Abstract

Defence lawyers working in lower criminal courts are increasingly invited to consider a variety of holistic or alternative strategies like drug treatment courts (DTC). This raises new ethical and practical questions. Scholars have been critical, showing how specialized courts circumvent the principle of presumption of innocence, impose onerous conditions and surveillance, and lack the resources required to support participants’ long term. What is not known, however, is how defence lawyers representing marginalized clients talk about and engage with DTC programs. Our paper examines this, drawing from interviews with defence working in Toronto and Montreal (n=98). We describe and discuss when and why participants report being more supportive or critical of drug treatment courts, and how they borrow from therapeutic justice in their ‘regular’ practice. Our discussion engages with questions about access to health and social support resources, about interdisciplinary interventions and the ways in which people are criminalized rather than helped.

Specialized courts aim to tackle recidivism and prison overcrowding by addressing some of the underlying causes of offending, such as addiction, mental health, and homelessness, providing targeted interventions (e.g., rehabilitation supports, housing), and facilitating collaboration between legal and health or social service professionals (Casey and Rottman 2000; Berman 2004; Birgden 2004; Wolff, 2006). Over the past few decades, these specialized courts have expanded both in Canada and internationally (Government of Canada 2021). Some scholars view this as a good alternative measure, citing specialized courts’ focus on treatment and therapeutic interventions and the less adversarial court culture (Bentley 2000; Nolan 2001, Fischer and Geiger 2011, Gottfredson et al. 2007). But this continued expansion is also somewhat curious, given well-documented concerns about drawbacks and limits of this model for participants and for professionals involved. Drug Treatment Courts (DTCs) in particular have been criticized for their strict program expectations and supervision conditions, which trigger frequent breaches and high failure rates[1]. Scholars have also critiqued that participants in DTCs (and most other types of specialized courts) must plead guilty in order to be admitted to the program and access supports (Buckley and Bigelow 1992; Moore 2007; Hannah-Moffat and Maurutto 2012). Despite these critiques, many support the DTC model, because evidence also shows people who do complete the program have lower recidivism rates and better treatment outcomes (Government of Canada 2021).

Some research has focused on how People Who Use Drugs (PWUD) experience and perceive the DTC process. For instance, Moore and Hirai (2014) showed how DTC participants are expected to perform according to normative correctional scripts, which can become difficult or impossible for some. Other studies have explored how professionals involved in DTC come to characterize their experiences as challenging the boundaries of their field of practice (Moore 2007; Quirouette et al 2016). More technical program evaluations have also described what participants and staff report about their experience (see Government of Canada 2021). Less is known about the perspectives and practices of legal professionals whose work means they engage with DTCs without being part of the dedicated team. In particular, little attention has been given to how criminal defence lawyers who represent clients who might be considering, eligible for, and/or involved in DTCs perceive its value. In fact, a recent report indicates “lack of broad-based awareness of [DTC] programs on the part of defence counsel” as a barrier to program success (Government of Canada 2021: 16). The perspectives of defence counsel matter, shaping how they advise clients and manage access to justice issues.

In this paper, we focus on how defence lawyers representing marginalized clients talk about and engage with DTC programs. In doing so we shed light on what defence lawyers appreciate about DTCs, what aspects they find problematic, and challenges their clients encounter within these court systems. Further, we describe how defence lawyers borrow techniques from DTCs to shape their own therapeutic practices and negotiate better outcomes for their clients. The analysis in this paper stems from a larger qualitative study about the legal representation of marginalized clients[2]. We draw upon semi-structured interviews with criminal defence lawyers (n=98[3]) working in the greater Toronto and Montreal regions who represent individuals facing various disadvantages including, but not limited to, PWUD. We describe and analyse the perspectives and strategies of legal actors who represent disadvantaged accused in criminal courts: duty counsel and private practice lawyers who take on legal aid work, as well as private counsel doing pro bono work.  

As we detail with our findings, criminal defence lawyers can be both critical and appreciative of DTC’s. Part 1 focuses on participants reporting favorable experiences and express belief in the merits of DTC’s or therapeutic justice. Part 2 documents criticisms and concerns about exclusions or the punitive and onerous nature of DTC’s, including the pressure to plead guilty. In part 3 we illustrate how defence lawyers borrow elements from therapeutic justice to develop their personalized strategies when advising clients, while avoiding aspects of DTCs they disapprove of. Overall, our work engages with questions surrounding therapeutic justice, the presumption of innocence, the current realities of the drug toxicity crisis and recent calls for the decriminalization of drug possession in Canada.

LITERATURE REVIEW

Control and Criminalization of Marginalized PWUD

The overcriminalization of PWUD has been extensively documented, particularly since the 1970s’ War on Drugs in the United States and Canada. Repressive policies disproportionately affect racialized and disadvantaged communities, including Black and Indigenous populations, people experiencing homelessness, and those with mental health issues (Bellot et al., 2021; Earp, Lewis, and Hart, 2021; Grecco & Chambers, 2019; Lavalley & al., 2018). Research has demonstrated how marginalized people are controlled even when they receive care (Soss, Fording and Schram, 2011; Goddard and Myers, 2017). For example, Halushka (2020) showed the burdensome ‘runaround’ that is part of the re-entry process, where both criminal justice and welfare overlap. Theorizing such dynamics, McNeill (2019) suggests this type of ‘conditionality’ of support can be characterized as degradation. According to the author, conditionality allows the penal state to create and magnify vulnerabilities which further exacerbate structural inequalities. They disqualify poor and disadvantaged people from the entitlements of ordinary citizenship through this ‘dispersal of degradation’.

Research shows criminal courts play a central role in perpetuating racial and socioeconomic inequalities, with several studies highlighting challenges and differential treatment at all stages of the criminal process. Research also shows how challenging it is for low-income defendants to access –and trust– legal representation due to exorbitant lawyer fees and inadequate legal aid funding (Clair 2020; Bernheim et al., 2021). Indeed, low-income defendants are constricted in their choice of legal representation, having to rely on an inadequate legal aid system, community organizations or pro-bono lawyers, or self-representation (Ibid, 2021). Disadvantaged groups, including PWUD, are also subject to disparities in sentencing (Omori & Petersen, 2020).  As Clair and Woog (2022) put it, courts function as an unjust institution, contributing "to unique forms of state violence, social control, and exploitation all their own, revealing the machinations of mass criminalization and injustice that operate between the police encounter and the prison cell" (3).

While court officials should consider social marginality factors including addiction, poverty, racism, and/or untreated mental illness in drafting and justifying conditions for bail release (Winter and Clair 2023), in practice, bail conditions have been shown to disadvantage these accused, 'setting them up to fail' (CCLA, 2014; Myers 2021). In particular, spatial restrictions[4] have been shown to limit people’s access to critical community, housing and treatment supports. For PWUD who rely on such supports for their wellbeing and survival, bail conditions have been shown to produce particularly harmful and marginalizing effects (Sylvestre et al. 2019). Many have criticized how people experience frequent re-incarceration or are ‘tossed around’ the institutional revolving door as a result of overly restrictive bail and other penal conditions that fail to recognize their lived realities (Harrison, 2001; Warner & Kramer, 2009).

