Could Portugal’s drug policy work in Canada?

By Doug Beazley May 22, 201822 May 2018

Could Portugal’s drug policy work in Canada?

 

Party policy conventions are to politics what fantasy football is to the real thing. Delegates gather to discuss blue-sky proposals to reshape the nation and the world — banning nuclear weapons, for example, or putting new limits on abortion access. Then the professionals weigh in to explain why those ideas won’t fly.

Sometimes the reasons are legal; sometimes they’re political. Sometimes they’re both — which is what happened when Liberal Party of Canada delegates gathered in Halifax last month to talk about following the Portuguese model on drug policy: decriminalizing consumption and possession of small amounts and diverting users into the health care system. The resolution hadn’t even been adopted before key members of Prime Minister Justin Trudeau’s cabinet were taking turns tossing buckets of cold water on the idea.

“I recognize there’s a lot of comparison with Portugal and Canada but I think we have to develop the Canadian model here,” said Health Minister Ginette Petitpas Taylor.

The political reason for rejecting sweeping decriminalization is obvious: the Trudeau government is tied up with the political and regulatory challenges of legalizing recreational marijuana use, and any number of things could still go wrong with that project. The last thing it wants now is a distraction.

The legal reason boils down to the fact that Canada is not Portugal. Understanding why starts with understanding exactly what Portugal did and didn’t do.

Portugal’s Law 30, passed almost 18 years ago, decriminalized illicit drug possession and use. Drug consumption went from being a crime to being an administrative violation — basically, a ticketing offence. Portugal did not legalize drug trafficking and, while someone caught with a small amount of drugs for personal use (up to a ten-day supply) won’t go to prison for it, they will be hauled before something called a Commission for the Dissuasion of Drug Addiction — a panel composed of a lawyer, a doctor and a social worker. The panel evaluates users’ degree of addiction and refers them to counseling and health services.

That referral process — the act of drawing addicts into the health system by removing the threat of prison — may be the real reason the number of heroin addicts in Portugal dropped from 100,000 to 25,000 since Law 30 took effect, and Portugal now boasts the lowest drug mortality rate in Western Europe.

“Decriminalization does nothing more than remove the threat of criminal sanction,” says Eugene Oscapella of Oscapella and Associates, a specialist in drug law. “It doesn’t make it legal to produce, possess, sell or export.”

In other words, Portugal’s ‘radical’ drug policy is both more and less radical than Canada’s approach to cannabis, since Canada is actually creating a legal source of supply for marijuana users. In Portugal, decriminalization and health system diversion go hand in hand; if the country hadn’t substantially boosted its health care outreach to addicts, decriminalization could have made its drug problem worse.

Would decriminalization of illicit drug use in Canada put the country offside with international drug interdiction treaties? Robert Solomon, a law professor at Western University and national director of legal policy at MADD Canada, says that the federal government’s marijuana law, C-45, already violates international treaties by commercializing the supply of recreational cannabis.

“Those treaties basically prohibit the commercialization of recreational drug use,” he says.

Richard Elliott, executive director of the Canadian HIV/AIDS Legal Network, says that the treaties are elastic enough to allow for the decriminalization of possession of illicit drugs for personal consumption — although decriminalizing the “supply side” would be a breach.

“The language of the treaties — and in particular Article 3 of the 1988 Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances — provides sufficient flexibility that this decriminalization (of possession) is permissible,” he says.

The UN would be the least of Canada’s problems if it pursued sweeping decriminalization, of course. While Elliott insists any decision by the United States to punish Canada for decriminalization — by introducing new security measures at the border, for example — would be political, not legal, Oscapella is less sanguine.

“The U.S. is the wild card, the bully on the block. In the past, the U.S. put enormous pressure on this country to stick with prohibition. They could do it again,” he says. “A lot of political mindsets are built on prohibition. So are a lot of careers. Politicians never like to admit they’re wrong about anything.”

But the real obstacle to broad decriminalization may be Canada’s federal structure itself. To the degree that Portugal’s experiment in drug law works, it works because the entire country moved from a punitive model to one based on health care — treating addicts as patients, not criminals.

That required resources — money that could be freed up by putting fewer users behind bars. “It costs roughly $115,000 to keep someone in a penitentiary for a year in this country,” says Oscapella. It also required a unified approach to the problem — something hard to achieve in Canada, a country where criminal law and health services are delivered by two separate (and often antagonistic) levels of government.

And that’s where Solomon sees Portugal’s model failing in Canada. “Look, there are no legal obstacles to Parliament doing what it wants to do to criminal law and procedure,” he says. “The difficulty here is that the federal government no longer has constitutional authority over something it removes from the Criminal Code.”

In practice, he says, that means the provinces could impose strict regulatory measures of their own on drug consumption — amping up age limits or imposing new rules on where they can be used — without providing the enhanced harm-reduction services through public health care that save lives and allow addicts to get clean.

“Say the federal government wants to divert addicts into treatment and education,” Solomon says. “If you maintain a criminal prohibition, subject to exceptions for those who seek treatment, that’s much more likely to be constitutional than if the federal government attempted to set up a free-standing treatment regime. At least, it’s more likely than if you eliminate the criminal prohibition altogether.”

Oscapella argues the potential for federal-provincial disconnect can be overcome by good policy. “Obviously there would have to be some fiscal rebalancing between the federal and provincial governments,” he says.

“Yes, it would be a patchwork. But that’s hardly new. Look at the differences between the provinces in how alcohol is sold, the difference between the public and private models.

“Look, there’s no way to avoid turning this into a political football. It’s always been that. It’s a highly-charged issue that always seems to see rational thought overwhelmed by emotion and fearmongering.”

Which probably explains – better than anything else – why the current federal government is content to let the idea of sweeping decriminalization disappear for now.

Doug Beazley is a regular contributor based in Ottawa.

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