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Major Studies of Drugs and Drug Policy
Canadian Senate Special Committee on Illegal Drugs
Volume 2 - Policies and Practices In Canada

Chapter 15

The Criminal Justice System

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][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][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][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][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][5]  


Drug treatment courts

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][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][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][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][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.



[1][1] Report of the Auditor General of Canada to the House of Commons, 2001, Chapter 11, “Illicit Drugs: The Federal Government’s Role”, page 12.

[2][2] Croft Michaelson, Director and Senior General Counsel, Strategic Prosecution Policy Section, Department of Justice, Proceedings of the Special Committee on Illegal Drugs, Senate of Canada, First Session, Thirty-seventh Parliament, 2001-02, Issue no. 22, page 54.

[3][3] Single, E. et. al., (1996) op. cit.

[4][4] Report of the Auditor General of Canada to the House of Commons, 2001, Chapter 11, “Illicit Drugs: The Federal Government’s Role”, page 4.

[5][5] Statistics Canada, Canadian Centre for Justice Statistics, Juristat, Justice Spending in Canada, Catalogue no. 85-002-XIE Vol. 19, no. 12, pages 7-9.

[6][6]  See, inter alia, the document prepared by the Canadian Centre on Substance Abuse (2000) Drug treatment courts: Substance abuse intervention within the justice system.  Ottawa: author.

[7][7] Patricia Begin, Director, Research and Evaluation, National Crime Prevention Centre, Proceedings of the Special Committee on Illegal Drugs, Senate of Canada, First Session, Thirty-seventh Parliament, 2001-02, Issue no. 22, page 57.

[8][8] Ibid., page 8.

[9][9] Ibid., pages58-60.

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