Decriminalization would help with systemic racism

Drug war is a war on people of colour, writes Sarah Hasan.

Before the Government of Canada became enthralled by a convoy of illegal protesters, it set out to address a different crisis terrorizing this country. This past December, the Liberal government revived Bill C-5, an act to amend the Criminal Code and the Controlled Drugs and Substances Act, which aims to root out systemic racism in the criminal justice system and address root causes of problematic substance abuse in light of the worsening opioid crisis. While a step in the right direction, this bill does not go far enough to tackle the racial disparities in opioid-related harms.

Central to the worsening of the opioid crisis is the criminal nature of opioid use. Our response to the crisis prioritizes penalizing addiction rather than treating it. Every day, roughly 106 individuals are arrested in Canada for personal drug use, many of whom are non-violent, otherwise law-abiding individuals. These interactions with the criminal justice system expose low-risk offenders to the serious and lasting consequences attached to a criminal record and create an environment where users fear accessing harm reduction services, leading to increased harms.

Notably, the war on drugs has been a war on people of colour, with Indigenous and Black individuals overrepresented in opioid-related deaths and incarcerations. In Alberta, First Nations people are seven times more likely to die from an opioid-related overdose and nine times more likely to visit the emergency department for opioid or drug-related use.

Additionally, Black and Indigenous individuals are overrepresented in the criminal justice system, with Indigenous adults accounting for 30 per cent and Black adults 7.2 per cent of federally incarcerated inmates in 2020, despite them accounting for five per cent and three per cent of the Canadian population, respectively.

“These statistics, this record, is shameful,” said Justice Minister David Lametti about the overrepresentation of Indigenous and Black people in Canadian prisons.

To that end, Bill C-5 aims to create a fairer criminal justice system by repealing mandatory minimum penalties for all drug offences, which disproportionately affect Indigenous and Black Canadians. It also requires law enforcement to exercise their discretion to consider alternative measures to imprisonment, such as diversion to treatment programs or service providers in the community, for simple drug possession.

“This measure will allow for more effective rehabilitation and integration by allowing individuals to keep their job, to care for their children or family members or to seek counselling or treatment for substance and addictions abuse,” Lametti said.

With this bill, the Liberal government is taking a positive step toward ending the war on drugs by recognizing addiction as a health issue rather than a crime. While Bill C-5 is an important step toward reducing opioid-related harms, additional reform efforts should be taken to address the racial disparities in our criminal justice system. The proposed legislation still leaves open the possibility of police unfairly charging people found in possession of drugs, and therefore the threat of interrogation, prosecution, and other harms remains.

While police discretion may seem reasonable, studies show that Black and Indigenous youth are more likely to be arrested and less likely to be diverted for minor drug possession than their white counterparts. Hence, by retaining discretionary policing powers, Bill C-5 continues to give too much power to law enforcement and the court, where systemic racism remains an issue.

Bill C-5 falls short of decriminalizing simple drug possession, which is what we need to end the racial harms of our drug policies. Although a common concern is that decriminalizing simple drug possession would lead to an increase in drug use and crime, this fear is unfounded. Countries that have decriminalized low-level drug possession, such as Portugal, have experienced no significant increase in drug use and have seen reduced drug-related deaths and arrests, as well as an increase in the number of individuals receiving treatment.

It is long overdue for the federal government to remove all criminal sanctions for low-level drug possession to reduce racial disparities in drug-related incarceration and stem the soaring opioid death toll. As NDP MP Randall Garrison said, “The bill is better than nothing, but Canadians need the federal government to take a more holistic approach to ensure our justice system doesn't continue to perpetuate systemic racism.”