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Health-Centred Approach to Substance Use Bill

Bill to Amend--Second Reading--Debate Continued

June 22, 2021

Honourable senators, I want to thank Senator Boniface for bringing forward this legislation geared toward making communities safer, healthier and more just by changing Canada’s approach to drug policy.

As some will know, my appointment to this place was announced on the same day as that of Senator Boniface. Newspaper headlines wondered how a “top cop” and a “prisoners’ advocate” would fare serving alongside each other in the Senate. Like so many headlines, it missed the reality that we share many common interests. Supporting drug decriminalization is one of these. Our respective life’s work left us all too familiar with the realities of people being abandoned to the streets, to the criminal legal and prison systems, and to death for reasons that are preventable.

Senator Boniface and others have ably laid out the extensive evidence that fighting the so-called “war on drugs” with zero-tolerance criminal law policies simply does not work. This approach does not deter drug use or make communities safer. In fact, it makes communities less safe by criminalizing, stigmatizing and pushing people in need of health, social and economic supports into the margins, the streets, prisons and death.

Indeed, in 2020, the Canadian Association of Chiefs of Police joined — and in fact today it was announced the mayors of Ontario’s largest cities also joined — the growing chorus of experts and advocates demanding an end to mandatory criminal sanctions for drug possession, and proposing instead access to alternate measures, including treatment. This increased public interest in decriminalization comes in the midst of an opioid crisis that is ongoing but has only been exacerbated by the COVID-19 pandemic.

Canadians have watched as other countries, including Portugal, have responded to drug crises with decriminalization policies — similar to what is contemplated by Bill S-229 — that have improved access to healthcare, housing and economic well-being, while also reducing incarceration, all without causing any significant increase in crime and illicit drug use.

It is time for Canada to show the same leadership, particularly because it is those most marginalized who have borne the risks and health, safety and criminal law consequences of our status quo. Canada’s punitive approach to drug policy has entrenched racism and inequality by disproportionately criminalizing women, those who live below the poverty line, as well as those who are homeless, racialized and, in particular, those who are Indigenous.

In Canada, drug offences are one of the three most common types of convictions that result in women being incarcerated in federal penitentiaries, and researchers note there is often a specific, gendered context to women’s substance abuse and use. Nearly 90% of women relate their use of substances to attempts to anaesthetize themselves to their experiences of violence and other past trauma. Indeed, 87% of women and 91% of Indigenous women in federal prisons have histories of physical or sexual abuse.

The evisceration of publicly funded addiction counselling and mental health services in communities has resulted in people increasingly being abandoned to prisons, the streets and death, for what are in essence health issues, because appropriate supports do not exist or are not meaningfully and equitably accessible.

The Correctional Investigator estimates that more than half of women in federal prisons have a current or previous addiction. Two out of three women with substance use issues have concurrent mental health issues.

At the time that simple possession of cannabis was legalized, research indicated that cannabis use was similar among different racial groups, yet data from cities across Canada indicated vast differences in who was convicted of possession offences. In Halifax, Canadians of African descent were five times more likely than others to be arrested. In Regina, Indigenous people were nine times more likely to be arrested.

Individuals have ended up in prisons, not because they are the only members of our communities using substances, but rather because they are those easiest to catch and have fewest supports; those from neighbourhoods that are more heavily policed; those racially profiled and targeted for stops; those without the legal supports necessary to make a case for access to treatment as an alternative to prison or without the resources to be able to afford or access meaningful and timely treatment. As Senator White so aptly summarized the problem, we are dealing with a two-tiered system where, too often, the rich go to treatment and the poor go to prison.

Bill S-229 aims to prevent people from being criminalized for simple possession and abandoned to prisons — the most expensive and least effective means of ensuring people get the supports they need. As British Columbia’s Public Health Officer reminds us, the consequences are particularly stark for women:

Incarcerating women with addictions or who sell drugs to survive negatively impacts their families and children in a much greater way than incarcerating men.

