What is ‘Just Desert’ for Drug Use?

As discussed in the first article of this series, there are a few different approaches governments might use to respond to the drug crisis. Until recently, Canadian jurisdictions have focused on combatting drug use through criminalization and incarceration. However, in the past few years, our governments have realized that approach has been relatively ineffective and are instead trying different responses. Instead of incarceration and safe supply, Canadian governments should be focused on treatment and recovery. I will examine each of these options in turn, closing with ideas for a way forward.  

‘Safe Supply’

The federal government should not provide exemptions for safe supply, decriminalization, or safe injection sites. Safe supply and thereby government endorsement of drug use is dangerous and problematic. The only use for publicly funded drugs should be during treatment to manage symptoms of withdrawal and help addicts get clean. In contrast to the ‘safe supply’ approach pursued by the BC government and others, a group of researchers at Simon Fraser University chose instead to call safe supply ‘Public Supply of Addictive Drugs,’ to avoid the implication that these drugs are safe for consumption. This group concludes that Public Supply of Addictive Drugs “represents a human experiment that conflicts with the ethical principles of physicians, clinical psychologists and other regulated health professionals.”[1]

There are two main problems with safe supply. One is the implication that these drugs are safe. They are unsafe even though they may be safer than some alternatives. In 2023, BC permitted doctors to prescribe ‘safer supply’ fentanyl, a drug that is at least 10 times stronger than hydromorphone, which is typically used for safe supply. Of particular concern, the existing protocols do not require parental consent if minors access fentanyl through safe supply.[2] Additionally, some of the impacts on public safety may be a result of safe supply and safe injection sites. For example, in Ontario, calls for provincial review of safe injection sites have increased since a woman was killed near a site in Toronto.[3] Others have noted increased theft rates around safe injection sites to fund drug addiction.[4]

Second, journalist Adam Zivo found that “safe supply” may also be fueling a different kind of opioid crisis. Safe supply drugs still give a high, but not as much of a high as stronger drugs. Drug users near safe supply programs will often take the safe supply drugs and sell them in the community to help them afford stronger drugs. Hydromorphone is the drug typically used in safe supply, and street prices for hydromorphone have decreased considerably, particularly as one gets closer to a safe supply site.[5] This seems to have extended to the point where safe supply drugs are the new popular drug in high schools and have reportedly been the cause of overdoses in teenagers.[6] Some will distinguish between safe supply and supervised injection sites, where addicts are required to consume drugs under supervision, and the drugs cannot be sold in the community. This mitigates concerns about drugs ending up in the community but concerns about public endorsement and provision of drugs remain.

The safe supply approach leans towards treating drug addiction as solely a health care problem, leaving no room for moral agency and responsibility. It treats addicts as mere victims of their circumstances and does not encourage them to change.

Incarceration

While the drug crisis cannot be treated solely as a health care problem, it also must not be treated solely as a criminal problem. No jail time should be required for drug possession or use, except as a last resort. Mandatory jail time can result in people being incarcerated for drug possession or drug-related offenses when those offenders could be dealt with more appropriately through an alternative sentence. Convictions for petty crimes tend to fill our prisons with people who are not dangerous and do not need to be separated from their community through incarceration. Alternative sentences can prevent anti-social associations and promote good behaviour.[7]

Ultimately, the goal of the justice system should be to enact both just punishment and restoration, to work towards peace and harmony within communities.[8] Jail time does not incorporate restoration back into the community and can make the problem worse for drug addicts. Jail time could also put addicts at an increased risk of overdose. If drug users go to jail, they lose their tolerance for drugs over time. They generally don’t receive the proper supports to get clean while in jail, so they go back to drugs when they are released. Since they have lost their tolerance while in prison, they might go back to the dosage of drugs they used to take and end up overdosing.[9] Even if there are drug treatment programs within prison, there is a lack of help for people to be reintegrated into their communities upon release, making it easy to return to drugs. And many prisoners still have access to drugs while in prison. Some correctional facilities have even incorporated safe injection sites into their facilities.[10]

People with criminal records face multiple barriers to employment, housing, and other areas necessary for reintegration and change.[11] Giving a drug user a criminal record makes it harder for them to live an honest and clean life down the road and generally does not help them get off drugs. Prisons should be reserved for removing dangerous offenders from society. Incarceration should remain an option for those who produce and traffic drugs. And of course, other crimes committed due to drug addiction should be fully prosecuted under the criminal law. Drug use and possession, however, are not dangerous offences that require a person’s removal from society.