Drug Treatment Courts, Therapeutic Justice, and Control

DTCs, like other specialized courts, offer participants the opportunity to avoid a prison sentence by agreeing to plead guilty to the offence, follow bail conditions, and participate in therapy and other programming (Bentley 2000; Nolan 2001; Fischer 2003; Gottfredson et al. 2007). DTC programs in Canada focus on people charged with an offence “where a substance use disorder has contributed to the commission of that offence” (Public Prosecution Service of Canada 2022). Specifically, focusing on people who use of cocaine, crack, methamphetamines, and opiates.

Canada’s first DTC program was launched in Toronto in 1998, and the second in Vancouver in 2001. The Department of Justice Canada now funding agreements with 10 provinces/territories to fund 13 DTCs nationwide (Government of Canada 2021). These DTC programs are in cities including, but not limited to Toronto, Vancouver, Edmonton, Winnipeg, Calgary and Montreal (Bernier, 2017; Weinrath et al. 2018; 2019)[5]. An undetermined number of DTC’s operate without this federal funding (Steering Committee on Justice Efficiencies and Access to the Criminal Justice System 2021). For instance, in Ontario, we were told only two of the ten DTC’s operating receive federal funding.

Driven by therapeutic logics (Wexler and Winnick, 1996), specialized courts like DTC’s draw set aside traditionally adversarial court dynamics focused on case adjudication to promote holistic, interdisciplinary and collaborative problem solving focused on rehabilitation. These courts aim to address clients’ substance use via access to treatment and supports, reduce recidivism, and overcome the limitations of the traditional justice system, which often fails to meet the needs of marginalized PWUD, many of whom also experience homelessness or housing precarity (Casey and Rottman 2000; Berman 2004; Birgden 2004; Wolff, 2006). DTC programs typically operate with a dedicated court team[6] (judge, Crown, defence, police, probation and community liaison), treatment team (case workers, nurses, peer leaders) and community support partners (housing workers, detox, rehab, group support). Pre-court case management meetings are essential to the DTC model, supporting the monitoring and supervision of its clients, including reviewing drug testing results and deciding about interventions (rewards or punishments), in partnership with both criminal justice and health care systems (La Prairie, C., et al. 2002). In general, clients are expected to attend court regularly and also attend daily or weekly treatment programs focused on coping skills, high risk identification skills, goal setting, stress management, or employment skills (CCSA 2007; Government of Canada 2021). In most DTCs, participants must report to their probation officer or case manager on a regular basis throughout the duration of the program, which generally last between 12 and 24 months[7]. There are core characteristics; however, operational structures, policies and practices vary significantly from one program to another.

DTC participants are expected to play a proactive and productive role in shaping their own rehabilitation process away from drug use and offending (Bernier, 2017; Vrancken and Macquet, 2006). People charged with violent offences and with using a weapon, along with those who have a history of violence, are typically excluded, as are those charged with trafficking, putting a young person at risk, or being part of a gang. The policy is to restrict admission to the DTC program if there is an indication that “the DTC program is being used solely to avoid punishment, rather than to seek treatment for a substance use disorder that contributed to the criminality in question (Public Prosecution Service of Canada 2022; section 2.3).

Specialized courts adapt well-established legal practices such as diversion, bail procedures, risk/needs assessment, and sentencing, while redefining the role of community social welfare and health practitioners (Hannah-Moffat and Maurutto, 2012; Moore 2007). As several scholars have pointed out, DTCs involve elements of therapy, but also of control, surveillance, and punishment, raising new challenges for legal actors and other professionals who engage with them (Moore, 2007; Moore & Hirai, 2012). In addition to imposing numerous bail conditions, which risk breaches[8] and raise questions about respect for the principle of the presumption of innocence (Turnbull and Hannah-Moffat 2009; Hannah-Moffat and Maurutto 2012), these courts blur the line between care and control, pushing legal actors to use psycho-social knowledge, and psycho-social actors to use legal knowledge (Fortin et Raffestin, 2017; Hannah-Moffat et Maurutto, 2012; Moore, 2007). DTCs aim to facilitate access to comprehensive supports, but structural constraints like long wait times for affordable and /or supportive housing make it difficult for clients to find stability or meet their basic needs. The criticisms of DTCs echo concerns about other ‘benevolent’ non-custodial justice practices that have been shown to contribute to net-widening by dragging in individuals who would have otherwise escaped criminalization or benefited from less onerous diversion programs (Kohler-Hausman 2018; Scott-Hayward, 2017; see also Cohen 1985; Foucault 1976).

These debates raise questions about the relative value and impact of DTCs and are particularly relevant in light of the current drug toxicity crises in Canada and the U.S. (CCSUA n.d.; Hatt 2021). Many Canadian cities have struggled to address the increasing number of opioid overdoses and deaths, a situation that is compounded by marginalized PWUD’s lack of access to stable and safe housing, addiction programs, and community and government supports (Lappiere 2023). Amidst the current drug toxicity crisis, more stakeholders and researchers have advocated against the use of court and criminal justice measures to address addiction and criminality, calling instead for drug decriminalization (Jackman, 2021) and the development of safe supply options, comprehensive harm reduction and public health services in active collaboration with individuals with lived experiences (Sue & al., 2022). This context shapes defence lawyers’ perspectives on the value and nature of DTCs.

Holistic Lawyering, Zealous Rep, Ethical Dilemmas

Defence lawyers representing disadvantaged clients are pressured by managerial requirements focused on regulating people efficiently, rather than adjudicating cases (Kohler-Haussmann, 2018; 61 – see also Resnik 1982). Many lack the resources, time, and energy required to ensure a high level of involvement in each client’s case (Sabbeth, 2015). Defence counsel working with marginalized accused experience the chronic 'stress of injustice’, generated by the “the social and psychological demands of working in a punitive system with laws and practices that target and punish those who are the most disadvantaged” (Bacak, Ferguson and Powell 2024; 1). They are 'structural antagonists', described as “of the state” while working, “against the state” (Slee 2023; 1). Slee shows that despite their status and knowledge as court actors, public defenders lack power to do much about the injustice they see (ibid). They must be strategic in choosing when and how they advocate for their clients.

Navigating resource pressures, legal realities as well as clients’ wishes and therapeutic needs, defence lawyers adapt their zealous advocacy, employing whatever methods are available to respond to what they perceive as the best interests of their client (Van Cleve, 2012; Sabbeth, 2015). Following clients’ instructions, they are often pushed into accepting various forms of injustice, as is the case with ‘false’ guilty pleas (Van Cleve, 2012). Navigating this tension is often the source of ethical dilemmas for lawyers, who contend with slippery notions of best interests and client preferences (Ibid). Woolley’s (2016) work suggests this is also an issue for Canadian defence counsel navigating ethical questions related to plea bargaining. Borrowing from Freedman (1967), she explains how they face hard questions where “the normative values of the legal system and of ordinary morality are in irreducible conflict” (Woolley 2016: 1180). This means defence counsel “have to choose between, on the one hand, acting in their clients' best interests and, on the other hand, refusing to participate in an injustice and [or] misrepresentation to the court (ibid).” This is relevant to DTC practices because participation requires a guilty plea in exchange for treatment and a lighter noncustodial sentence.

DTCs (re-)shape defence work with PWUD, creating new considerations and challenges. In DTCs and other specialized courts, defence lawyers collaborate with various social service actors, including those involved in detox, addiction treatment, and housing supports. These collaborations raise new issues for all stakeholders involved, who are tasked to navigate beyond their own fields of practice, translating knowledges, and balancing various priorities related to both care and control (Moore 2007; Quirouette et al 2016). Research has shown how legal actors navigate these therapeutic environments, informed by the type of case they have before them, their previous experience, as well as available resources and relationships with other actors (Bernier et al, 2011). This highlights the importance of examining defence lawyers’ understanding and strategies around DTCs.

