The previous chapter examined how
people first come into contact with the criminal justice system through the
enforcement of criminal legislation. Several questions remain, however. What
happens once a person has been charged with a drug offence? Who is responsible
for prosecuting drug cases? What type of punishment do people receive? Who ends
up with a criminal record? Have there been any challenges to the constitutional
validity of drug legislation? These issues and others related to the criminal
justice system are reviewed in this chapter.
The Federal Prosecution Service
(FPS) is the lead prosecution agency with respect to drug offences in Canada.
Its mandate is to prosecute offences in every province and territory under a
variety of federal statutes, including the CDSA. Its work consists mostly of
drug prosecutions.
Under
the CDSA, provinces can exercise jurisdiction to prosecute if a drug proceeding
was commenced at the instance of the provincial government. Presently, only two
provinces–Quebec, and to a lesser extent New Brunswick–have exercised this
jurisdiction. Thus, in Quebec, the FPS prosecutes only offences that have been
investigated by the RCMP. In the rest of Canada – apart from New Brunswick –
the service prosecutes drug offences that have been investigated by a
provincial or municipal police force or the RCMP.
The FPS has 300 full-time in-house
lawyers in 13 offices across the country and approximately 750 standing agents
from the private sector, who conduct drug prosecutions on behalf of the
Attorney General of Canada. Generally, the police investigate an offence and
lay a charge, which is followed by a prosecution. In certain provinces – such
as British Columbia, Quebec and New Brunswick–the police are required to seek
Crown approval before laying a charge.
While complex cases still represent
a fairly small percentage of cases prosecuted by the FPS, they are becoming
more common and are already very time consuming for prosecutors.
…Most
cases are of low or medium complexity; however, the complexity of cases is
increasing and complex cases are becoming more common. Currently, it is
estimated that complex cases make up 7 percent of the caseload but use 60
percent of prosecutors' time. Complex organized crime cases require the
involvement of Justice at an early stage because of the legal issues associated
with the collection, organization, and admissibility of evidence. [1]
The total cost of drug-related
prosecutions conducted by the FPS is approximately $57 million per year–$35
million for in-house counsels and $22 million for standing agents. The FPS
estimates that for the year 2000-2001, the cost of prosecuting cannabis
possession was approximately $5 million, or roughly 10% of the total budget of
$57 million.[2]
During our deliberations, we were
not given much detail on the costs to the provincial court system of
drug-related prosecutions. The 1996 study by CCSA already presented in a
previous chapter[3] estimated court costs for 1992 at
approximately $60 million. One would assume that, with nearly 50,000
people currently charged per year for drug offences, and with the increased
complexity of these cases, court administration costs would be significantly higher
than the amount estimated in 1992.
The Auditor General estimated that
in 1999 Canadian criminal courts heard 34,000 drug cases that involved more
than 400,000 court appearances.[4] Other court-related costs are the
considerable resources spent on legal aid. While we did not receive information
on how much of these costs should be allocated to drug-related offences, we do
know that in 1996/1997, $860 million was spent on court administration costs,
and that in 1997/1998, $455 million was spent on legal aid.[5]
Drug
courts originated in the USA in the late 1980s as one of the measures in the
“war on drugs”. The arrangement essentially involves permitting the judge
hearing a case involving narcotics to order treatment measures instead of any
other form of sentence. There are now approximately 2,000 drug courts in the
USA and they have apparently dealt with about 200,000 individuals. The primary
task of these courts is to deal with offenders whose offences did not involve
violence and who have a history of drug use (including alcohol). Two approaches
are taken: one is applied before sentencing and the other after sentencing. In
the former case, the charges are suspended and in the latter case it is the
sentence of probation or imprisonment that is suspended. Responses include
intensive judicial supervision, long-term clinical treatment, frequent random
urine tests, and related services (housing, employment, etc.). Various assessments
of the system claim that the benefits include a reduction in drug use and
delinquency as well as a reduction in the costs to the criminal justice system
(it costs approximately US $2,000 to deal with a delinquent in the drug court
system as compared with between US $20,000 and $50,000 for a criminal
conviction combined with a prison sentence).[6]
Drug
courts have also been established in Australia (1999), Ireland (1998) and
England (1998).
The Committee visited Canada’s first
drug treatment court (DTC) during its travels to Toronto. Established in 1998
as a pilot project with funding support from the National Strategy on Community
Safety and Crime Prevention, this initiative brought together many players
including Justice Canada, Solicitor General Canada, FPS, the Ontario
government, the provincial court, the Centre for Addiction and Mental Health
(CAMH), the Toronto Police Service, the City of Toronto Public Health
Department and a range of community-based service organizations. The pilot
project is currently funded to December 2004.
A second drug treatment court pilot
project was established in Vancouver in December 2001. It also uses an
inter-sectoral model and is intended to ensure intensive case management and
linking of participants to community resources and skills development programs,
as required. While the Toronto DTC uses the Centre for Addiction and Mental
Health as its treatment provider, treatment providers in Vancouver tend to be
more locally based.
Drug
treatment courts are specifically designed to supervise cases of drug-dependent
offenders and are based on knowledge that incarceration alone does not lead to
a reduction in drug use and related criminal activity. Typically, the criminal
justice system does not address substance abuse problems or the root causes of
these problems – which may include unemployment, homelessness, physical and
sexual child abuse histories, family discord and a range of mental and physical
health problems. DTCs are based on research that demonstrates that offenders
with substance abuse problems commit fewer crimes when they are enrolled in
treatment programs.
