Top judge calls for radical rethink of how courts handle drug offences

A call by Ontario’s top judge for a radical rethink of the justice system — that could include overhauling the way the courts deal with drug possession cases — is being described as a “bold and unprecedented.”

Ontario Chief Justice George Strathy said in a speech Tuesday that there is increasing recognition that society needs to reconsider how it defines crime and whether some drug offences should no longer be prosecuted.

“In recent months, as opioid deaths have soared, the Canadian Association of Chiefs of Police and many of Canada’s chief medical health officers, have suggested that after a century of drug prohibition, we should stop treating the use and simple possession of narcotics as a criminal offence and regard them as public health matters,” Strathy said in a speech for the opening of the courts. “We need to consider whether these and other social challenges are most effectively addressed outside the courts.”

The annual legal event, a joint sitting of Ontario’s three levels of courts, is typically held in a downtown courtroom packed with judges, lawyers, politicians and civil servants. Because of COVID-19, this year’s event moved into the virtual sphere where it was broadcast live on YouTube.

Strathy, joined by Geoffrey Morawetz, Chief Justice of the Superior Court of Justice, and Lise Maisonneuve, Chief Justice of the Ontario Court of Justice, were, however, at the Court of Appeal at Osgoode Hall in a largely empty courtroom, separated by Plexiglas barriers. Attorney General Doug Downey was among other dignitaries delivering prepared remarks virtually.

While the event is called the “opening of the courts,” they never really shut down — not even during the pandemic, Morawetz stated, noting that since March, Ontario Superior Court has heard more than 50,000 virtual hearings.

In their speeches, the justices deviated from state-of-thecourt addresses to focus on the pandemic and its transformative impact on not just the justice system but all of society.

Calling it a “turning point in history,” Strathy said COVID-19 has “demonstrated the fragility of our very existence” and exposed the injustices and inequalities in western society, by disproportionately affecting the most vulnerable: residents of long-term care facilities, migrant farmworkers and the homeless.”

And while the pandemic has had the positive effect of accelerating the modernizing of the courts, it also exposed “cracks in the foundation of our justice system,” Strathy said.

Strathy also reiterated a call for the “urgent reinvestment in legal aid.”

John Struthers, president of the Criminal Lawyers’ Association, praised Strathy for displaying “true leadership” with his “bold and unprecedented” remarks about the war on drugs, which “was fermented in racism and has poisoned our justice system and our police.”

Cassandra DeMelo, a London, Ont., defence lawyer, who is the CLA’s women’s vice president, said Strathy’s speech was “truly remarkable,” because it “lay bare so many of our social ills.”

“Chief Justice Strathy’s comments today were a needed recognition that we need to try something else,” she wrote in an email.