By Trevor Busch
Changes made by the federal government to the enforcement of the Controlled Drugs and Substances Act (CDSA) appear to be implementing a de facto decriminalization of the possession of illicit substances, a policy development that greatly concerns Taber Police Service Chief Graham Abela.
“One policy item that I wanted to bring in that is causing me some troubles as the chief, is that there’s been some amendments to the Controlled Drugs and Substances Act, specifically under Section 10,” said Abela at the Taber Municipal Police Commission’s May 17 meeting. “In 2020, Taber Police Service received a letter – as did every other police service in the province – advising that for certain reasons, prosecutions of drug offences were going to be limited, mostly due to COVID concerns that were happening during the pandemic in the province. Lack of capacity around federal prosecution services – staffing – to have the people in place to do the actual prosecutions.”
In Canada, drug matters are handled by federal Crown prosecutors. Relating the circumstances of a situation involving a drug charge in the community, Abela admits he was broadsided by the actions of the federal Crown involved in the case.
“It wasn’t until about 45 days ago I was at work, and I received information that the federal Crown had withdrawn a charge that we had laid of a simple possession of methamphetamine, and I didn’t know why. I was kind of flabbergasted that the Crown, at first instance, had withdrawn a charge that we had gone through, found the elements of the offence and determined that the charge should be laid. They wouldn’t prosecute it, they withdrew it.”
Considering the quantity of drugs that had been seized by police during the arrest, the TPS laid a charge of trafficking.
“That charge surrounded an arrest that was made by Taber Police officers at – I won’t go into detail about it – a local business, where a dispute had occurred where the officers made arrests, and they encountered 23 grams of crystal methamphetamine on someone’s person,” said Abela. “Twenty-three grams of crystal methamphetamine, in Taber, is a lot of crystal methamphetamine. We put forth to the prosecution as a 5.1 (CDSA), which is a possession for the purposes of trafficking. The Crown reviewed that and determined that their wasn’t sufficient evidence for a trafficking charge. I disagree with that, but they are the ones who prosecute that, and as a result felt it should only be a 4.1 prosecution. But because the Crown no longer prosecutes 4.1 except in extenuating circumstances, that person in our community who was involved in a disturbance who had 23 grams of crystal methamphetamine, walked away without any consequences associated to that action.”
Another drug-related incident resulted in the same sequence of actions taken by the Crown.
“We had another case, where we had a theft that occurred at a local business where money was stolen from a tip jar… we got the call, we found the culprit a block away from the incident,” said Abela. “Upon arrest, they had 4.5 grams of cocaine on them, and again, at first instance the Crown withdrew that charge. I was like, ‘I’m not sure what’s going on. I haven’t received any information from the federal Crown or anyone telling me any changes with the law.’
Following these developments, Abela met with federal prosecutors who explained that enforcement of drug-related matters was being reorientated from a public safety to a health and social issue.
“I had a meeting with the federal Crown prosecutor, as well as the person in charge of federal prosecutions in the province. What I was advised was… that under the evidence-based diversion principles under Section 10 of the Controlled Drugs and Substances Act, the mandate for drug prosecutions has been moved away from a public safety approach to primarily a health and social issue. Furthermore, that intervention should be founded on evidence-based best practices to protect the health, dignity and rights of individuals who use drugs, and to reduce harm to those individuals and families in those communities’.”
Abela pointed out the approach being directed by the federal government is intended to address the “root problems” of substance abuse including by encouraging measures such as education, treatment, active care, rehabilitation and social re-integration, and that “judicial resources are more appropriately used in relation to offences that pose a risk to public safety.”
“So this was new to us. We had not received any correspondence from the Crown that they had changed the Controlled Drugs and Substances Act,” said Abela. “Which surprised me.”
Under CDSA Sec. 10.2, Abela said police are being directed to provide warnings rather that laying charges, or refer the individual to a “program, agency or other service to assist.”
While that sounds reasonable, Abela identified the fly in the proverbial ointment.
“The federal Crown, and the federal government, has not provided any funding for programming in my community – or in Alberta that I know of – that assists with any program to assist those with drug use or abuse challenges.”
Actually laying a charge of possession of a controlled substance that will not be immediately withdrawn by a federal Crown has now become much more challenging, argues Abela, who went on to suggest the federal government has now “abdicated its responsibility for public safety.”
“It’s only in the most extenuating of circumstances that they actually want to do that. The guidelines are clear, and the prosecutors were clear with me, that 4.1 possession of drug charges in Alberta will not be prosecuted except in extenuating circumstances. Which means that you can be an individual carrying 23 grams of crystal methamphetamine and face no prosecutorial outcome as a result of breaking the law. The law is still that it is against the law to possess crystal methamphetamine, but the federal government has, in my opinion, abdicated its responsibility for public safety and made a total shift toward drug possession being a health problem without providing the resources, funding and programming to effectively divert these drug possessions in a successful manner.”
