Quebec quietly told prosecutors to divert drug possession cases away from the courts

It was a quiet change, issued by Quebec's Justice Ministry in April 2023 with no fanfare: prosecutors should consider diverting simple drug possession cases away from the justice system, choosing treatment options instead of criminal charges.

The directive, signed by Justice Minister Simon Jolin-Barrette, instructs Quebec's prosecution office, the DPCP, to weigh the public interest and the risk to public safety before pursuing charges against people suspected of simple drug possession.

Louis Letellier de St-Just, the chairman of the Quebec Association of Addiction Workers and head of harm-reduction group Cactus Montreal, said the shift was mainly prompted by a change in federal legislation. He said the move prioritizes a "health approach" rather than a "criminal approach."

"This is the correct approach because you do not fill prisons with people who need health services," he said. "This is not the place to have health services for your problem, addiction problem."

He stressed the need for more addiction services.

Following the directive, the DPCP issued its own instructions to prosecutors, telling them to consider laying criminal charges for simple drug possession only in cases where drugs are being used in the presence of minors, while driving, when a weapon is present and in cases with links to organized crime.

The DPCP instructions also recommend charges in cases where the drug offence is "committed in circumstances that disturb the public peace or compromise the sense of security of residents and people who frequent a neighbourhood."

The new prosecutorial guidelines, posted quietly in the Official Gazette, and first reported in Le Devoir on Monday, took police by surprise.

Laval police said in a statement that they had not been advised of the change, but added that the new directive affects prosecutors, not police. Quebec's Public Security Ministry said in a statement that the directive was not intended to affect police behaviour, nor reduce the number of cases submitted by police to the DPCP.

Montreal police, however, said officers were already diverting drug users toward addiction resources. A spokesperson said their investigators were focused on drug traffickers and organized crime networks, not simple drug possession.

The new Quebec directive came after the federal government passed Bill C-5 in June 2022, changing the Controlled Drugs and Substances Act. The bill allows prosecutors — and even police — to exert greater discretion toward those found in possession of small quantities of drugs.

The bill also repealed mandatory minimum sentences for some crimes — penalties the Liberal government said disproportionately harmed Indigenous and Black offenders and those struggling with addictions.

In 2012, the Conservative government added mandatory minimum sentences for drug offences committed under certain circumstances. The Supreme Court later ruled some of those minimum sentences, including a one-year mandatory sentence for a drug offence, violated the Charter of Rights and Freedoms.

The DPCP declined to share data showing how many cases involving simple drug possession had been diverted away from the justice system.

The directive change does not mean Quebec has decriminalized nor legalized simple drug possession. It simply gives prosecutors the discretion whether to lay charges or not, and recommends that they prioritize rehabilitation in many cases.

Decriminalization, by comparison, would prevent prosecutors from laying charges for simple drug possession, while legalization would make drug possession similar to possessing alcohol or cigarettes.

British Columbia announced in April that it was recriminalizing the possession of small amounts of some drugs after a pilot project exploring decriminalization prompted troubling stories about problematic street drug use in hospitals, parks and at bus stops.