METHODS

We draw from a larger project about defence lawyers in criminal courts who work with clients facing marginalization (n=147). In the larger project, we included defence who practice in two different provinces, in northern, rural, suburban and urban areas, with equal proportions of private practice and legal aid lawyers. For this paper, however, we focus on a subset of participants who practice in and around two urban centers: Montreal (n=50) and Toronto (n=48)[9]. We focus on this group as they had more to say about DTC[10]. Our analysis focuses on qualitative interviews, but we also include fieldnotes from our observations in courtrooms, courthouses, criminal lawyers’ events and training sessions.

We gained access to participants through snowball methods, making use of existing networks and direct recruitment strategies. In Toronto, 30 interviews were done in 2018/19, pre-pandemic, either at the courthouse, in legal aid spaces, or at law firms in the city. 18 more Toronto interviews were conducted from 2021-23, mostly on Zoom. Later in 2022 and 2023, we re-interviewed 12 of our ‘original’ participants from 2018. Meaning, for Montreal and Toronto, we conducted 110 interviews with 98 participants. In Montreal, 50 interviews were conducted from 2020-23, also mostly on Zoom. This matters because practices and perceptions about DTCs do change over time, and our paper might not reflect the current realities of these programs[11]. The initial 30 interviews were all conducted by the study PI; subsequently, four research assistants – including two co-authors on this paper – also helped conduct interviews.

Interviews lasted an average of 1 hour and 50 minutes. They were semi-structured, with questions focused on defence work with multiply disadvantaged defendants with regards to practice management, relationships with clients, and issues related to bail, community supervision, alternative measures, plea bargains and sentencing. Interviews also focused on interactions with community service providers and on collaborative problem-solving initiatives. Participants were all asked about their impressions and experiences with specialized courts. Participants were also asked how they support clients who use drugs, for whom therapeutic interventions are relevant, outside the confines of formalized programs. This informs our findings about ‘DTC in regular courts’.

Some had direct experience working for or with DTC program (79). Our participant group includes defence who have worked inside DTC programs as rotating (or appointed) duty counsel and private counsel who have appeared in DTC. Those with direct experience provided valuable insights into challenges, best practices, and program modifications over time. We also included, and analyzed, what was said by some lawyers with little to no direct experience in DTC’s (19). This group had opinions about DTC, shaped by what they had heard from colleagues and clients. We documented their impressions and resulting optimism or pessimism towards these courts. Understanding their views on this, even if they are based on hearsay, is essential to understanding when and why defence are willing to advise their clients to agree to DTC.

Our paper is not an evaluation, or comparative analysis of Toronto and Montreal’s DTC’s. Our paper offers analysis and discussion of the perceptions of criminal defence lawyers who practice primarily in those two cities. We acknowledge that their accounts might not reflect the current realities of DTCs in Toronto, Montreal, or other parts of Ontario and Quebec. And while our participants practice primarily in Toronto and Montreal, they also work in other jurisdictions. What they told us about DTC’s might reflect their engagement with programs operating outside Toronto and Montreal.

Interview memos were written after each interview, and then again after coding. Three members of the research team, PI included, organized the data using ‘codebook style thematic analysis’ (Braun and Clark, 2021) using NVivo software. We co-constructed shared ‘live’ documents to build vertical memos (focused on participants) and horizontal memos (focused on established and emerging themes). This helped our team maintain a structured approach that could stay open to unexpected themes. For example, the topic of DTCs was not explicitly part of the original semi-structed interview guide. However, asking about therapeutic courts led to discussions about experiences with Drug Treatment Courts[12]. Via memo writing, team discussions and revision of semi-structured tools, we adapted later interviews to ask more precisely about DTC.

FINDINGS

All 98 participants had experience working with clients with drug related charges. They were familiar with DTCs, but many did not express an opinion on this type of program. More than half of our participants (52/98) expressed a clear value judgement for or against DTCs[13]. Of this group, 31 were primarily ‘negative’, 10 were primarily ‘positive’, and 11 shared mixed positions, perspectives, or experiences. We note a lack of consensus on DTCs. Nonetheless, some key themes can be identified. In sections 1 and 2, we focus on key advantages and disadvantages reported by criminal defence lawyers. In section 3, we show how defence lawyers borrow from DTCs’ logics and practices to navigate court expectations, secure a better outcome for clients, and avoid the drawbacks of formal DTCs. We then discuss the relevance of these findings in relation to how courts can (re)produce inequality, how health care access is managed by courts and corrections, and how drug toxicity crises and calls for harm reduction and decriminalization shape lawyers’ perspectives on DTCs.

1. DTC Merits

Though much of what we heard from participants was critical of DTCs, it is useful to highlight when and how some expressed appreciation for this court program model. As we discuss below, (1) participants who lacked direct experience with DTCs appeared to be the most enthusiastic about the program. Those who had advised or participated directly in DTC programs also reported some more positive aspects. They told us about (2) the general merits of therapeutic justice, and (3) the ultimate importance of clients being a good fit for the program.

1.1. Criminal defence lawyers who lacked direct DTC involvement expressed much optimism about the value of these programs. They reported high expectations and hope that these programs could improve the legal process for marginalized and/or disadvantaged accused by enhancing access to supports and alternative measures to criminalization. For example, Isiah expressed that, while he has never worked with a DTC, he “loves” the idea because “the more options or resources are available to people the better. Anything that considers changing things out of the normal course of your only options are plea or trial.” Many others who also expressed optimism and interest in the model had not yet represented clients through the DTC process. These participants believed specialized courts and treatment programs offer a legal process tailored to the unique needs of over-represented groups in the criminal justice system. 

1.2. Some lawyers told us specialized courts can have positive impacts on their clients. Participants explained how specialized training provided to DTC staff makes them more sensitive and competent working with PWUD. Some talked about how, unfortunately, participation in specialized courts can sometimes be the best – or only – opportunity for the accused to engage in therapeutic work with qualified multidisciplinary teams. We heard how having dedicated teams providing continued support from start to finish helps with service continuity[14], relationship-building and better adapted interventions. One duty counsel with direct experience in DTC explained how he liked the program and found it rewarding to support clients involved because “there's a real team that works in drug treatment court” (Cory). Participants also liked that in DTCs, clients are treated in a more familiar, casual manner, unlike ordinary courts. They liked how DTCs stagger program expectations into phases, to work on things gradually, sometimes only expecting abstinence closer to graduation. Some participants reported that mandated interventions encouraged defendants to positively transform their drug use and life circumstances[15]. Lawyers who collaborate with DTCs also talked about gaining insight into how PWUDs manage access to addiction or recovery resources (detox, rehabilitation, group support), sometimes helping them work toward abstinence or harm reduction goals.

Defence lawyers told us about reductions in sentence harshness. DTCs involves long-term monitoring and support, providing enough time for clients to demonstrate capacity to comply with conditions, and more generally, to transform and better themselves according to social norms. This extended time on bail can generate more potential to breach, but if things go well, it can also give time to work on showing remorse, demonstrating efforts have been made to address risk factors. Several participants mentioned judges and lawyers for the Crown show moderation, even when defendants fail the program. They highlight how in some cases, DTC involvement can have a net positive impact on sentencing outcomes. As we explain later, though, punitive outcomes can also be amplified.