Nonetheless, the use and possession of hard drugs should remain illegal under the Controlled Drugs and Substances Act. Treatment programs should be offered by a variety of community organizations, in collaboration with the Ministries of Justice and Health, that have proven effectiveness in combatting drug addiction. The effectiveness of these programs should regularly be reviewed. Such programs should not solely focus on getting a person off drugs but should also seek to provide support in re-entering the community without the need to return to drugs.

Treatment and Recovery

While addicts may want to get clean, treatment is not always an appealing option while they are addicted. Some drug addicts need drugs to help with withdrawal and to ease them off addiction. Any drugs that are provided should be done under supervision, ensuring that drug use is monitored and users are pushed towards treatment programs. Risk of arrest in itself might push someone into a treatment program. For example, one of the key advisors on Alberta’s drug addiction approach, a former drug addict, noted that the ultimatum of treatment or jail saved his life.[12] 

Canadian drug policy should not simply focus on drug overdose and death, but also on the broader range of harms that drug use causes, providing opportunity to overcome addiction. Drug users must be encouraged to change, if necessary through somewhat coercive measures. Canada should incorporate a multidisciplinary drug court or dissuasion commission which presents (and enforces) treatment options as alternatives to incarceration. In the case of simple drug use or possession, the court or commission may choose to make the person pay a fine. In the case of more regular use or addiction, the court or commission may push the person into treatment. Canada must not rely solely on voluntary treatment programs to solve the drug crisis. One author writes, “A voluntary drug treatment program works about as well as a voluntary imprisonment program.”[13] In other words, a person who is severely addicted is not likely to seek treatment without external factors pushing them in that direction.

Two international examples are helpful in understanding how to approach Canadian drug policy. Portugal overhauled its drug policy in 2001. Drug trafficking remains a criminal offence, but drug possession and use were decriminalized and became an administrative offence. People caught with drugs are brought before a dissuasion commission, which administers fines and points people towards treatment programs. A psychologist or social worker will interview a drug addict, and then a panel will offer suggestions about the best approach to stop drug use. The person is then fast-tracked to whatever services they are willing to accept. If help is refused, they may be required to do community service or pay a fine.[14]

Between 2008 and 2019, Portugal’s death rate due to drug overdose ranged from 10 to 72 across the entire country of over 10 million.[15] In 1999, comparatively, the country had 369 overdose deaths for a population of a similar size.[16] Recent reports, however, reveal that enforcement has become increasingly lax and drug use and overdose have increased in recent years.[17] Although Canada should not entirely emulate what has been done in Portugal (e.g., I have argued for criminalization of drugs rather than simply making drug use an administrative offence, as well as more involuntary treatment), we can learn from Portugal’s efforts to help drug users change through alternative penalties for an offence.

A second example is American states that have incorporated drug courts into their justice systems. Drug courts offer an alternative to incarceration and include a multidisciplinary team of professionals who can respond to individual cases. Based on a person’s risk and needs assessment, the court determines what kind of treatment should be provided and for how long. If a drug user successfully completes treatment without further drug use or criminal activity, any criminal charges for the initial drug conviction are dropped. If a person uses drugs while in treatment, the court determines whether to alter treatment or incarcerate the person. This approach does not eliminate a criminal record but provides the opportunity of doing so if the person is compliant with treatment. These courts have demonstrated a reduction in drug use and criminal activity and a decrease in incarceration rates. At the same time, it is estimated that drug courts save the state between $5,680 and $6,208 per person compared to incarceration.[18]