Another
underlying assumption is that through therapeutic jurisprudence approaches such
as drug courts, which are intended to provide rehabilitative and reintegration
outcomes for drug-addicted offenders, the criminal justice system, in
partnership with treatment providers and community services, can act as a
change agent in altering the course of the addict's life. [7]
The Toronto DTC provides court-supervised
treatment for people who have a dependency on cocaine and/or opiates.
Non-violent drug-dependent offenders charged with possession of, or trafficking
in, small amounts of crack/cocaine or heroin, or with prostitution-related
offences, are eligible for the program. In all cases, the offender is screened
and assessed by a treatment provider. Admission is voluntary but must be
approved by the Crown. Factors considered include other current criminal
charges, the potential for risk to the community and the seriousness and
circumstances of the offence. Two tracks have been established. In general, the
first track is for those with limited or no criminal record and a charge of
simple possession. They are eligible to enter the DTC prior to plea–once the
program is completed, the charge is stayed or withdrawn. The second track is
for those with more serious criminal records or a trafficking charge. They are
required to plead guilty–once phase I of the program is completed, the offender
receives a non-custodial sentence and is placed on probation (phase II).
Failure to complete phase I results in the offender being expelled and
sentenced.
The system is based on close
collaboration between the Court and treatment systems. The offenders attend
court sessions on a regular basis–the court sits twice a week–where the judge,
in consultation with the DTC treatment team, reviews their progress. The DTC
team includes the DTC judge, crown prosecutor, duty counsel, a representative
of probation services, court staff, community/court liaison staff and treatment
staff. Decisions are made regarding future treatment and judicial involvement.
Continued compliance is encouraged through a system of graduated incentives and
sanctions–this is accomplished by releasing the offender on bail with
appropriate conditions that must be satisfied. Relapses are anticipated as part
of the recovery process and do not automatically lead to expulsion. Honesty and
accountability are important, however. Failure to meet other conditions, such
as attendance in court or providing a urine sample, can result in a range of
sanctions, including revocation of bail for up to five days.
The offender is involved in a
structured outpatient program geared to his or her specific needs. Treatment
lasts approximately one year, during which the offender works closely with a
case manager. Treatment includes: group and individual counselling, ongoing
case management, regular and random drug screening, and addiction medicine
services – including methadone maintenance where appropriate. Treatment staff
also collaborate closely with community resources and agencies to meet the
needs of participants. To complete the program, the offender must not have used
crack/cocaine and/or heroin for an extended period of time and must also
demonstrate a fundamental life-style change involving improved interpersonal
skill development, stable and appropriate housing, and educational and
vocational success.
The DTC initiative seems very
encouraging although it is clear that evaluations will have to be conducted to
ensure that these programs are effective. We were told that there are very few
existing comprehensive, well-designed evaluations of drug treatment courts but
that results of more comprehensive evaluation should be ready in 2002-2003.
Problems to date include the following: most of the evaluations or research
have taken place within very limited time frames; there has been no significant
follow up to look at whether there has been re-use or abuse of drugs and
criminal recidivism; and there has been a lack of adequate comparison groups
from which to draw conclusions about the impact and effects of the program.
Also discussed were differences from American drug courts, where mandatory
minimum sentences and harsher penalties in general are a significant incentive
for American participants to remain with the program.[8] Patricia Begin, Director of Research and
Evaluation at the National Crime Prevention Centre, provided the following
preliminary details of the Toronto DTC:
Briefly,
the Toronto evaluation is using a quasi-experimental design. The comparison
group is composed of those clients who were assessed as eligible to enter the
program and made the decision not to participate in the drug treatment court,
but rather go through the traditional criminal justice processing.
Between
April 1999, when the evaluation data started to be collected, and October 5,
2001, there were 284 clients involved in the drug treatment court. Eighty-three
per cent, or 234, are the experimental group, and 17 per cent constitute the
comparison group of 50 clients.
In
the experimental group, 16.7 per cent are still in the program; 13.7 or 14 per
cent have graduated, which is 32 graduates; and 62 per cent have been expelled.
The overall retention is 31 per cent.
One
of the things the research has illuminated is that for those drug treatment
court clients who make it past the three-month period, the retention rate rises
to 50 per cent. The court is attempting, through the data, to better understand
the characteristics of those clients who are deemed to be eligible but do not
make it, and who are expelled or withdraw in the first three months.
…The
evaluation has found that the comparison group is more likely than the
experimental group to be younger, unemployed, have an income source from
illegal activity, more criminal convictions, have been incarcerated more often
and been charged with a new offence since admission to the drug treatment
court. In many respects, the comparison group is at much higher risk than the
experimental group.
Lower
reoffending rates for those receiving the drug treatment court program and
related services may be related to their level of risk. We would like to
explore further whether it is participation in the program, or lower risk and
motivation to change one's life that is accounting for these differences.
The
evaluation data that we have to date has told us the following: The drug
treatment court in Toronto is able to engage and retain offenders. Those who
stay in the program tend to complete it and graduate, and the limited follow-up
data that has been collected so far would indicate that they do have lower
recidivism rates and reduced drug use.
There
is also a reduction in drug use and criminal activity while offenders are in
the program. There tend to be lower re-arrest rates for the experimental group
compared with the expelled or the comparison group. One of the evaluation
challenges over the next couple of years will be to try to identify a better matched
group of offenders in order to define the outcomes, impacts and effects of the
drug treatment court experience on some of the key outcome measures, which have
to do with drug use, criminal activity, re‑insertion in a pro-social way
into the community, family stability and things of that nature. [9]
We look forward to the results of
more comprehensive evaluations. Of note, the cost of incarceration in Ontario
is approximately $45,000 per year while treatment costs related to drug courts
are estimated at $4,500 per year. Clearly, increased use of DTCs could lead to
substantial savings to the criminal justice system while at the same time
showing promising results in reducing substance abuse problems.
