Canada: New Federal prosecutors directive “avoid drug possession charges when possible”

August 17, 2020

Table of Contents

• 1. Purpose
• 2. Context
• 3. Applicable Principles
• 4. Conclusion

1. Purpose

The following provides guidelines to prosecutors in determining the appropriate approach to the prosecution of the possession of a controlled substance contrary to s. 4(1) of the Controlled Drugs and Substances Act (the “CDSA”).

2. Context

The purpose of the guideline is to articulate a principled prosecutorial litigation approach to the well-documented realities about the health impact of substance use while acknowledging that certain drug use may present particular public safety concerns, particularly when associated with other criminal conduct. The prosecution directives contained in the PPSC Deskbook already take into account health and public safety concerns in the assessment of the public interest in initiation, continuation and disposition of all charges, including simple possession under section 4(1) of the CDSA.

The approach set out in this guideline directs prosecutors to focus upon the most serious cases raising public safety concerns for prosecution and to otherwise pursue suitable alternative measures and diversion from the criminal justice system for simple possession cases.

The approach reflects the multiple tools Parliament has created, and prosecutorial policies incorporated over time. These include Drug Treatment Courts, alternative measures as well as judicial referral hearings.

It also reflects three realities: (i) substance use has a significant health component; (ii) in addition to the personal health component, substance use may be associated with conduct that poses separate serious public safety concerns requiring a criminal enforcement component; and, (iii) simple possession may result in a criminal record as well as a fine or a short period of incarceration. Criminal sanctions, as a primary response, have a limited effectiveness as (i) specific or general deterrents and (ii) as a means of addressing the public safety concerns when considering the harmful effects of criminal records and short periods of incarceration.

When public safety concerns arise from the substance use, it is often associated with other criminality, such as weapons possession and the threat of or commission of violent crime. Consideration must be given as to whether the public safety concerns associated with the substance use are more readily addressed through the prosecution of the other criminal activity.

3. Applicable Principles

PPSC prosecutors will be guided by the following principles:

1. Resort to a criminal prosecution of the possession of a controlled substance contrary to s. 4(1) CDSA should generally be reserved for the most serious manifestations of the offence (described in paragraph 3 below).
2. In all instances, alternatives to prosecution should be considered unless they are inadequate to address the concerns related to the conduct, including in the following circumstances:
   • The possession relates to a substance use disorder. In particular, alternatives to prosecution should be pursued where the offender is enrolled in a drug treatment court program or a course of treatment provided under the supervision of a health professional, including those involving Indigenous culture-based programming, peer counselling, and abstinence-based recovery centres;
   • The offender’s conduct arises from a violation of a bail condition and can be addressed adequately through a judicial referral hearing;
   • The offender’s conduct can be adequately addressed through an approved alternative measure or a measure that is consistent with the principles contained in Chapter 3.8 of the PPSC Deskbook governing alternative measures;
   • The offender is an Indigenous person and their conduct can be addressed through an Indigenous restorative justice response; or
   • The offender’s conduct can be addressed through a restorative justice response.
3. The following areas of concern will generally be considered to be the most serious manifestations of the harms justifying a criminal prosecution response:
   1. Conduct that poses a risk to the safety or well-being of children or young persons, including simple possession:
      • committed in the vicinity of places frequented by children or young persons;
      • committed by a person who is in a position of trust or statutory authority in respect
        of children or young persons;
   2. Conduct that puts at risk the health or safety of others, including simple possession associated with impairment from substance use while preparing to drive, being responsible for supervision of a person driving, or driving a motor vehicle, operating machinery, possession of a weapon, or performing an activity posing a risk to public health or safety;
   3. Conduct that poses a heightened risk to a community’s efforts to address consumption of controlled substances in accordance with its own community approaches. This concern is often present in relation to isolated or remote communities;
   4. Conduct where there is a factually grounded basis to associate it with another offence contrary to the CDSA, including cultivation, production, harvesting, trafficking or possession for the purpose of trafficking, obtaining a prescription substance for the purpose of trafficking or the use of others, or importation of a controlled substance (for commercial gain) or another Criminal Code offence;
   5. Conduct in breach of the rules of a regulated setting such as a custodial facility, jail or penitentiary;
   6. Conduct committed by a peace officer or public officer, where it is relevant to the discharge of their duties.

4. Conclusion

Some regional flexibility will be permitted to reflect the different severities of the underlying situation being addressed, availability of health-based responses and the state of the consultative process with partners. Chief Federal Prosecutors (CFPs), Deputy Chief Federal Prosecutors (DCFPs) and General Counsel, Legal Operations (GCLOs) should undertake discussions with the police, provincial prosecution services and health care providers in order to assist with the establishment of the specific regional practices.^Footnote1 Chief Federal Prosecutors (CFPs) must consult with Deputy Directors in respect of any flexibility required to implement this guideline following those consultations.