LA CRISE DES SURDOSES D’OPIOÏDES AU CANADA

QUAND LA DÉCRIMINALISATION DES DROGUES DEVIENT UNE QUESTION DE DROIT À LA VIE

Abstract

This article addresses the constitutionality of the criminalization of the simple possession of drugs in Canada given the right to life, liberty and security guaranteed by section 7 of the Canadian Charter of Rights and Freedoms. The author considers a broad spectrum of scientific literature to identify how criminalization affects human behaviours in ways that sometimes infringe on fundamental rights. For example, criminalization leads to: hesitation to contact emergency services in the event of an overdose, hesitation to use sterile injection material, rapid injection by drug users in public places, an increase in blood borne diseases such as HIV and hepatitis C in prisons, an increased risk of overdose deaths in the days following the release of an incarcerated person with a substance use disorder, stigmatization that is likely to hinder awareness efforts and make drug users less likely to seek help, and more.

The second part looks at the potential justification of the infringements identified. The case law seems to suggest that infringements of the right to life, liberty and security that have been identified are necessarily disproportionate to the legislative objective, such that criminalization violates the principles of fundamental justice. Lastly, although the legislative objective is real and urgent, and criminalization is a rational means of achieving it, the infringements do not appear minimal and the adverse effects seem to outweigh the benefits of limiting fundamental rights, such that it could be argued that the criminalization of the simple possession of drugs is unconstitutional.