Road to Decriminalization

Crown Prosecutors Directed Not to Prosecute Simple Possession of Illicit Drug Offences in New Federal Guideline

On July 9th, 2020, the Canadian Association of Chiefs of Police (CACP) announced they were calling on the Federal Government to decriminalize simple possession of illegal drugs.

Adam Palmer, head of the CACP, stated that this recommendation was spurred by the proven ineffectiveness that prosecuting simple possession charges had in keeping offenders out of the criminal justice system. The desire is now to focus criminal justice system resources on healthcare directives and programs for at risk offenders, and targeting more serious drug related crimes like trafficking and illegal production.

The Federal Government did not take long to respond to the CACP call, as on August 17, 2020, the Public Prosecution Service of Canada (PPSC) released a guideline to all Crown Prosecutors directing them to only prosecute the most serious possession charges. 

This guideline (titled “5.13 - Prosecution of Possession of Controlled Substances Contrary to s. 4(1) of the Controlled Drugs and Substances Act”) is located in the PPSC Deskbook. The Deskbook, while not being legislation or a “law” per se, acts like a rulebook that Crown Prosecutor’s across the country must follow in carrying out their duties.  So while possession of drugs is not formally allowed or “legal”, Prosecutor’s are now only supposed to charge people with possession of drugs in the most serious of cases.

What is considered a “serious case” of possession, you ask? The directive lists the following serious instances of possession where Prosecutor’s are still recommended to pursue prosecution:

• Possession that poses a risk to the safety or well-being of children, including possession in the vicinity of places frequented by children (i.e. schools, daycares) and possession by a person who is in a position of trust of children (i.e. teacher);
• Possession while engaged in an activity that could harm others, including while driving, supervising others driving, operating machinery and being in possession of a weapon; 
• Possession that goes against a community’s efforts to address problems associated with illegal drugs (especially in isolated and rural communities); 
• Possession that is associated with another drug offence, like trafficking or illegal production and harvesting; 
• Possession in a regulated setting like jails or prisons; and 
• A peace officer found in possession of drugs while discharging their duties as an officer. 

Other than these serious instances of possession, this PPSC Guideline directs Prosecutor’s to instead deal with simple possession charges with non-punitive, health-care orientated programs such as drug treatment programs, judicial referral hearings, Indigenous culture-based programming, and other restorative justice responses.  

This Guideline is not making the possession of drugs legal, but it is in lockstep with what healthcare professionals have been recommending for years, focusing resources on the health, well-being and rehabilitation of people found to be in possession of drugs, instead of prosecuting them.
As this guideline is still in its infancy, its full practical implications are still unknown. Stay tuned to the McDougall Gauley website and Facebook page for any future updates.    

And if you are facing a possession charge, or any other offence contrary to the Controlled Drugs and Substances Act and need assistance,reach out to a member of the McDougall Gauley Criminal Defence Group, who have vast experience dealing with all drug related offences.