Protecting Health, Respecting Rights: Decriminalizing Drug Possession as a Constitutional Imperative

Abstract

Between 1969 and 1972, the Le Dain Commission of Inquiry into the Non-Medicinal Use of Drugs undertook a comprehensive study of Canadian drug laws, exposing their negative effects and recommending that Canada move away from criminalizing people who use drugs. Fifty years later, drug prohibition remains firmly in place, and the numbers speak for themselves: over 19,000 overdose deaths from opioids alone between January 2016 and September 2020, and an unprecedented stagnation in Canadian life expectancy attributed to the overdose crisis. Criminalizing drug use by prohibiting possession for personal use is highly problematic from a public health perspective. It is also, this paper contends, unconstitutional. To support this claim, the paper first reviews the current approach to illegal drug use in Canada. In light of the Supreme Court of Canada’s decision in Canada (Attorney General) v. PHS Community Services Society (Insite) and related cases, the paper goes on to argue that prohibiting drug possession for personal use under section 4(1) of the Controlled Drug and Substances Act (CDSA) violates section 7 of the Canadian Charter of Rights and Freedoms. Given the overwhelming evidence of the arbitrary and discriminatory impact of this criminalization, the paper argues that section 4(1) of the CDSA can in no way be justified under section 1 of the Charter, and it concludes that Canadian governments must abandon criminalization and adopt a health and human rights-based approach to drug use as a matter of constitutional imperative.

Note:
Funding Information: None to declare.

Declaration of Interests: None to declare.

Keywords: Canadian Charter, drug possession, criminalization, decriminalization, harm reduction