1.3. Lawyers with direct experiences with DTCs reported on how they can be a good choice. As Madeleine put it, ‘it’s for specific cases. It’s not always the right fit, but when it is, it can be good’[16]. This participant and many others explained it is only beneficial for clients who are the perfect fit. More ‘perfect’ DTC clients are described as having a high level of motivation, willingness to engage in long-term therapy and commitment to follow conditions imposed by the court. For them, the program can be life-changing, facilitating recovery, reducing conflict with the law, while supporting enhanced stability. As we discuss next, defence lawyers report many PWUD are not a perfect fit.

2. DTC Criticism

Most participants expressed at least some level of criticism regarding DTC. They focused on (1) exclusionary eligibility criteria, (2) legal requirements, like waiving right to trial, locking in a guilty plea, and delaying sentencing to remain on bail, and (3) the onerous nature of the program, specifically its length, conditions, lack of individualization, and punitiveness.

2.1. Participants expressed dissatisfaction with strict eligibility requirements. Many raised concerns about DTC programs exclusively admitting defendants who have been convicted of non-violent but serious offenses. Ginette told us how “people can’t be in the program if they just have a bullshit charge. It has to be a serious charge, since the DTC program’s going to take them about two years to complete anyway”[17]. Others talked about how eligibility criteria problematically exclude individuals who have violent charges, alleged gang affiliations, or who are assessed as having concurrent issues, including overlapping drugs and alcohol problems. According to our participants, strict eligibility leads to the gatekeeping of crucial rehabilitative resources that are often not available outside the criminal justice system.

Participants noted the impact of social class in the selection process. Private defence explained how people with privilege, wealth and social resources can more readily access rehab or other supports by themselves and can afford private representation to navigate their legal troubles. Their concern speaks to structural inequalities that exist within the criminal justice system. On the other end of the spectrum, participants also talked about their more marginalized clients not qualifying. Some complained about cherry picking, explaining this is similar to what happens with other special programs and diversions, which are also more accessible to white, young, socially conforming clients.

2.2. Lawyers reported being hesitant to encourage DTC participation because admission requires guilty pleas being ‘locked in’ after a 30-day opt-out period. Some explained how this infringes upon the presumption of innocence, as some PWUD are discouraged from asserting their right to a trial via the offer of drug treatment and supports and may not fully grasp the ramifications of waiving their rights. As André puts it:

The defendants have to agree to plead guilty to all the charges, and sometimes we don't even have the expert reports... you know, it's... it's completely unbelievable. Sometimes with these programs, the intention is noble, but it's too cumbersome and the straitjacket is too tight...[18].

Like him, many expressed concern clients are pressured into pleading guilty and are then exposed to coercive conditions that can heighten the risk of punitive outcomes including detention. Requiring a guilty plea also hinders lawyers’ ability to help innocent clients who need drug treatment supports. Participants explained they can end up forfeiting a strong defence, waiving their right to trial, securing a guilty plea while banking on a lenient sentence that may or may not materialize. Expanding on this notion, another participant shared that if DTC’s reduced the risk of punitive outcomes, lawyers might be more willing to recommend then.

2.3 Participants also communicated concern with high failure rates, leading some to dissuade defendants from these courts. Lawyers working in Montreal and Toronto expressed how – from a legal point of view - DTCs take a problematically long time. Danielle complained; ‘DTC is never-ending!’[19] She and others described the journey through DTC as an all-consuming, multi-year endeavour. Some Toronto participants even talked about judges requiring monthly follow-ups past graduation as part of the conditional sentence.

The lengthy process demands a lot of dedication from participants and opens up potential for accumulating administrative charges from breaching conditions. Relatedly, interviewees criticized how DTCs impose a rigorous schedule of commitments. As Jody put it “drug treatment court is very onerous. It's at least two days a week at court. And then you're also going in for your group sessions everyday. So, a lot of clients fail”. They also talked about situations where missing one court appearance led to an arrest warrant. According to participants, these requirements put defendants at risk of breaching and being incarcerated, disrupting the very rehabilitation process the DTC aims to facilitate. Interviewees explained how marginalized PWUD often risk violating their conditions due to the lack of adequate support and precarious life circumstances. They explained how strict conditions further criminalize and also marginalize already vulnerable individuals. Recalling her work with a DTC, Melody explained: “most clients are homeless or precariously housed and living in poverty. So, it's a combination of stuff that makes it hard for them to complete the program. Then they're penalized for not completing it”. Defence worry because they know any breach of bail conditions can trigger consequences for future interactions with courts, amplifying perceptions of risk, driving punitive outcomes in the process. 

They expressed reservations about DTCs’ demanding conditions of release, expectations and mandated court and therapy schedules. Most explained the conditions imposed are unrealistic for PWUD. More specifically, curfews, weekly drug testing and mandatory group sessions are imposed. Montreal lawyers criticized stricter abstinence requirements, describing how participants risk expulsion whenever they relapse. Toronto lawyers told us about DTC clients being held in jail to get ‘taught a lesson’ if they relapse or breach conditions. Participants noted this is out of step with evidence-based practices focused on supporting PWUD, recognizing how common relapse is and how damaging it can be for DTC clients to get punished and held in jail, let alone kicked out of the program. Like Ophélie, several defence lawyers worried about how bail conditions in DTC leave ‘zero margin of error’ for PWUD[20]. Relatedly, Danielle expressed frustration: “you can do all that work, then one relapse and everything comes crumbling down”[21].

Some participants talked about being less critical of DTC programs where rules around compliance and abstinence are flexible and individualized. For example, Toronto participants explained clients do not get kicked out for relapse. Some called for even more adapted conditions, to better centre harm reduction principles. Lauren explained: “Clients relapse. Clients have bad weeks, bad months. It doesn't mean that they're not progressing. It just means that their progress isn't linear”. Sensitive to complexities of recovery as a non-linear process, they told us about the need for a more realistic and less punitive approach.

Participants highlighted the pathologizing and paternalistic aspect of DTC. Some emphasized how they fail to actually individualize the program for each accused, resorting to automatic conditions of release and standardized group sessions. They noted how clients have access to pre-determined temporary supports, which are often insufficient, and not culturally or gender appropriate. Indeed, DTC clients are given little autonomy to create the plan they perceive as the most appropriate to them. This standardized approach can be incompatible with how PWUD want to, or are able to, change how they use. Participants almost unanimously stressed the DTC model blames, stigmatizes and punishes PWUD, while saying or doing little to address larger societal and systemic factors that contribute to drug use and related criminalization, like housing instability, social isolation or unemployment.

3. Using DTC Principles in ‘Regular Courts’

As we have illustrated, some participants see DTC programs as unsuitable and unfavorable to marginalized clients. However, participants working in private practice reported being inspired by and borrowing from DTC programs to adapt their practices in regular courts. This was described as a set of practices providing advantages by (1) buying more time, (2) considering the client and their issues more holistically, and (3) adapting to normative expectations in criminal courts around therapeutic goals, personal transformation, and the importance of rehabilitation. 

3.1. Some participants told us they negotiate for extended bails, delaying sentencing – aka waiving 11B rights – in order to give clients time to demonstrate their willingness and ability to comply with judicial requirements. We heard that accepting and encouraging therapeutic bail conditions without resorting to official DTC programs can help defence negotiate more effective plea bargains. Doing this without locking in a guilty plea first. Cooper explained he prefers to “do all this stuff up front” hoping to negotiate a non-custodial outcome later on. His goal is for clients to avoid pleading guilty, while managing to secure a lenient outcome. Like him, other lawyers turn to informal therapeutic justice practices when clients are able to access necessary interventions.  

