3.19 Bail Conditions to Address Opioid Overdoses

Public Prosecution Service of Canada Deskbook

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

Updated March 3, 2020

Table of Contents

• 1. Introduction
• 2. Purpose

1. Introduction

The number of opioid overdoses and deaths continues to rise at the national level. There were 3,005 apparent opioid-related deaths in Canada in 2016, and 3,996 in 2017.^{Footnote 1} Between January and March 2018, there were at least 1,036 apparent opioid-related deaths, of which 94% were accidental.^{Footnote 2} Of those accidental opioid-related deaths, 73% involved fentanyl or fentanyl analogues.^{Footnote 3}

The number of opioid overdoses and deaths has caused a public health emergency. The severity of the public health emergency has not declined.

In the case of drug traffickers or other accused with a substance use disorder, certain bail order conditions may increase the likelihood of short durations of detention. These conditions include "not to be in possession of controlled substances", "not to be in possession of drug use paraphernalia" and broad area restrictions. The imprisonment of such individuals for minor breaches related to their substance use disorder may adversely affect their tolerance levels for opioid use, putting them at heightened risk of an overdose upon release from custody.^{Footnote 4}

2. Purpose

This Guideline addresses bail conditions for accused with substance abuse disorders while ensuring due regard for the protection of public safety. The Guideline seeks to avoid short durations of incarceration for violation of bail conditions by accused with a substance abuse disorder. This Guideline was created in order to address the epidemic of opioid overdoses through a targeted focus upon the risk of opioid-related overdoses by those with a substance use disorder.

Where applicable, prosecutors should consider whether referral of a case to drug treatment courts is appropriate.^{Footnote 5} Given the particular expertise of those courts and the purpose for which they may be imposed, the practises of those courts in relation to bail conditions would apply.

Public Prosecutions Service of Canada (PPSC) prosecutors are directed, unless required by the circumstances of the case to address public safety or as part of a drug treatment court initiative, to adopt the following practices:

1. Seek to minimize or eliminate the imposition of certain bail order conditions for individuals with a substance use disorder with the goal of minimizing short-term detentions for breaches of bail conditions. The determination of whether an individual has a substance use disorder should be based upon reliable information that may, for example, include representations provided to the Crown by the accused, defence counsel, caregivers, counsellors or the police.
2. The conditions that should generally not be imposed include:
   1. “not to be in possession of controlled substances”;
   2. “not to be in possession of drug use paraphernalia”; and
   3. broad area restrictions. Area restriction conditions, if imposed, must be carefully tailored to the specific offence and location.
3. Where, despite this, such conditions having been imposed, and breach charges or new simple possession charges are being proposed as a result of an arrest, federal prosecutors should take steps to have the new charges dealt with on an out-of-custody basis unless public safety concerns require them to be dealt with on an in custody basis.

PPSC Chief Federal Prosecutors (CFPs), Deputy Chief Federal Prosecutors (DCFPs) and General Counsel, Legal Operations (GCLOs) should undertake discussions with the police, provincial prosecution services and health care providers (as well as with the judiciary and defence counsel as determined to be appropriate) in order to assist with the establishment of the specific regional practices that will help to ensure that pre-trial custody not required to address public safety concerns are minimized and that conditions such as those noted above are avoided on police-release documents, if possible.

There will be some regional flexibility to reflect the different severities of the underlying situation being addressed, the state of the consultative process with partners and the operational pace that is feasible. Some regional offices, for example, will be in a position to begin implementation immediately as a result of the consultations already held in relation to these issues. CFPs should consult with Deputy Directors in respect of any flexibility required to implement this Guideline.