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Why we need Drug Treatment Courts | Lorne Sabsay

This article originally appeared on The Lawyer's Daily website published by LexisNexis Canada Inc.

The Canadian Association of Drug Treatment Court Professionals (CADTCP) is comprised of judges, lawyers and treatment providers who either work in Canadian Drug Treatment Courts (DTCs) or advocate for them.

We share common ground with professors Anthony Doob and Rosemary Gartner ('Taking a hard look at drug courts', The Lawyer's Daily, Jan. 18, 2018) inasmuch as they advocate for more studies to evaluate the efficacy of DTCs. We do need more studies, particularly in Canada. However, our experience demonstrates the undoubted value of DTCs as an alternative to traditional criminal prosecution in appropriate cases.

The studies referred to in the professors' article would appear to have all come from the United States. It should be remembered that Canadian "drug treatment courts" are not necessarily the same as similar entities which are known as "drug courts" in the United States.

There are different considerations which apply in the United States. The courts are not the same. For example, the professors cite studies suggesting that drug court participants at low risk to reoffend may be made worse by intensive treatment. In Canadian DTCs those deemed to be at low risk to reoffend are not admitted to the program.

Additionally, American drug courts have many years' experience of significant funding for both their operation and evaluative studies. Many Canadian DTCs are not funded at all by government and many survive only through the dedicated work of professionals donating their time to this cause. The unfunded drug courts arose from the belief that this system of treating the problem of substance related criminal behaviour, with an interdisciplinary team approach, in a program that is much more responsive, could offer the best possible hope of the ultimate goal of reducing substance related crime and addiction.

There is no money at all for the kinds of studies which the professors say should take place. Funding for the operation of federally funded DTCs was significantly reduced several years ago.

In Canada the experience of DTCs is a veritable fight for survival. Under such conditions, the kinds of studies we agree are needed are presently a pipe dream. Rather than suggest that DTCs should be further starved of funds in order to operate, our view is that DTCs need more funds, not only to operate but to engage in the kinds of evaluative studies recommended by the professors.

For CADTCP, the efficacy of what we do is measured by a different question than the one posed by the professors. Perhaps for social scientists the important study really is how the treatment obtained in drug treatment courts compares to that of treatment obtained in other kinds of treatment facilities. But that's not a comparison the criminal justice system has the luxury of undertaking.

The question we have to ask is whether or not those standing before the criminal courts are better served by treating their addiction or by sending them to jail, where treatment is usually limited, if it exists at all. DTCs serve only those persons with addictions who have come into conflict with the criminal law, whereas hospitals and other treatment facilities deal with the entire spectrum of people suffering from addiction and mental health issues.

The relevant consideration is whether the stigma of criminal conviction, and the experience of jail, does anything worthwhile to control what is really a health problem. It is the reason why countries like Portugal have done away with using the criminal law as a means to combat social problems associated with problematic drug use. But unless or until that happens in Canada the efficacy of DTCs must be measured against the efficacy of jail, not other forms of treatment.

These are stark alternatives but they are the only ones we have.

While Canada has, indeed, lagged behind the U.S. in being able to fund evaluative studies of DTCs, we do have one major study that was undertaken in 2015 by the federal Department of Justice. That study undertook an analysis of the six DTCs that receive funding through the government's Drug Treatment Court Funding Program. The executive summary of that study includes the following:

"The relationship between illegal drug use and criminal behaviour is well established and represents a continuing and costly problem in Canada. Research has concluded that those with substance abuse issues are more likely to have committed crimes, and those who have had contact with the criminal justice system are more likely to have reported substance abuse issues. ... DTCs have challenging target populations that are drug addicted, generally at high risk of reoffending, have multiple other issues (e.g. poverty, mental illness, low education levels) and often few supports (e.g. lack of family connections, negative peer associations). The evaluation results indicate that, even with these challenges, the DTCs show promising results in several areas. Reducing drug use ... use of community supports and social stability ... (and) reducing criminal involvement."

Lorne Sabsay is the national executive director of the Canadian Association of Drug Treatment Court Professionals and lawyer at Sabsay Lawyers in Toronto. He is certified by the Law Society of Ontario as a specialist in criminal law.

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