Abela isn’t convinced that all aspects of drug use and abuse – including the many risks it presents for property and other crime – can be solely viewed through the lens of public health.
“As a chief of police, this concerned me greatly, and I brought this up with the Alberta Association of Chiefs of Police… the problem that I have is, if the Crown won’t prosecute, and you don’t have an effective program in order to deal with the outcome of the behaviour, for all intents and purposes, through a policy decision of the federal Crown, the prosecution of simple possession is no longer achievable in this community. I have great concern, as a chief of police, when 23 grams of methamphetamine, which is a large amount of crystal methamphetamine, can be simply possessed, used, consumed – and all the ails that go with it including the thefts that we see, the break and enters that we see, the odd and strange behaviour, the violence that accompanies it, the ramming of police cars, the high speed pursuits – all of those public safety issues are put under the lens of public health.”
Uncritical of the efficacy of treatment and programming to assist people who suffer from drug addiction, Abela still believes it has to be a hybrid approach that involves some measure of enforcement.
“I am a true believer in trauma-informed police practices, I’ll be the first to tout trauma-informed police practice, and I was one of the founders of TCAD (Taber Community Against Drugs) attempting to help those that suffer from drug use and abuse, and I have no problem with diversion methods and am a supporter of proportional models associated to drug prosecutions… but I just can’t stand behind this. And I am concerned – it’s very difficult as the person responsible for public safety in the community to be in a situation where I feel I can’t do that, because I don’t have the teeth of the justice system behind me to assist with keeping the community safe, either in a prosecutorial method, or in an alternative method that is funded.”
Abela is deeply concerned about the message these CDSA changes will broadcast to the public, and how some of the enforcement implications might reflect negatively on law enforcement.
“I don’t think the public is aware that this is occurring. I’m in a position now where if I get a phone call from someone that says, ‘there’s someone on the street corner with 4.5 grams of crystal methamphetamine’, what do I do? If I go to that call, I know it’s not going to be prosecuted. So ethically, if I know it’s not going to be prosecuted, as a police officer how do I go and interfere with that person’s rights and liberties, associated with the actions they’re undertaking, if I know the prosecutorial service won’t prosecute them? And I don’t have an alternative method to deal with them?”
Comm. Ferris Zaugg suggested police operate status quo and force the federal Crowns to continue to withdraw possession charges.
“Let them keep withdrawing, then it’s on their heads – you did your job, you did it right – and they can compile this and say, ‘look, here’s this case, and this case, and this case’, and then you have something to take to the rest of the chiefs of police (AACP) and say, ‘this is occurring, this is the lack of support we’re getting from the federal prosecutors to keep these drugs off the street because we have nowhere to send these people to, other than give them a ride to Lethbridge’.”
That is an option, said Abela, but one that might result in a lot of discouragement among officers.
“That is something that we’re looking at doing. The problem that we have though – and you know, you served as a police officer for a long time – when you don’t have the support of the Crown to assist in the investigations and prosecutions that you’re bringing forth, you’re kind of beating your head against the wall. Morale, and the willingness to investigate, matters where there is no outcome. It’s difficult to motivate police officers to do that.”
While not an ideal situation, Zaugg suggested it would still help keep drugs off the streets.
“I totally understand what you’re saying. The only thing I’m thinking – like you brought up – police taking those drugs and processing that person for the night, you can reduce crime – break and enter, or theft, or violence, or whatever – for that night the potential crime rate goes down. You don’t get the satisfaction that you did your job, but you don’t see the end results as clearly.”
The problem of “catch-and-release” criminal activity is on the rise, and policy changes of this nature are problematic in keeping habitual offenders off the streets.
“The person who had the charges withdrawn has been dealt with by police 72 times,” said Abela. “So how many times do we have to do that until… I hear what you’re saying, and you can hear the frustration in my voice as well. We’re not going to leave the public at risk, the Taber police are going to do their job. What I’m saying to you is we have a systematic issue that we have no ability to manage and control that is causing us – in my view – to decrease our ability to keep the public safe.”
Zaugg argued the public needs to be aware of these changes.
“If this is a fact, and this is happening, let the public know what’s going on, so if and when we have more elections happening, they know what’s going on. Who supports this lack of support from the federal government.”
“I’m not sure I can meet the public’s expectation associated to drug possession anymore,” replied Abela.
Comm. Barry Clements, on the other hand, wondered if it might not be better to not inform the public.
“It is a point of view, and that’s why I’m here talking to you… it’s better to be honest and tell the truth about what is going on, and be accountable to that, than to do what in my opinion the federal government did, and that is to sneak the legislation in that decriminalizes drugs in a different way,” said Abela.
Following debate, the commission voted unanimously to table further discussion of CDSA changes to drug prosecution to an upcoming meeting.
“All I’m saying is a consequence of behaviour creates an environment, something that we value as a community, and that we value as a society,” said Abela. “And there’s no consequence any more.”