CDSA so that individuals convicted of personal drug possession after Bill C-5 comes into force would automatically have the record of their conviction suspended two years after the conviction or two years after the expiry of their sentence, whichever is later. A criminal record suspension (previously called a pardon) keeps an individual’s criminal record separate from other criminal records, meaning it will not appear in most criminal record searches.
Currently, the Criminal Records Act usually requires individuals convicted of personal drug possession to wait at least five years to be eligible to apply for a criminal record suspension. Bill C-5 would not be retroactive.
Cumulatively, Bill C-5 would make it more difficult for individuals to be convicted of personal drug possession and soften the consequences of conviction but would keep the offence on “the books.” On June 1, 2022, the Liberals and Conservatives voted down NDP Bill C-216, which proposed to repeal the offence of personal drug possession.
Editor’s Note: Taylor Rodrigues was formerly the National Policy and Advocacy Lead for the Multidisciplinary Association of Psychedelic Studies Canada where he advocated for amendments to Bill C-5.
