6.1 Drug Treatment Courts

Public Prosecution Service of Canada Deskbook

Guideline of the Director Issued under Section 3(3)(c) of the Director of Public Prosecutions Act

Revised January 2, 2024

Table of Contents

• 1. Overview
• 2. Drug Treatment Court (DTC) Programs
  • 2.1 Nature of DTC Programs
  • 2.2 Approaches to Treatment
  • 2.3 Core Principles
  • 2.4 Approval of a DTC program
• 3. Eligibility criteria for DTC programs
  • 3.1 General Principles
  • 3.2 Specific Considerations
  • 3.3 CDSA Offences
  • 3.4 Readmission to a DTC Program
• 4. Available Dispositions
  • 4.1 Guilty Plea
  • 4.2 Alternative Measures
  • 4.3 Post-Trial Dispositions
• 5. Successful Completion of a DTC program
• Appendix A - Attorney General's Approval

1. Overview

Drug Treatment Court (DTC) is a judicially supervised treatment program that enables persons suffering from a substance use disorder to meaningfully address their substance use. The treatment program is a non-adversarial environment supported by a multidisciplinary team that includes judges, prosecutors, defence counsel, law enforcement, social service agencies, and health service professionals.

The objective of a DTC program is to reduce the likelihood that its participants will commit a criminal offence that is related to their substance use disorders, thereby breaking the cycle of recidivism.

Crown counsel exercise an important gatekeeping role when determining if an individual is eligible to participate in a DTC program. In addition to eligibility, Crown counsel make recommendations on the approach to adopt with each participant, depending on what stage of the proceedings the participant engages in DTC. A person can apply to DTC at any point in their criminal proceedings.

2. Drug Treatment Court (DTC) Programs

2.1 Nature of DTC Programs

DTC programs across the country vary in structure and design in accordance with the needs of the communities they serve and available resources. The components of individual DTC programs may be different from one jurisdiction to another. There is no program that will fit in all instances. Each region, in collaboration with all DTC partners, will determine the ultimate design of their respective DTC programs.

Despite these variations, DTC programs generally share the following characteristics:

• Considered and individualized screening for eligibility based on an assessment of the relationship between the participant's criminal conduct and the substance use disorder. The screening also takes other factors into account. This includes the participant's willingness and ability to undertake activities to address their substance use disorder and reduce recidivism.
• Courts remaining seized of the participant's criminal charges for a period of time sufficient for the provision of treatment.
• Multidisciplinary community assistance with the provision of health treatment and social services.
• Appropriate response measures that are individualized to each participant. These response measures encourage progress and respond to setbacks. Intentional breaches may result in a removal from the DTC program.

2.2 Approaches to Treatment

The PPSC supports an approach to DTC programs that recognizes abstinence from consumption of drugs as the optimal goal. However, abstinence is not always a realistic goal for some participants and may not be achievable by an individual participant within the cycle of a prosecution. The key measure is an individual participant's ability to address the factors underlying their substance use to break the cycle of criminality and to develop positive behaviours towards themselves and other members of the community.

2.3 Core Principles

Before a person charged with a criminal offence is considered for a DTC program, Crown counsel must ensure that:

• The decision to prosecute test is met;^{Footnote 1}
• The accused has received sufficient disclosure unless there is a clear and informed waiver;
• The charges are within the jurisdiction of the Attorney General of Canada.

The Canadian Association of Drug Treatment Court Professionals has adopted a list of guiding principles that are nationally recognized. They include:

1. Drug Treatment Courts integrate addiction treatment services with justice system case processing.
2. Using a non-adversarial approach, prosecution and defence counsel promote public safety while protecting participants' Charter rights.
3. Eligible participants are identified early and placed in the Drug Treatment Court program as promptly as possible.
4. Drug Treatment Courts provide access to a continuum of drug, alcohol and other related treatments and rehabilitative services.
5. Compliance is objectively monitored by frequent substance testing.
6. A coordinated strategy governs Drug Treatment Court response to participants' compliance and non-compliance.
7. Swift, certain, and consistent sanctions or rewards for non-compliance or compliance.
8. Ongoing judicial interaction with each Drug Treatment Court participant is essential.
9. Monitoring and evaluation processes measure the achievement of program goals and gauge effectiveness.
10. Continuing interdisciplinary education promotes effective Drug Treatment Court planning, implementation, and operations.
11. Forging partnerships among courts, treatment and rehabilitation programs, public agencies and community-based organizations generates local support and enhances program effectiveness.
12. Ongoing case management providing the social support necessary to achieve social reintegration.
13. Appropriate flexibility in adjusting program content, including incentives and sanctions, to better achieve program results with particular groups such as women, Indigenous people and minority ethnic groups.^{Footnote 2}

These principles highlight the different roles that Crown counsel may play when involved in a file that is admitted to a DTC program.

2.4 Approval of a DTC program

DTCs do not require a formal designation to operate as a DTC. Pursuant to s. 10(4)(a) of the Controlled Drugs and Substances Act (CDSA), a DTC program must be approved by the Attorney General of Canada. Approval requires compliance with the principles mentioned below. This approval can be provided by the Chief Federal Prosecutor (CFP) in the appropriate province, territory or region when the CFP is satisfied that the DTC program complies with the relevant principles and signs the form at Annex A.

3. Eligibility criteria for DTC programs

3.1 General Principles

An application to a DTC program should only be considered in light of convincing evidence of the applicant's willingness and ability to commit to treatment. The treatment must be tailored to the individual participant, their criminal conduct, and the potential to reduce the risk of recidivism.

3.2 Specific Considerations

The interdisciplinary teams within a DTC program include PPSC prosecutors. PPSC prosecutors play an important role in recommending admission to a DTC program in a team environment. The factors that Crown counsel must consider in determining eligibility include, but are not limited to, the following:

• Whether the offence involves violence or raises issues of public safety;^{Footnote 3}
• Whether the offence involves drug-impaired driving;
• The participant's criminal record, including whether there is a recent or significant history of violence. If the participant used, or threatened to use, a weapon during the commission of an offence, this would be considered a crime involving violence;
• The offence involves conduct that poses a heightened risk to a community's efforts to address substance use disorders. This concern is often present in relation to smaller, isolated or remote localities and First Nations, Métis and Inuit communities.

These factors, which are meant to protect against risks to public safety, must not be used as barriers to limit the participation in a DTC program by Indigenous persons or members of racialized or marginalized groups who are overrepresented in the criminal justice system. Consideration must also be given to background and systemic factors,^{Footnote 4} and the personal circumstances of an applicant to determine if public safety risks can be mitigated to ensure fair and equal accessibility for all to DTC.

Crown counsel must also consider the region in which the DTC program operates. For example, a metropolitan setting may have medical and social services that are more elaborate and standardized versus those in a smaller population centre.

PPSC prosecutors must seek the approval of their Chief Federal Prosecutor or Deputy Chief Federal Prosecutor to admit an accused into a DTC program where the alleged offence involves serious acts of violence. This includes offences where it is alleged that a weapon was used or intimate partner violence occurred. Prior consultation must also occur with the DTC program team members and the relevant law enforcement agencies.

3.3 CDSA Offences

For CDSA offences, an applicant will generally be ineligible for admission into DTC if:

• there is no evidence that the applicant suffers from a substance use disorder;
• the person has been charged with having a significant role in organized trafficking for commercial gain;
• the drug offence involved risk to a young person;
• the offence involves conduct in breach of the rules of a regulated setting such as a custodial facility, jail or penitentiary;
• the offence involves criminal conduct by peace officers or public officers related to the discharge of their duties, such as corruption or breach of trust; or
• the person is an associate or member of a criminal organization.

3.4 Readmission to a DTC Program

Readmission into a DTC program will generally be encouraged for any applicant who has previously graduated from a DTC program and suffered a relapse that resulted in new charges. Readmission will be encouraged if the eligibility criteria are met and there are no concerns about public safety. Persons who have previously participated in a DTC program and were expelled within the previous year are generally eligible for readmission upon demonstrating to the satisfaction of the DTC program team that they should be given another opportunity.