Many are mothers, meaning that their institutionalization separates them from their children, often resulting in children being taken into the care of the state. Not only is this destabilizing for children, families and communities, for racialized communities it perpetuates colonial policies of forced separation of children that, as we have seen with the legacies of residential schools, give rise to lasting and incalculable harms.

Bill S-229 also aims to prevent situations where people are required by the criminal legal system to adhere to unrealistic or unsafe conditions in order to stay eligible for alternatives to prisons. Conditions imposed by drug courts, conditional or suspended sentences, or the parole process relating to housing, treatment or employment may be premised on a person being able to access resources that simply are not available in practice or for which wait lists are punitively long.

Bill S-229 also aims to ensure that people do not carry the burden and stigma of criminal records as a result of simple possession. As noted by the Global Commission on Drug Policy and as emphasized by the Minister of Public Safety with the recent introduction of Bill C-31, these records too often push people further into poverty and marginalization because widespread practices of record checks create barriers to jobs, to apartment rentals, to education and volunteer opportunities, even to elder care, as well as other vital aspects of community integration and social determinants of health.

Bill S-229 is the right step forward and one that requires us to act urgently on additional criminal justice reforms to complement the vital goals of decriminalization, decarceration and decolonization that this legislation advances. This is particularly the case for those who already have criminal records relating to possession, and for those with convictions other than simple possession.

Despite measures designed to be more user friendly, shockingly few were able to obtain relief from historical criminal records following our passage of Bill C-93. Within the first year of the bill’s passage, only 257 people — or less than 3% of the 10,000 people the government estimated would benefit from the bill — had successfully obtained record suspensions. Expiry or expungement of records, without requiring an individual to go through an application process, is vital to avoid perpetuating injustices associated with criminalization.

Bill S-229 focuses on decriminalizing possession, and it must be noted that criminal prohibitions on trafficking can too often have the same effect of criminalizing those most in need of supports. According to the Correctional Investigator, more than half of Black women in federal penitentiaries are there as a result of drug convictions, most related to trafficking and many because they had agreed to carry drugs across international borders in attempts to climb out and lift their families out of poverty, to afford necessities for survival such as safe shelter, food and clothing.

For too many other women, both criminalization and substance use are linked to experiences of violence. Lack of vital health, social and economic supports means that too many women who are victimized are isolated, and are sent the message that this is their own responsibility and essentially deputized to protect themselves. Some do so, whether by anaesthetizing themselves through substance use or reacting with force to an abuser, in ways that can result in a range of different types of convictions and punitive sentences.

This criminalization of women with histories of substance use, health issues and experiences of violence again emphasizes the need for effective relief from criminal records so that marginalization is not magnified and perpetuated by a record. It also means, as emphasized by the Truth and Reconciliation Commission, the National Inquiry into Missing and Murdered Indigenous Women and Girls and the Parliamentary Black Caucus, that judges need discretion to consider alternatives to prison sentences in cases where imposing mandatory penalties would entrench systemic inequality and racism or be unjust or inappropriate, including as a result of an individual’s substance use issues.

We also need to consider measures like a guaranteed livable income that can help address the root causes of poverty and inequality, increase opportunities to access health and social supports and prevent people from being criminalized in the first place.

Canada presents itself internationally as a country that values and promotes human rights and substantive equality. Bill S-229 calls on us to ensure Canada’s drug policy reflects these values by centring people’s health and well-being, and abandoning punitive criminal law approaches that have been proven not to work. Canada owes this obligation to Indigenous, Black and other racialized communities who continue to be disproportionately targeted by tough-on-crime approaches to drugs as an ongoing legacy of colonialism.

It is time to ensure that, instead of criminalization, we promote equitable and meaningful access to health, social, housing and economic supports so that we may allow individuals to heal and reintegrate into society. Let’s get this done, dear colleagues. It’s long past time.

Meegwetch. Thank you.

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