Lawyers who engage in informal therapeutic justice usually show a very high level of involvement and take care of tasks that would normally have been carried out by social workers within the framework of formal programs. Several reported locating and contacting resources, supporting their clients with transport, negotiating waiting list, completing application forms, collaborating with stakeholders and offering emotional support. Riley explains:

I’m basically writing a treatment program. I’m sending him worksheets with questions like: “What are your goals? What are 5 things that you can do this month to get you to that goal?” He’s also working with other treatment providers and doing residential treatment. There’s a big gap, so I just fill it by coming up with a treatment program myself.

Others, too, talked about taking on extra-legal tasks during the informal therapeutic justice process. One even explained he hired a social worker to join his practice, to support the work he can do in court.

Some explained that in contrast, marginalized accused who rely on self representation or duty counsel support cannot afford the same opportunities for informal therapeutic justice, as they face different pressures to plead guilty quickly, and cannot get the same kind of intensive support. Good private market options for detox or rehab are rare, and exorbitantly expensive, but people able to pay can get access to some type of residential programs. On the other hand, for PWUD who rely on publicly funded programs, waitlists for residential programs are long and very difficult to navigate,

Outside specialized courts, embracing therapeutic justice is not always possible. As Valentin, put it, legal actors have to be receptive to informal arrangements; “ So it’s a matter of making sure we appear in front of the right judge for the bail hearing.” Then, “Ideally, the judge will say ‘OK, I’ll release you directly to treatment and keep an eye on you’. In the end, the judge will have witnessed this person working hard and doing well, checking in every few months. Then the court might be more willing to consider a hybrid or non-custodial sentence. It’s something we do a lot.”[22]

Participants in both cities reported it can be advantageous to request adjournments, invest in theory, to find informal resolution for PWUD, without having the case traversed to DTC.

3.2. Participants explained informal therapeutic justice allows more opportunity to consider PWUD holistically and to adapt the legal process to clients’ specific situations. According to them, informal negotiations limit intrusiveness into the client’s private life. For those who can borrow selectively from DTC practices, it means less surveillance, no automatic drug testing, and flexibility regarding what therapies and treatments might be best, considering financial questions but also preferences and availabilities. Informal therapeutic justice also promotes client agency, as Cooper’s describes here:

I prefer informal diversion so much because it's less intrusive on the client's life. We can map our own, individualized path. They can choose the supports that they think are good for them rather than just sitting down with the social worker who's going to give them a list or programs to choose from or tell them that this is what they have to do.

Informal therapeutic justice was lauded for adapting to the preferences of clients navigating issues related to both conflict with the law and the use of drugs. Some explained access to private supports provides opportunity to find therapies that better match clients’ personal goals (abstinence, recovery work, harm reduction, etc.) and intersecting needs (language-, gender-, culture-, disability-related etc.).

3.3.  Elements of therapeutic justice have been routinized by legal actors, who are now accustomed to using these logics to manage perceptions of risk and rehabilitation to make decisions about case processing. As a result, some private defence lawyers have developed in-house protocols, like questionnaires with specific questions related to social precarity/marginalization or drug use. These questions target aspects like objectives, motivation, and personal resources, offering a more detailed portrait of the client that can be used in negotiations.

Relatedly, a few participants told us about situations where judges set up their own informal drug court. Riley described:

What he will do is have the client enter a plea, not sentence them, put them on a bail and have them come back and check in with him every week or two about the progress of that bail, and it’s basically with the Drug Treatment court, but it’s not restricted, it’s being done by a judge, with the idea that if, at the end, they’re doing well, he’s going to give them a more lenient sentence, and it they’re doing more poorly he’ll give them a harsher sentence.

This scenario, of course, described an informal diversion where the plea is still ‘locked in’. According to some, this is a creative and more flexible strategy for better responding to the needs of PWUD, considering numerous limitations of both DTCs and the broader legal and health systems.    

Private lawyers who take on Legal Aid certificates underscore yet another concern: the remuneration they receive for providing 12-24 months of support to clients in DTC is grossly inadequate. Their compensation is misaligned with the level of commitment and time investment required. For instance, we heard from several participants in both provinces how they got paid an insufficient amount as a block fee, which does not reflect the amount of hours involved in getting their client to do the program. The disconnect between compensation and perceived effort creates a situation where lawyers may be disincentivized from representing clients in DTC or from facilitating informal therapeutic justice during the bail stage. Relatedly, participants brought up how seniority, prestige, reputation, and networks – field specific capital – make prosecutors inclined to listen to their arguments in favor of extended therapeutic bail practices. As they put it, negotiating around the legal relevance of social and therapeutic needs requires mutual trust, recognition, and sometimes a distancing from the adversarial nature of the legal process[23]. When it comes to therapeutic justice, the types of intersecting (dis)advantages faced by both defence lawyer and clients they represent shape which strategies become available.

DISCUSSION AND CONCLUSION

Drawing upon in-depth interviews with 98 criminal defence lawyers representing marginalized PWUD, this paper examined how defence talk about and engage with DTC programs. We described what they reported as the merits and drawbacks of these programs and showed how defence borrow from DTCs in the context of traditional court proceedings.

DTCs are commonly promoted as a more benevolent way to address intersections between offending and drug use, housing insecurity, and other social issues. Our interviewees spoke with appreciation about these programs’ collaborative team approach, creating a more supporting court environment and providing marginalized PWUD with housing and social services supports they could not access otherwise. We heard about how DTC can work well for compliant, motivated people who are the ‘perfect fit’, or who are, as Moore and Hirai (2014) put it, either “true believers or good performers”.  When the fit is right, helping clients with DTC can be part of a ‘zealous defence’, with counsel doing whatever it takes to get a better outcome for their client, even if it means pursuing therapeutic justice and working with clinical teams (see also Van Cleve 2012; Moore 2007). Yet, ironically, it was defence lawyers who had not worked directly with DTCs who were the most optimistic about their potential. They talked about wanting better solutions for their clients who use drugs and are criminalized, and hoped DTCs could provide that.

Our findings suggest many defence lawyers support broader therapeutic goals underlying DTCs but are critical of legal aspects of the program that undermine the defendants’ rights to be presumed innocent and to a fair trial, and exacerbate their risk of being controlled via punitive court conditions. Participants voiced concern about the stringent admission criteria, which tend to exclude those with the highest need for services and supports yet who are often the least able to secure such supports outside the criminal justice system. For example, those with complex intersecting needs, gang affiliation or violent criminal records. For those select clients who are eligible for DTC intervention, it is still difficult to comply with program expectations. In fact, the vast majority of DTC participants (about 80%) do not graduate successfully (Government of Canada 2021).

For therapeutic actors involved in DTCs, success may be defined by factors other than graduation – improved housing stability, harm reduction practices related to drug use, contact with health care, etc. But for the criminal defence lawyers we spoke to, the legal ramifications of using courts to access conditional therapy are concerning. Lawyers expressed concerns that some PWUD find themselves compelled to plead guilty and accept stringent conditions of release because they are unable to afford anything else. They explained how this sets them up for breaches, program expulsion, a worsening criminal record, impacting bail release or sentencing in the future. Some of our participants described the experience of PWUD in DTCs in ways that evoke notions of ‘dispersing degradation’ (McNeill 2019) and show how courts can contribute to worsening injustice (Clair and Woog 2022). Ultimately, marginalized PWUD face barriers in accessing justice, housing, rehabilitation and other social supports. While DTCs facilitate access to supports, defence lawyers report legal drawbacks. Many called for shifts away from punitive control, towards improving access to a variety of voluntary harm reduction and recovery focused supports, thereby enhancing PWUD’s wellbeing and ability to avoid future conflict with the law. 