Because of the unique nature of drug use and abuse, with both health and criminal elements, the idea of ‘just desert’ requires a unique penalty. This is (and ought to be) applied in other areas of sentencing as well. A person who steals does not need to go to jail – they need to pay back what they have stolen. A person who commits a minor offence may not need to go to jail but instead be sentenced to probation so they can serve their sentence in the community. Prison, however, remains an option if the offender fails to meet the conditions of their sentence. Similarly, a person who is addicted to drugs may be sentenced to a treatment program that will help them get clean and reintegrate into their community. Depending on the particular offence and the number of times they have appeared before a court or commission, the penalty may vary from fines to treatment, with threat of incarceration as an incentive to complete treatment, and with incarceration only as a last resort.

Conclusion

The Canadian drug crisis is a challenging public policy problem. While incarcerating drug users has not worked to reduce drug use or reduce harm, decriminalization is also a flawed approach. The ideas of the image of God and moral agency help provide a better foundation for responding to the ongoing drug crisis. This series is an effort to consider drug policy through various Christian principles, while also looking at some of the practical elements and challenges of the drug crisis. I acknowledge that there are certainly no easy answers, and a wide range of possible approaches. Additionally, there are multiple pieces of the issue that I have not considered in depth in this series.

If you have any questions or comments on this series, please feel free to contact Daniel Zekveld at [email protected].

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[1] Akm Moniruzzaman et al., “Public Supply of Addictive Drugs: A Rapid Review,” Simon Fraser University, Centre for Applied Research in Mental Health and Addiction.

[2] Adam Zivo, “Reckless: British Columbia’s “safe supply” fentanyl tablet experiment,” MacDonald Laurier Institute, December 2023.

[3] Derek Finkle, “’Safe injection’ ruined my community; about time for a provincial review,” National Post, Oct. 19, 2023.

[4] Tara Riley, as told to Derek Finkle, “Harm reduction gone rogue: I worked at a safe injection site and it was disturbing,” National Post, Nov. 30, 2023.

[5] Adam Zivo, “The Liberal government’s safer supply is fuelling a new opioid crisis,” National Post, May 9, 2023.

[6] Adam Zivo, “A 14-year-old is dead. Her dad blames ‘safer supply’ drugs,” National Post, May 31, 2023.

[7] See the Supreme Court of Canada’s landmark decision on conditional sentencing in R. v. Proulx, 2000 SCC 5, at para. 111.

[8] See R. v. Proulx, 2000 SCC 5, para. 111.

[9] Perrin, Overdose, 88.

[10] Tristin Hopper, “Some Canadian prisons now have clinics where inmates can freely use smuggled drugs,” National Post, Sept. 14, 2023.

[11] “The Drug Report: A Review of America’s Disparate Possession Penalties,” Prison Fellowship, 29.

[12] Rachel Emmanuel, “Meet the recovered drug addict who became the Alberta premier’s chief of staff,” True North, Jan. 2, 2023.  

[13] Twenty-First Century Illicit Drugs and Their Discontents: Methamphetamine—The Downs of Ups, or Tweaking the Night Away | The Heritage Foundation

[14] Daphne Bramham, “Decriminalization is no silver bullet, says Portugal’s drug czar,” Vancouver Sun, Sept. 8, 2018.

[15] Beatriz Luz, “Number of drug overdose deaths in Portugal from 2008 to 2020,” Statista, Oct. 13, 2023.

[16] Niall McCarthy, “Then & Now Portugal’s Drug Decriminalization,” Statista, Jan. 24, 2020.

[17] Pat Dooris and Jamie Parfitt, “Portugal, the drug decriminalization success story Oregon followed, now appears to be in trouble,” KGW, July 21, 2023.

[18] “The Drug Report: A Review of America’s Disparate Possession Penalties,” Prison Fellowship, 26.

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