It was recently revealed that Quebec’s justice department issued a notice in 2023 regarding the diversion from criminal courts of simple drug possession in Quebec. This differs from the situation in British Columbia, where simple possession has already been decriminalized as part of a pilot project. This article looks at the differences between diversion, decriminalization, and legalization.
When a practice is legalized, such as the consumption of cannabis, it means the practice is no longer illegal and, generally, that a legal framework has been created to regulate it. This framework could include, for example, rules about a product’s sale, production, possession, and consumption. In the case of cannabis, legalization also involved setting a legal age for purchasing it, and a maximum quantity that can be grown at home. (Growing at home is prohibited in Quebec, while in Ontario, it is permitted to grow up to four cannabis plants per home.)
In other words, legalization ends the prohibition of a previously illegal activity and generally creates rules to regulate it.
Decriminalization does not go as far as legalization. For example, the decriminalization of simple possession of certain drugs (opioids, cocaine, methamphetamine, and ecstasy) in British Columbia does not mean that these drugs became legal. Their production, trafficking, and sale remain prohibited.
Decriminalization aims to avoid the application of certain criminal sanctions to a practice (such as simple possession of a drug). The authorities may employ other approaches, however, such as referring a person using drugs to health care and social services.
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Did you know? Simple possession is the possession of a small quantity of an illegal drug for personal use, not for sale. |
Finally, diversion takes place within the current context of prohibition. Thus, the law is not amended or repealed, but directives limit its application or at least specify when and how it should be applied.
To clarify things, here are a few examples of diversion and decriminalization that are unrelated to drug use.
Diversion for non-disclosure of HIV status
In Canada, HIV-positive people can be criminally prosecuted if they fail to inform their partner(s) of their health status. A non-disclosure nullifies the partner(s) consent to sexual activity, as it can endanger a partner’s health. This lack of transparency can lead to a criminal charge of assault or aggravated sexual assault.
However, in March 2019, Quebec’s Director of Criminal and Penal Prosecutions (DPCP) issued a press release stating that prosecutions should only be brought if there is a “realistic possibility of transmission”.
To determine whether this realistic possibility exists, the DPCP relies on a position taken by the Ministère de la Santé et des Services sociaux (department of health and social services). This position states that the risk of HIV transmission during unprotected sex is “negligible” when the HIV-positive person is on antiretroviral treatment and has a low or “suppressed” viral load.
In this situation, prosecution would not be justified, according to the DPCP.
Although the expression is not used in the DPCP press release, this guideline, like that for simple possession of drugs, can be seen as a diversion of the non-disclosure of HIV status, although only in very specific cases.
Gradual decriminalization of anal sex
Different forms of sexual intercourse have not always been treated equally in Canada. In the first Canadian Criminal Code, adopted in 1892, anal sex was described as “sodomy” and was prohibited. It was only in 1969 that consensual anal sex between spouses and between persons 21 years of age and older was decriminalized.
The age of consent was lowered to 18 in 1988, and it took almost another 30 years before anal sex was permitted for people aged 16 and over, as it is for other types of sexual activity.
However, the age of consent is 18 in certain circumstances. This is the case when there is a relationship of trust, dependency, or authority between the sexual partners, as in the case of a teacher having an intimate relationship with a student. This applies to any type of sexual activity.
Decriminalization of abortion
Like anal intercourse, abortion was prohibited at one time. However, starting in 1969, doctors were allowed to perform abortions in hospital if the pregnancy threatened a woman’s health or life. It was only in 1988 that abortion was essentially decriminalized.
Thus, the right to have an abortion is not guaranteed by any law in Canada, but rather by a decision of our Supreme Court. This absence of any law regulating abortion also explains why there is no legal limit as to when, in a pregnancy, an abortion can be performed.
This lack of legislation also explains why access to abortion remains difficult in some provinces. And while it is legal to have an abortion at any stage of pregnancy, some facilities or doctors may refuse to perform an abortion after the first trimester.
In sum, abortion is considered legal in Canada. However, it has not been “legalized” in the sense of having a legal framework to regulate the practice.
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Summary Legalization means the practice is no longer illegal and, generally, that a legal framework has been created to regulate it. Decriminalization involves avoiding the application of certain criminal sanctions to a practice without making it legal. With diversion, the law is not amended or repealed, but directives limit its application or at least specify when and how it should be applied |