Interviews also highlighted concerns that DTCs’ narrow admission criteria mean certain people who are multiply disadvantaged tend to be excluded by crown attorneys in charge of the screening[24]. Recent national evaluations suggest the average participant in Canadian DTC programs is male (74%), white (55%), with the mean age ranging from 30 to 39 (Government of Canada 2021; page 11). Indeed, women, Indigenous and Black individuals, as well as young people, are underrepresented in DTCs. These exclusions were explained by a variety of factors, including the fact that for some groups - like women or people with certain disabilities - there might not be suitable community supports able to collaborate with the DTC. Also “individuals from under-represented groups may be unwilling to participate due to distrust of the justice system.” (ibid; 16). And racialized groups may be “targeted more by police and may be more likely to be seen as connected with a ‘gang’ and/or be charged with committing a ‘violent’ offence (e.g., resisting arrest) than members of other groups” (ibid). For some of our participants, the biggest problem with DTC is its selective nature.

In the context of DTCs, the imposition of a guilty plea sheds light on entrenched systemic issues within the criminal justice system, in particular, the problem of marginalized people facing greater pressure to accept plea deals and onerous conditions (Kellough & Wortley 2002; Sylvestre et al 2019). Some of our participants’ reluctance to recommend these programs to their clients stems from this obligatory guilty plea, which infringes on the fundamental right to the presumption of innocence and obstructs their ability to advance a legal defence. Our findings support what Woolley (2016) argues: “hard questions [around plea bargaining] arise because of the nature of the legal and ethical duties that lawyers owe to their clients when combined with the structural frailties in the justice system that make it impossible for those lawyers to fulfill all of their legal and ethical duties simultaneously.” (1196).

While participants were critical of DTCs, our findings also indicate how and why they borrow from DTC models and practices to develop their own strategies, while trying to avoid rigid or punitive aspects that could set up a breach or undermine a productive plea negotiation. This – of course, contributes to managerial justice where criminalized people are ‘marked’, hassled’ and ‘made to perform’ while under court ordered supervision in the community (Kohler-Hausmann 2018). In the case of PWUD, DTCs (re-)shape defence options, creating new considerations and challenges. Some of our participants explained that since they have so few good options, they simply cannot afford to dismiss what might provide an advantage for their clients.

When their clients have access to supports, defence counsel are sometimes able to propose a therapeutic plan (like going to residential rehab) and avoid locking in a guilty plea. But this is not always possible, and personalized plans, usually crafted by private practice lawyers, frequently entail reliance on private resources. Participants noted these private, in-patient rehab supports are costly, ranging from $5,000 to $10,000 for shorter programs and up to 35 000$ or more for a longer stay. Even for people eligible for services through welfare or disability, waitlists and a lack of adapted programs can be a barrier. The reality is that this type of supported, yet informal, therapeutic diversion remains beyond reach for most. The exclusion of marginalized individuals from crucial support systems pushes them towards punitive options: pleading guilty or suffering in detention.

Despite ongoing debates surrounding legalisation and decriminalization of drugs in Canada, and despite increased calls for more safe supply and support for harm reduction (Greene et al. 2023), PWUD are often in conflict with the law. Making matters worse, criminalized and marginalized PWUD face stigma and lack access to affordable, comprehensive social services supports in the community. The magnitude and seriousness of this problem has been exacerbated by concurrent, harrowing drug toxicity and housing crises. PWUD continue to find themselves punished, stigmatized, and deprived of access to essential and life-saving care. Still, for some, involvement in the criminal legal system provides one of the only avenues for supports and treatment. Our findings raise questions related to society's tendency to allocate more resources to punitive measures targeting PWUD, such as law enforcement, courts, and surveillance, as opposed to proactively supporting individuals with access to essential resources that have the potential to facilitate clients’ desistance from criminal activity and long-term wellness and stability. Our analysis underscores that many defence want to see affordable and accessible rehabilitative programs, independent from the judicial system.           

Echoing calls from numerous social-legal scholars (Hannah-Moffat and Maurutto 2012; Kohler Hassmann 2018; Sylvestre et al. 2019), criminal defence lawyers point to how the judicial system can expand its reach, exporting notions of risk management and compliance to health care and social work. The findings we report draw attention to the heterogenous nature of social controls experienced by marginalized PWUD. They also highlight the frustration of defence struggling with the injustice they bear witness to (Bacak et al 2024) and are so often powerless to do much about (Slee 2013). We encourage future research to clarify when and how defence counsel can best help PWUD avoid onerous conditions at bail while accessing the community-based supports they need to be well and to avoid contact with police, courts and prisons.

REFERENCES

Baćak, V., Lageson, S. E., & Powell, K. (2024). The Stress of Injustice: Public Defenders and the Frontline of American Inequality. Social Forces (in press)

Beckett, K., & Herbert, S. (2010). Penal boundaries: Banishment and the expansion of punishment. Law & Social Inquiry, 35(1), 1-38.

Bellot, C., Lesage-Mann, É., Sylvestre, M.-È., Fortin, V., et Poisson, J. (2021). Judiciarisation de l’itinérance à Montreal : des données alarmantes témoignent d’un profilage social accru     

Bentley, P. (1999). Canada's first drug treatment court. Commonwealth Law Bulletin, 25(2), 634-647. 

Bentley, P. (2000). Drug court. Canadian Family Physician, 46, 982. 

Berman, G. (2004). Redefining criminal courts: Problem-solving and the meaning of justice. American Criminal Law Review, 41, 1313. 

Bernheim, E., Noreau, P. et Bahary-Dionne, A. (2021). La justice et la non-représentation au carrefour de la localisation sociale. Canadian Journal of Law and Society 36(3), 405-425.

Bernier, D; Bellot, C; Sylvestre, M et Chesnay, C. (2011) La judiciarisation des personnes en situation d’itinérance à Québec : point de vue des acteurs socio-judiciaires et analyse du phénomène. Toronto: The Canadian Homelessness Research Network Press.

Birgden, A. (2004). Therapeutic jurisprudence and responsivity: Finding the will and the way in offender rehabilitation. Psychology, Crime & Law, 10(3), 283-295. 

Bucerius, S., Haggerty, K., & Dunford D.T. (2020). Prison as a temporary refuge: amplifying the voices of women detained in prison. The British Journal of Criminology, 16(2): 519-537.

Buckley, R., & Bigelow, D. A. (1992). The multi-service network: Reaching the unserved multi problem individual. Community mental health journal, 28, 43-50. 

Burns, S. L., & Peyrot, M. (2003). Tough love: Nurturing and coercing responsibility and recovery in California drug courts. Social Problems, 50(3), 416-438.

Carlen, P. (Ed.). (2008). Imaginary Penalities (1st ed.). Willan.

Casey, P., & Rottman, D. B. (2000). Therapeutic jurisprudence in the courts. Behavioral sciences & the law, 18(4), 445-457.

CCLA. (2014). Set Up to Fail: Bail and the Revolving Door of Pre-trial Detention.