4. Available Dispositions

4.1 Guilty Plea

An expression of responsibility, such as the willingness to plead guilty to one or more outstanding charges, will be an important element of the assessment of whether an accused should be admitted in a DTC program. Sections 10(4) and 10(5) of the CDSA allow a court to delay sentencing if an offender is participating in a DTC program approved by the Attorney General or attends a treatment program approved by the province.^{Footnote 5}

4.2 Alternative Measures

In some cases, an accused may be eligible to participate in a DTC program without the requirement of a guilty plea to one or multiple charges. As provided by s. 717(1)(e) of the Criminal Code, a candidate seeking to participate in a DTC program as an alternative measure must accept responsibility for the commission of the actions that form the basis for the offence(s).

A candidate will be ineligible if they deny participation or involvement in the commission of the outstanding offence(s) or express a desire to have the charge(s) dealt with by the court in the traditional sense.^{Footnote 6}

The general principles and criteria outlined in AG Directive 3.8 "Alternative Measures" of the PPSC Deskbook apply where a DTC program operates as an alternative measure to prosecution. Instead of a conviction, graduates of a DTC program will have outstanding charges withdrawn or stayed.

All participants in a DTC program who do not plead guilty to outstanding charges will be required to waive any period of delay arising from their participation in it. Failure to complete the DTC program should result in the continued prosecution of charges.^{Footnote 7} If a participant in a DTC program is charged with a new offence, PPSC prosecutors may consider measures such as reinstituting the original charges, removal from DTC, or having the participant continue in DTC if the new charges also relate to a substance use disorder. In the latter case, the circumstances of the new charge(s) must satisfy all preconditions for continued participation in DTC.

4.3 Post-Trial Dispositions

An individual suffering from a substance use disorder found guilty after trial may still be considered for entry into a DTC program provided that they meet all eligibility criteria and are prepared to waive all delay incurred from their participation in a DTC program.

5. Successful Completion of a DTC program

The standard for the successful completion of a DTC program is to be determined by the DTC team. This standard must be individualized to the individual participant and be consistent with the requirements and objectives of the program.

Some suggested criteria include:

• A realization of positive outcomes including management of, and insight into, an individual's substance use disorder.
• A substantial period of time having passed without further criminal convictions.
• Social stability indicators such as having obtained stable housing, ongoing attendance at community support programs, being employed, attending school, or participating in significant volunteer work.

Persons who satisfy a DTC program's successful completion criteria will graduate from the program and be eligible for special considerations regarding the outcome of their charges. This may include withdrawing or staying charges for persons who have not yet entered a plea, or to a reduced sentence for persons who have entered a plea. The range of sentences for the most serious offenders in a DTC program may include a suspended sentence along with a period of probation.

In any case, the DTC is not required to impose the mandatory minimum penalty (MMP) for the offence. In some situations, it may even be appropriate to allow a participant to strike their guilty plea and for PPSC prosecutors to seek a stay of proceedings or withdraw charges. This should only happen where a participant has gone above and beyond the satisfaction of all program requirements.

PPSC prosecutors may, where appropriate, consult with the DTC program team as part of the Crown's determination of its position on the sentence upon graduation.

Appendix A - Attorney General's Approval

Section 10 of the Controlled Drugs and Substances Act provides, in part, as follows:

I hereby approve the (name of program) as a drug treatment court program approved by the Attorney General of Canada pursuant to paragraph 10(4)(a) of the Controlled Drugs and Substances Act. This approval is provided further to powers, duties, and functions the Attorney General of Canada assigned to the Director of Public Prosecutions on February 18, 2019 (Assignment 5) and that the Director delegated to Chief Federal Prosecutors in the Guideline "Drug Treatment Courts", which was issued by the Director of Public Prosecutions pursuant to paragraph 3(3)(c) of the Director of Public Prosecutions Act, SC 2006, c 9, s 121.

Dated at the City of _______________, ______________, this ____ day of ________________, 20____.

________________________________________________
Chief Federal Prosecutor for the Region of _____________

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Date modified:

2024-01-02