Reflections from the 2012 MJLH Colloquium: the Impact of Criminalized Behaviour

Posted By Kaitlin Soye – Aug. 21, 2012

The 4th annual McGill Journal of Law and Health Colloquium was held March 10th at McGill Univeristy. The topic was Insight on INSITE: The Evolution of Canada’s Drug Treatment Policy. Featured speakers included lawyers, doctors, researchers, politicians, NGO workers and law enforcement. The event was both informative and engaging.

As the discussion progressed many issues emerged and academic discussion ensued. Two ideas emerged from the discussion that I found particularly interesting and insightful: the role of law enforcement in drug treatment policy and intersectionality of public support systems in drug treatment policy.

Our police officers are the people on the street who apply the law. These are the men and women who are asked to enforce our laws and interact directly with the people who are breaking them. Through discussions with an RCMP officer at the colloquium I learned how strained this interaction can be. A person who is abusing drugs and may be dealing with an addiction cannot be reduced to merely a person committing a crime. Addiction is a disease and can result in a person acting irrationally and dangerously. While it is the responsibility and duty of law enforcement to maintain safety while upholding the law, discretion may be needed. What I learned during our discussion is that police officers are not always trained in the social issues surrounding addiction.  As advocated by a colloquium participant from the RCMP, if police officers are taught about the special needs of a person with a drug addiction there can be more compassion, more effective and humane practises. This could lead to more positive and effective interactions between people with addictions and law enforcement. In law school, I have naïvely neglected to reflect on the role of police officers in the law. In the case of drug treatment policies, I see this as the perfect example of flexibility and interpretation in the law. This is a situation when the spirit of the law may be more important that the specific decree of the law.

Before the Colloquium, I had not considered the depth of intersectionality that exists surrounding drug treatment policies. There are so many actors and stakeholders. I have already discussed the role of the law enforcement, but other stakeholders include the politicians, prosecuting lawyers, community advocates, physicians, researchers, and many more. Almost all programs and policies implicated in drug treatment policies come from the same source. The government pays for our hospitals and doctors; it pays for police, prosecutors and judges. There is federal and provincial research funding and community outreach groups. On a purely economic level, it is not cost effective for these groups to be competing with each other. When these players can work together, funding can be used efficiently and the needs of citizens can be best met.

All interested parties share a common goal and have the best interest of health and safety of citizens. It is clear that incarceration is not going to be the solution to Canada’s drug problem. In the face of the Omnibus Crime Bill C-10 passed by the majority conservative government on March 12, 2012 mandatory minimum sentences may cause problems for our colleagues who work on drug treatment policies and with the people affected. Now is the time for concerned parties’ to work together to progress our policies and practises.

When looking at the intersection of law enforcement, rights and harm prevention the case of prostitution at the Ontario Court of Appeal (Canada (Attorney General) v. Bedford, 2012 ONCA 18) highlights many of the ideas expressed at the colloquium. In Canada, while prostitution was not found to be illegal, many of the activities surrounding it were. In this recent decision, the court found that legal prohibition of living off the avails of prostitution and keeping a “common bawdy house” were unconstitutional, while the prohibition of communication for the purpose of prostitution remained constitutional. These laws were challenged in the context of maintaining the safety and security of people engaged in the business of prostitution.

This ruling may increase the safety of people engaged in the sex trade by allowing them to conduct business in their private homes or to hire security. This extends the fundamental right granted to all Canadians security of the person (s. 7, Charter). The court found that laws compelling prostitutes to work in dangerous situations to be illogical, given that prostitution itself is legal. While the trade is often dangerous, people engaged in prostitution are owed the same standard of protection as any other citizen. A comparison could be made to people who use illegal drugs. Although, they have engaged in a risky activity, they have the same rights as all Canadians to safety and security. This safety could be better delivered to them through general availability of safe-injection sites to minimize harm, reduce violence, and give people better access to need health interventions.

This year’s colloquium was very timely with the INSITE decision being handed down from the Supreme Court of Canada in Fall 2011, this month with the passing of the Omnibus Crime Bill, and Bedford at the Ontario Court of Appeal. Hopefully, the conversations that stated at the colloquium will continue and will lead to progress and change as we engage in drafting and implementing Canada’s drug treatment policies.

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