CCSA. (2007) Drug Treatment court FAQ’s https://www.ccsa.ca/sites/default/files/2019-05/ccsa-011348-2007.pdf

CCSUA. Opioids. Available at: https://www.ccsa.ca/opioids. Last accessed: December 1, 2023.

Clair, M. (2020). Privilege and punishment: How race and class matter in criminal court. Princeton University Press.

Clair, M & Woog, A (2022). Courts and the abolition movement. California Law Review, 110(1), 1-46.

Cohen, S. (1985). Visions of social control. Cambridge, UK: Polity Press.

DeBeck, K., Cheng, T., Montaner, J. S., Beyrer, C., Elliott, R., Sherman, S.& Baral, S. (2017). HIV and the criminalisation of drug use among people who inject drugs: a systematic review. The lancet HIV, 4(8)

Earp, B. D., Lewis, J., Hart, C. L., & with Bioethicists and Allied Professionals for Drug Policy Reform. (2021). Racial justice requires ending the war on drugs. The American Journal of Bioethics, 21(4), 4-19.

Fischer, M., & Geiger, B. (2011). What “works” in drug court: A bottom-up female participants' perspective. Journal of Human Behavior in the Social Environment, 21(7), 752-765. 

Fortin, V. et Raffestin, I. (2017). Le Programme d’accompagnement justice-itinérance à la cour municipale de Montreal (PAJIC) : un tribunal spécialisé ancré dans le communautaire. Revue générale de droit, 47, 177–208.

Government of Canada (2021) Drug Treatment Court Funding Program Evaluation https://www.justice.gc.ca/eng/rp-pr/cp-pm/eval/rep-rap/2015/dtcfp-pfttt/toc-tdm.html

Gliksman, L., Newton-Taylor, B., Patra, J., & Rehm, J. (2004). Toronto drug treatment court evaluation project final report. Toronto, ON: Centre for Addiction and Mental Health.

Gottfredson, D. C., Kearley, B. W., Najaka, S. S., & Rocha, C. M. (2007). How drug treatment courts work: An analysis of mediators. Journal of Research in Crime and Delinquency, 44(1), 3-35. 

Grecco, G. G., & Andrew Chambers, R. (2019). The Penrose Effect and its acceleration by the war on drugs: a crisis of untranslated neuroscience and untreated addiction and mental illness. Translational psychiatry, 9(1), 320.

Greene, C., Maier, K., & Urbanik, M. (2023). “It’s just not the same”: Exploring PWUD’ perceptions of and experiences with drug policy and SCS services change in a Canadian city. International Journal of Drug Policy, 103934.

Hannah-Moffat, K., & Maurutto, P. (2012). Shifting and targeted forms of penal governance: Bail, punishment and specialized courts. Theoretical Criminology, 16(2), 201-219. 

Hannah-Moffat, K., Maurutto, P., & Turnbull, S. (2009). Negotiated risk: Actuarial illusions and discretion in probation. Canadian Journal of Law and Society/La Revue Canadienne Droit et Société, 24(3), 391-409.

Harrison, L. D. (2001). The revolving prison door for drug-involved offenders: Challenges and opportunities. Crime & delinquency, 47(3), 462-485.

Hatt, L. (2021). The Opioid Crisis in Canada. Parliament of Canada. Available at: https://lop.parl.ca/sites/PublicWebsite/default/en_CA/ResearchPublications/202123E. Last accessed December 1, 2023.

Herring, Chris, Dilara Yarbrough, and Lisa Marie Alatorre. 2020. "Pervasive penality: How the criminalization of poverty perpetuates homelessness." Social Problems 67(1):131-149.

Jackman, M. (2021). Protecting Health, Respecting Rights: Decriminalizing Drug Possession as a Constitutional Imperative.

Kerr, Thomas, Kanna Hayashi, Lianping Ti, Karyn Kaplan, Paisan Suwannawong, and Evan Wood. 2014. “The impact of compulsory drug detention exposure on the avoidance of healthcare among injection drug users in Thailand.” International Journal of Drug Policy 25: 171-174.

Kohler-Hausmann, I. (2014) Managerial Justice and Mass Misdemeanors. Stanford Law Review, 66(3).

Kohler-Hausmann, I (2018) Misdemeanorland: Criminal Courts & Social Control in an Age of Broken Windows Policing. Princeton: Princeton University Press.

Lappiere, M. (2023). Montreal needs help dealing with homeless people, drugs and asylum seekers near UQAM, mayor says. CBC News. February 22, 2023. Available at: https://www.cbc.ca/news/canada/montreal/berri-uqam-homeless-drugs-roxham-1.6756267. Last accessed: December 1, 2023.

Lavalley, J., Kastor, S., Valleriani, J., & McNeil, R. (2018). Reconciliation and Canada’s overdose crisis:   responding to the needs of Indigenous Peoples. Cmaj, 190(50), E1466-E1467. 

La Prairie, C., Gliksman, L., Erickson, P.G., Wall, R., & Newton-Taylor, B. (2002). DTCs—A viable option for Canada? Sentencing issues and preliminary findings from the Toronto court. Substance Use and Misuse, 37 (12-13), 1529–1566.

Lynch, M. (2000). Rehabilitation as Rhetoric: The Ideal of Reformation in Contemporary Parole Discourse and Practices. Punishment & Society

Moore, K. Barongi,M & Rigg, K.K. (2017). The experiences of young adult offenders who completed a drug treatment court program. Qualitative Health Research, 27(5), 750-758.

Moore, D. (2007). Translating justice and therapy: The drug treatment court networks. British Journal of Criminology, 47(1), 42-60. 

Moore, D. (2011). The benevolent watch: Therapeutic surveillance in drug treatment court. Theoretical Criminology, 15(3), 255-268.

Moore, D. & Hirai, H. (2014). Outcasts, performers and true believers: Responsibilized subjects   of criminal justice. Theoretical Criminology, 18(1), 5-19. 

McNeill F (2019) Penal and welfare conditionality: Discipline or degradation? Social Policy Administration (54): 295–310.

Myers, N (2021). The More Things Change, the More They Stay the Same: The Obdurate Nature of Pandemic Bail Practices. Canadian Journal of Sociology, 46(4).

Nolan, J. L. (2001). Reinventing justice: The American drug court movement. Princeton University Press. 

Omori, M., & Petersen, N. (2020). Institutionalizing inequality in the courts: Decomposing racial and ethnic disparities in detention, conviction, and sentencing. Criminology, 58(4), 678-713.

Public Prosecution Service of Canada (PPSC) (2022) Public Prosecution Service of Canada Deskbook – 6.1 Drug Treatment Courts - Guideline of the Director Issued under Section 3(3)(c) of the Director of Public Prosecutions Act -  https://www.ppsc-sppc.gc.ca/eng/pub/fpsd-sfpg/fps-sfp/tpd/p6/ch01.html#section_2_3

Quirouette, M, Hannah-Moffat, K, Maurutto, P (2016) “A Precarious Place’: Housing and Specialized Court Clients” The British Journal of Criminology, 56(2): 370-388.

Resnik, J. (1982). Managerial judges. Harv. L. Rev., 96, 374.

Sabbeth, K. (2015). Zeal on Behalf of Vulnerable Clients, 93 N.C. L. Rev. 1475 http://scholarship.law.unc.edu/nclr/vol93/iss5/12

Scott-Hayward, C. S. (2017). Rethinking federal division: The rise of specialized criminal courts. Berkeley J. Crim. L., 22, 47.

