Criminalization vs. Public Health: The Legacy of Canada’s Racially Biased Drug Laws

By: Jenny Zhang

Unpacking Equity is a collaboration between the Public Policy and Governance Review and the Equity, Diversity and Public Policy Initiative (EDPP) at the Munk School of Global Affairs and Public Policy. This series aims to explain equity-related policy issues and break down complicated topics involving equity, diversity and inclusion. Policy professionals can gain a better understanding of these complex issues in order to incorporate an equity lens into their practice. To learn more, please get in touch with the EDPP.

Criminalization vs. Public Health: The Legacy of Canada’s Racially Biased Drug Laws

In April 2016, the United Nations General Assembly Special Session on The World Drug Problem recognized drug addiction as a global public health issue and unanimously pushed towards a greater health approach to its policies. However, Canada exists among the many nations that continue to adopt drug strategies centered around criminalization and punishment. Indeed, the current Canadian legal drug framework operates under the Controlled Drugs and Substances Act (CDSA) and is supported by the Criminal Code of Canada and the Youth Criminal Justice Act. Through its legacy of drug laws, Canada’s approach to drug policy remains widely prohibitionist and more importantly, racially motivated in nature. Massive expenditures for law enforcement dominate the area and contribute to the embedded racialized processes that have existed since the early 1900s.

How History Defined Canadian Drug Laws

Starting from the early 20th century, prohibition laws regarding the use of certain substances were passed, based not on empirical evidence of their potential harm, but based on moral judgements about the immigrant groups who tended to use them. Prior to 1908, opium was widely used by Chinese immigrants and was not seen as a harmful drug. However, as the construction of railroads came to a close, Chinese workers began to seek employment opportunities in other labour markets while the decline of the gold rush was decreasing economic opportunities overall. Thus, Chinese immigrants soon came to be seen as “economic threats” to Canadian society, provoking severe anti-Asian sentiments and policies in Canada (e.g., the $500 Chinese head tax). Indeed, the Minister of Labour at the time introduced the 1908 Opium Act, which prohibited the possession, manufacturing, import, and sale of opium, despite its harmless use.

Shortly after, Canada passed The Opium and Narcotic Drug Act in 1911 to add new drugs to the list of prohibited substances and harsher penalties. Additional amendments to this Act followed suit, with the most significant amendments being the grant of greater police power, specifically in relation to the powers of search.

Despite a decline in drug trends in 1986, the Prime Minister at the time declared a War on Drugs, following the United States’ pursuit. In 1996, the CDSA was passed to enable increased law enforcement powers regarding the arrest, search, and seizure of drugs and tougher maximum sentences. The continued fight against the War on Drugs also granted the government to deploy vast monetary resources in strengthening its police system. In 2008, 70% of Canada’s National Anti-Drug Strategy was allocated to enforcement strategies, leaving little room for funding of demand reduction initiatives such as education, social housing, treatment, and prevention.

With greater expenditures on enforcement strategies and police systems, officers are often pressured to meet the demands of these expenditures; otherwise, they will be deemed as “wasteful” and “unnecessary” – especially when tax dollars publicly fund them. A 1992 paper highlighted that “the influx of resources to the police from Canada’s Drug Strategy in 1987 enabled the police to demonstrate and maintain a high level of ‘productivity’ in overall investigations, seizures, arrests, and charges.”

Disproportionate Impact on Black and Indigenous Communities

Black and Indigenous communities are often the targets of arrest-hungry officers, who take advantage of their neighborhoods’ poor infrastructure to fill arrest quotas. A 1992 Washington Post article found that “[m]inorities especially suffer from the fact that inner-city drug dealers tend to congregate on the street, not indoors as in more affluent suburbs where the bulk of illegal substances is actually consumed. Because street-level dealing is so easy to spot in Black communities, police target it with ‘buy-bust’ arrests that pump up their statistics and appease the public’s demand for action.”

As a result of heavier focuses on prohibition and intensive policing, Black and Indigenous communities in Canada have become disproportionately subjected to the abuses of the criminal justice system. A 2011 research paper found that Black Canadians “are over three times more likely to experience multiple police stops than whites or Asians and are three times more likely to report being searched during these police encounters.” These practices of over-policing Canada’s Black population has led to their significant overrepresentation in drug-related crimes, as a 2002 Toronto Star exposé revealed that Black Canadians accounted for 25% of the population charged for simple drug possession, despite constituting only 8% of Toronto’s population.

Moving Forward: Adopting Harm Reduction Strategies and Racial Impact Assessments

Although the history of Canadian drug policy was defined by heavy prohibition, Canadian medical experts viewed drugs as a public health problem rather than a criminal problem. After producing extensive reports, the Le Dain Commission concluded with support towards the decriminalization of drugs and advocated for greater attention to harm reduction strategies. Despite this, however, very few of their recommendations have actualized in Canadian drug policy.

The ongoing criminalization and focus on heavy enforcement strategies have exacerbated an intense racial inequality at the structural level, ultimately pushing many Black and Indigenous Canadians into the shadows of the criminal justice system and punishing them for what would otherwise have been a public health-related issue. This analysis reaffirms the need for evidence-based decision-making and reconsideration of Canada’s approach to drug policy. Rather than basing them off of moral judgements and outdated fears, health-based and harm reduction policies should be expanded to protect the well-being of all Canadians, and racial impact assessments should be included in evidence-based decision-making to highlight and address the racial disparities in the institutions.

Jenny Zhang is a 2021 Master of Public Policy Candidate at the University of Toronto’s Munk School of Global Affairs and Public Policy and a Senior Equity Analyst for the Equity, Diversity, and Public Policy Initiative. Her recent experiences include supporting trade and economy files for the Asia-Pacific branch at Global Affairs Canada and researching wealth and social disparities in Ontario’s Black Francophone youth for the Public Good Initiative. She earned her B.A. with Honours in Political Studies and Economics and has a keen interest in economic development, trade, foreign affairs, and social policy.

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