Over the years, Canada’s drug policy has shifted somewhat to recognize that those who commit drug offences are often suffering from addiction. While offences under the Controlled Drugs and Substances Act (CDSA), all carry potential for jail time, the criminal justice system does have alternatives such as diversion that are aimed at helping people overcome their addictions, rather than merely punishing them.
The following are two alternatives that exist for people charged with drug offences:
SURCH stands for Substance Use Related Crime in Hamilton. As the name implies, this program is available to those charged with drug offences in Hamilton. The program started in 2008 and is a collaboration between the Hamilton Criminal Lawyers’ Association, federal and provincial prosecutors, addiction specialists, and the Hamilton Police Service. The aim of SURCH is to reduce drug-related crime in Hamilton and it has been shown to be successful. Graduates of SURCH are less likely to have interactions with police in the future.
Why would I want to do SURCH?
SURCH is intended to help people change their behaviour when it comes to substance abuse. If you have been charged with an offence that stems from addiction and want to make a change, it can help you along the way.
Completing, or “graduating”, from SURCH is taken into consideration during sentencing and is looked on favourably by the court.
Who is eligible for SURCH?
In order to be eligible for SURCH, an accused must:
- be 18 or older
- have an addiction to opiates or methamphetamine
- be facing charges that stem from their addiction
- be motivated to get better and change their behaviour
You are not eligible for SURCH if you:
- are charged with a violent offence, or have a history of violent offences
- are charged with impaired driving, sex offences, crimes involving children, trafficking, or residential break-ins
- have untreated mental health issues
- are currently serving a sentence
- previously completed SURCH
How does SURCH work?
If you are interested in SURCH, the first step is for you to retain a lawyer, either privately or through a Legal Aid Certificate, who can advocate on your behalf. They will discuss your enrolment in SURCH with the Federal Prosecutor assigned to your case. If the Federal Prosecutor agrees to your participation in SURCH, you will attend your court date and meet with a representative from Mission Services, the organization that runs the SURCH program. The representative will do intake with you. They will determine whether or not you are eligible for the program. Even if the Federal Prosecutor agrees to SURCH, the representative from the program ultimately decides whether or not you can enrol.
There are three streams for SURCH, that vary in length and intensity. The representative from the program will determine which is the appropriate stream.
Some SURCH statistics:
•102 referrals in its first year, 89 actual participants
•38% are addicted to cocaine
•SURCH grads are 21 per cent less likely to have contact with police than those who don’t graduate
•$6,307 to put one graduate through SURCH and process their court case
•$100,530 to prosecute and incarcerate one person who does not enter SURCH
Diversion is a process in which an accused person accepts responsibility for their actions and completes community service, a charitable donation, counselling etc. As a result, the charges against them are withdrawn. Diversion exists for provincial and federal charges.
As with SURCH, an accused should contact a lawyer to advocate on their behalf. The lawyer will go over all the options for you. While diversion is a desirable option, it will not be possible in every set of circumstances. Your lawyer will be candid with you about whether or not it is likely.
Your lawyer will then contact the Crown or the agent for the Public Prosecution Service of Canada. This will depend on what charges you are facing. If you are charged with a drug offence under the Controlled Drug and Substances Act, it will be an agent for the Public Prosecution Service of Canada. If you are charged with an offence under the criminal code that stems from your addiction, it will be a Crown Attorney.
If it is appropriate given the charges, your lawyer will discuss diversion with the prosecutor. The prosecutor will usually consider many factors in deciding whether to agree to diversion. They will likely consider your criminal record, your age, your background, mental health issues, the seriousness of the charges, any steps you’ve taken to improve yourself/make better choices, and input from the complainant.
If you are approved for diversion, your lawyer will let you know and you will attend court and speak to the appropriate agency that coordinates diversion.
There are different types of diversion, based on your charges.
If you have been charged with a drug offence, it may be possible for you to enter into federal diversion.
The Federal Diversion program offers alternatives to the formal court process by providing community based sanctions when a person is alleged to have committed an offence.
The goal of the Federal Diversion program is to provide supportive interventions and programming to assist adults in accepting responsibility for their offence and addressing the impact of the alleged offence.
Federal Diversion Programs are run by different agencies in different cities. The John Howard Society assists with the Federal Adult Diversion Program in Hamilton and St. Catharines. In Brantford, it is run by St. Leonards.
Mental Health Diversion
It is possible to do Mental Health Diversion with federal charges. It is appropriate for people who have an identified mental health issue and when this issue has contributed to them committing the offence. It allows them to access mental health and other community support.
This program is run by the Canadian Mental Health Association (CMHA). If the file has been screened by the prosecutor for mental health diversion, you will meet with a Mental Health Court Worker and they will do intake and assessment. They will then make their recommendation to the prosecutor who has to approve the plan. A diversion plan could include psychiatric assessment and treatment, short and long-term community supports and resources to meet basic needs (shelter, food, clothing, and financial entitlements).
If you have been charged with a drug offence or an offence that stems from your addiction, it is important that you get help from experienced counsel. At Smordin Law, the lawyers will take the time to explain all of the options and will be candid and realistic about the options for you.