Slee, G. (2023). Of the state, against the state: Public defenders, street-level bureaucracy, and discretion in criminal court. Social Service Review, 97(4)

Sue KL, Cohen S, Tilley J, Yocheved A. (2022) A Plea from People Who Use Drugs to Clinicians: New Ways to Initiate Buprenorphine Are Urgently Needed in the Fentanyl Era. J Addict Med. 01;16(4):389-391.

Steering Committee on Justice Efficiencies and Access to the Justice System. (2021). Therapeutic courts in Canada: A jurisdictional scan of mental health and drug treatment courts. https://icclr.org/publications/therapeutic-courts-in-canada-a-jurisdictional-scan-of-mental-health-and-drug-treatment-courts/

Sylvestre, M-È., Blomley, N. et Bellot. C. (2019). Red Zones: Criminal Law and the Territorial      Governance of Marginalized People. Cambridge University Press.

Turnbull, S., & Hannah-Moffat, K. (2009). Under these conditions: Gender, parole and the governance of reintegration. The British Journal of Criminology, 49(4), 532-551.

US Department of Justice (2023) Drug court Special Feature https://www.ojp.gov/feature/drug-courts/overview

Van Cleve, N. M. (2012). Reinterpreting the zealous advocate: multiple intermediary roles of the criminal defence attorney. Lawyers in practice: ethical decision making in context.

Vrancken, D., & Macquet, C. (2006). Le travail sur soi. Vers une psychologisation de la société?. Belin, Paris, France.

Warner, T. D., & Kramer, J. H. (2009). Closing the revolving door? Substance abuse treatment as an alternative to traditional sentencing for drug-dependent offenders. Criminal Justice and Behavior, 36(1), 89-109.

Weinrath, M., et al. (2019). A Quantitative Study of a Drug Treatment Court in a Western Canadian City: Post-sentencing and Re-offence Outcomes. Canadian Journal of Criminology & Criminal Justice, 61(4), 4-68.

Weinrath, M. et al. (2018). Accessing drug treatment courts: do age, race or gender matter? Australian and New Zealand Journal of Criminology, 51(4), 619-637.

Wexler, DB et Winick, BJ (1996). Law in a Therapeutic Key: Developments in Therapeutic Jurisprudence. Durham, NC: Carolina Academic Press

Winter, A and Clair, M (2023) “the Roughest form of Social work” How Court Officials Justify Bail Decisions, Criminology (online)

Woolley, Alice (2016) "Hard Questions and Innocent Clients: The Normative Framework of the Three Hardest Questions, and the Plea-Bargaining Problem," Hofstra Law Review (44)4 -10.

[1] Recent reports indicate a graduation rate below 20% in Canadian DTCs (Government of Canada 2021)

[2] We use terms like “marginalization” and “disadvantage” referring, to individuals who are racialized, use drugs, experience homelessness, struggle with mental health, disabilities, who live in low-income situations, engage in sex work, etc.

[3] In this paper, we focus on 110 interviews with 98 participants.

[4] Spatial restrictions are conditions imposed by courts which aim to prevent an individual from traveling to a certain area. These geographic boundaries vary, but can be a street, a block, a neighborhood, or even an entire city in some cases.

[5] In the US, the first DTC began operations in Miami, Florida in 1989. There are now 4000 programs nationwide (US Department of Justice 2023). DTCs are also operating in Australia, Brazil, Scotland, England, Ireland, New Zealand, Norway, Bermuda and Jamaica. (Government of Canada 2021).

[6] In Ottawa, there is no dedicated judge. Instead, there is a rotating team (Government of Canada 2021)

[7] For more information, see https://cdn-contenu.quebec.ca/cdn-contenu/adm/min/justice/programmes/pttcq/Montreal/PTTCQ_PROGRAMME_TT_MTL.pdf for Montréal and https://www.camh.ca/en/your-care/programs-and-services/drug-treatment-court-services for Toronto.

[8] Strict conditions can include curfews, drug testing, mandated therapies, and more broadly, compliance with what other medical or social authorities impose. More about onerous conditions in general (CCLA 2014) and in specialized courts (Quirouette et al 2016)

[9] For confidentiality reasons, all participants’ names have been replaced by aliases.

[10] DTCs are mostly located in urban centres with greater availability of the community-based resources (housing, addictions treatment, social services) that are integral features of the DTC model.

[11] In both cities, the main drug treatment court program saw disruptions and evolutions that played into how criminal defence see the value of supporting their clients’ participation. In Montréal, a relatively new program had to be established. Only since 2012, the Programme de traitement de la toxicomanie de la Cour du Québec (PTTCQ) has been operating as the centralised DTC for the greater Montreal region. On the other hand, Toronto’s DTC was established in 1998, the longest standing DTC in Canada (Bentley, 1999; Government of Canada 2021). In 2023, after 24 years of operation, they had to review and adapt protocols and practices following a challenging amalgamation of numerous provincial courts at a new location. As our interviews spanned across 5 years, some lawyers told us about programs that were pilot projects or that no longer exist.

[12] We also heard about Gladue, Mental Health Courts and Domestic Violence courts and will focus on those elsewhere.

[13] What the others told us about DTCs could not be classified as a clear value judgement for or against.

[14] We heard from participants in Toronto the court amalgamation affected consistency. The dedicated teams were replaced by rotating staff, who may work in specialized courts for only a few months and then not return for several more.

[16] Original “c'est vraiment pour des situations précises. Tu peux pas le mettre à toutes les sauces, tu peux pas le proposer à tout le monde, mais quand le fit est là c'est bon ».

[17] Original “C'est quelqu'un qu’il faut qu’il ait une longue sentence qui lui pende au bout du nez parce que si c'est une petite niaiserie, tu n’es pas admissible aux PTTCQ non plus parce qu’il faut que ça soit au moins une sentence de deux ans parce que ça va te prendre au moins deux ans à traverser le programme”

[18] Original “En plus, les accusés doivent s’engager à plaider coupable à toutes les charges alors que des fois, on n’a même pas les rapports d’expertise... tu sais, c’est... c’est complètement invraisemblable. C’est comme... de trop vouloir faire du bien...je pense que c’est pernicieux. Des fois avec ces programmes, l’intention est noble, mais c’est trop encombrant et le carcan est trop serré”

[19] Original : « c'est interminable »

[20] Original “Il y a pas de droit à l’erreur pour les toxicomanes ».

[21] Original « Pour arriver au bout du compte où une personne fait une rechute puis tout le château s'écroule”

[22] Original : Il y a des juges qui sont plus enclins que d’autres à remettre en liberté des gens en thérapie fermée (…) souvent ce qu’on fait c’est qu’on s’organise pour faire l’enquête caution devant le bon juge. Idéalement la juge dit, bien monsieur madame, je vous libère en thérapie fermée, mais je vais garder un œil sur vous (…) à la fin, le juge il aura vu cette personne-là pendant un an à chaque deux mois, la personne maintient ses acquis, elle fait tout le processus… à ce moment-là, la cour va être beaucoup plus encline à donner une sentence qui est souvent hybride, qui évite la détention ferme, c’est vraiment quelque chose qu’on utilise souvent.

[23] This is part of what DTCs try to facilitate via dedicated teams.

[24] Screening practices are ever evolving. The Public Prosecution Service of Canada recently had their guidelines updated and some of the eligibility criteria was softened (PPSC 2022).