Canada has effectively taken a step toward decriminalizing the possession of illegal drugs, with the federal prosecution service issuing a new directive permitting prosecution only in the most serious cases – those that put public safety, and especially children, at risk.

The directive this week from the independent Public Prosecution Service of Canada (PPSC) does not involve new legislation approved by Parliament, unlike the Trudeau government’s legalization of cannabis use in 2018. Instead, it comes in the form of fresh instructions in the PPSC Deskbook, which sets out the principles that prosecutors must follow.

The prosecution service has some discretion in the way it implements crime legislation.

The directive comes as deaths from opioid overdoses are soaring, with 728 alone in British Columbia in the first six months of the year, compared with 198 from COVID-19. The prosecutors are being told substance use is at least in part a health issue, and that alternatives to prosecution, such as treatment or restorative justice programs, should be used for offenders with substance-use disorders. The Deskbook advises prosecutors that giving substance users a criminal record and a jail term causes them harm, and is not an effective deterrent.

As a result, the Deskbook tells 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 Deskbook defines the most serious cases as conduct, including simple possession, committed near places frequented by children or young people and driving or using other machinery or having a weapon while possessing drugs. Also, conduct that poses a “heightened risk” in isolated communities trying to use their own approaches to address drug consumption is deemed serious and prosecutable. Where possession is associated with other offences, such as trafficking, it is defined as serious.

Rob Gordon, a criminology professor at Simon Fraser University, said the new directive is part of a shift to the health system from the criminal-justice system in dealing with narcotics.

“This is Step 1 along a road to handling the possession of narcotics substances in a more progressive way. I hesitate to use the word `decriminalization,’ but what they’re doing is raising an alternative way of handling people with addiction,” Prof. Gordon said in an interview.

“I salute this and I am sure anyone concerned about the improper use of the criminal justice system to deal with addictions will salute this as well.”

Before the new directive was issued, prosecutors were flexible in finding alternatives to prosecution, but implicit bias crept in at times on who qualified, Ottawa criminal-defence lawyer Michael Spratt said in an interview.

“I had a lot of marginalized people, people living on the street or from overpoliced communities, a lot of Black and Arab men, who … weren’t necessarily granted the same latitude by prosecutors.”

Police will still lay or recommend charges under the new directive, Mr. Spratt said. The prosecutors will then have discretion to divert most cases from the criminal-justice system. He said the directive is “a step in the right direction, but it’s a very small step and there are dangers there as well.” Because possession remains a criminal offence, people will still be charged and have to appear in court, and may be placed on bail conditions, he said. “The very act of being charged itself can be a harm.”

In 2018, the most recent year for which data are available, 10,400 charges were laid for methamphetamine possession; 283 for ecstasy possession; 2,291 for heroin, and 1,474 for other opioids; and 7,079 for other drugs.

Nathalie Houle, a spokeswoman for the prosecution service, said in an e-mail to The Globe and Mail that the PPSC reviewed its policies on simple possession in part because of the opioid crisis. The prosecution service “strives to balance public safety and public health in its approach to the prosecution of drug offences. It has been reviewing its prosecution policies in light of current public-health research and the ongoing opioid crisis,” she said.

Calls for decriminalization have been growing. Last month, the Canadian Association of Chiefs of Police (CACP) called for decriminalization of illicit drugs, saying arrests are ineffective and do not save lives. B.C.‘s Chief Public Health Officer, Bonnie Henry, supports decriminalization. And on Wednesday, B.C.‘s Ministry of Public Safety and Solicitor-General said it welcomes any move that treats addiction as a health issue, not a criminal one.

“All Canadians want to see people get the health care they need and for police to be freed up to focus on serious criminal activity,” spokeswoman Hope Latham said.

The federal government has not taken up those calls. A spokesperson for the Justice Minister said the minister’s office was not prepared to comment on Wednesday.

Mike Serr, police chief of Abbotsford, B.C., and co-chair of a CACP committee on decriminalization, said police in his community and in Vancouver generally do not charge for simple possession.

He called the prosecution service’s directive a good first step, and said more needs to be done to divert vulnerable people into the health care system. “We need to get this infrastructure in place quickly so that front-line officers have resources to direct people to, [and] that will ultimately get them into the pathway of care.”

The Globe and Mail, August 20, 2020