Academic journal article Dalhousie Law Journal

Criminal Law and the Counter-Hegemonic Potential of Harm Reduction

Academic journal article Dalhousie Law Journal

Criminal Law and the Counter-Hegemonic Potential of Harm Reduction

Article excerpt

I. Origins and definition of harm reduction

1. Public health

2. Community activism

3. Common key fea tures

IL Legal engagement with harm reduction

III. Identity and harm reduction s key features in context

1. From grassroots movement to public health institution

2. Identity construction and harm reduction in law Conclusion


Canada's increasingly punitive criminal justice policy has attracted criticism for ils human, costs in terns of health and well-being, for acting as a politically marginalizing force, and for its ineffectiveness at reducing crime.1 It has also met with judicial resistance.2 In the area of drug use, both in. Canada and internationally, harm reduction has emerged as the main alternative to the prevailing approaches of criminal law enforcement and abstinence-oriented medical treatment.3 This paper considers whether recent judicial engagement with the concepts of harm reduction might offer a. partial response to the marginalizing consequences of expansive criminal justice in Canada.

Although the definition of the term "harm reduction" is contested,4 it is generally used to refer to policies, programs, interventions or practices designed to minimize negative health and social consequences associated with drug use without requiring the cessation of drug use itself.5 Needle exchange, safe injection sites, and prescription of opiates to addicts are among the best-known examples.6 As a response to the use of illicit drugs, harm reduction has been lauded for saving lives,7 for its cost-effectiveness,8 for elevating pragmatism over prohibitionist ideology, for its flexibility in fitting the response to the problem,9 and also, particularly in contrast with traditional criminal law approaches, for its counter "hegemonic potential to empower people who use drugs.10

Although it has at times formed an important part of federal and provincial criminal and health policy in Canada,11 the law's relationship with harm reduction has been ambivalent While harm reduction increasingly finds support in international human, rights laws12 domestic criminal law enforcement has tended to interfere with harm reduction efforts.13 Domestic courts, for their part, have engaged with barm reduction relatively little«14

Recently, however, judges, policymakers, and scholars have begun to explicitly and implicitly reflect and support aspects of harm reduction in legal, approaches to socially contested or contestable behaviours, both within and beyond the drug use context In particular, some judicial decisions,15 legislative projects,16 and pieces of legal scholarship17 have approached issues such as sex work, illegal migration, and assisted death with a shift in focus away from moral judgment and a rejection of punitive approaches in favour of pragmatic, public health-oriented interventions geared toward mitigating measurable harms and empowering marginalized actors to attend to their own well-being.

This paper focuses on the growing emphasis in Canadian constitutional rights jurisprudence on evidence-based policy, on the health and wellbeing of the legal subject, and implicitly on the subject*s participation in shaping the norms that affect it. It argues that this emphasis is oriented toward harm reduction, and may hold promise as a bulwark against some of the marginalizing features of traditional criminal justice approaches that punish based on contestable majoritarian views at the expense of the health and well-being of marginalized groups. Lessons from critical public health literature on harm reduction, however, suggest a risk of inadvertent reinforcement of the dominant discourse of criminalization and stigmatization, as harm reduction's features are embodied within state institutional frameworks. For example, the commitment to nonjudgmentalism and to value neutrality vis-à-vis drag use itself, which has been a key feature of harm reduction, is compromised in various ways as it moves from grassroots movement to state-based public health intervention. …

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