British Columbia, on pace toward another record year of drug-poisoning deaths, is seeking to decriminalize personal possession of up to a total of 4.5 grams of illicit drugs such as heroin, fentanyl, methamphetamine, and crack and powder cocaine.
If the proposal is approved, people caught with less than this amount for personal use will be given information on how to access local health and social services. There would be no alternative administrative penalties, such as fines, or mandatory referrals to education or treatment. Police would not seize the drugs.
The details are contained in the province’s completed submission to Health Canada seeking an exemption from the federal Controlled Drugs and Substances Act, obtained by The Globe and Mail. The province is expected to submit the application early this week.
The 44-page document describes the province’s worsening toxic drug crisis – which has killed about 8,000 people since 2016, putting B.C. among the most devastated provinces – and the harms of criminalizing substance use. By comparison, B.C. has had 2,156 deaths related to COVID-19 as of last Friday.
The document points out the increase in drug deaths involving extreme concentrations of fentanyl, as well as the growing presence of benzodiazepines in the illicit opioid supply, and cites several studies on law enforcement pushing people to hide their drug use and avoid life-saving harm-reduction services.
The submission says criminal laws with the purpose of promoting public health and safety should not unintentionally increase the risk of death or serious harm. It also references Section 15(1) of the Canadian Charter of Rights and Freedoms, which guarantees equal protection and equal benefit of the law without discrimination.
“While the illicit drug poisoning crisis affects all [people who use drugs], people with substance use disorders – a recognized disability – are disproportionately affected,” the submission states. “All levels of government therefore have an obligation to minimize the mortality and morbidity risks of their policies and to not exacerbate any pre-existing inequities.”
The submission only deals with the drugs most commonly involved in illicit drug poisoning deaths. Other substances, such as psilocybin and MDMA, would be considered at a later date. It also only applies to people 19 years and older.
Under decriminalization, the manufacturing and trafficking of illicit drugs remains illegal.
Groups consulted for the submission disagreed on some points. The Vancouver Area Network of Drug Users, or VANDU, for example, said a cumulative threshold of 4.5 grams – as opposed to 4.5 grams for each substance, as floated earlier – was too low and failed to account for poly-substance users who typically carry larger quantities, as well as those who hold amounts for others.
Garth Mullins, a VANDU representative who is part of the province’s decriminalization core planning table, said various stakeholders appeared to be heading toward “a pretty good compromise” when the threshold limit was changed at the last minute.
“We had caught wind that [Minister of Mental Health and Addictions Sheila Malcolmson] had proposed 4.5 grams, and so we were consulting in VANDU about that. For fentanyl, coke and rock, that would have really decriminalized 95 per cent of us. It was very good,” he said. “But then somewhere in the [higher up] consultations, they decided it had to be cumulative. And that meant we couldn’t support those thresholds anymore.”
Meanwhile, police representatives felt the threshold was too high, and some cited potential risks and liabilities in allowing people to keep their illicit drugs, according to the document.
Leslie McBain, a co-founder of the support and advocacy group Moms Stop the Harm, said the province’s move to decriminalize personal possession is “definitely a step in the right direction,” but she feels the submission is not yet ready for delivery to Health Canada.
“For example, and importantly, there is no mention of decriminalization of youth who may possess illicit substances,” said Ms. McBain, who lost her son, Jordan, to an overdose in 2014. “What is written and not written into this submission for decriminalization will affect our children for the future. If they are not protected under this application, they can be thrown into the criminal justice system for possessing any amount of illicit substance. That is no way for them to start their lives.”
The document lists shorter-term objectives, including: increasing drug users’ awareness of and comfort with accessing health and social services; reducing seizures, arrests, charges, penalties and criminal records for simple possession; and reducing police and court resources spent on enforcement or prosecution of simple possession.
Long-term objectives include: reducing illicit drug poisonings and deaths; reducing health, social and economic harms associated with the criminalization of drug use; and increasing engagement and retention in treatment and support services for people with substance use disorders.
Ministerial mandate letters after B.C.’s 2020 provincial election directed Ms. Malcolmson, Public Safety Minister and Solicitor-General Mike Farnworth and Attorney-General David Eby to work with police chiefs to push Ottawa to decriminalize personal possession. In the absence of prompt federal action, the three were told to “develop a made-in-B.C. solution that will help save lives.”
The Globe and Mail reported in February that Ms. Malcolmson had written to then-federal health minister Patty Hajdu inquiring about the exemption.
Under Section 56(1) of the Controlled Drugs and Substances Act, the minister of health can exempt from provisions of the act “any person or class of persons … if, in the opinion of the minister, the exemption is necessary for a medical or scientific purpose or is otherwise in the public interest.”
The City of Vancouver has also submitted its own application to decriminalize personal possession within city limits.
People and groups who have called for drug decriminalization include B.C. Provincial Health Officer Bonnie Henry, former provincial health officer Perry Kendall and the Canadian Association of Chiefs of Police. In August, 2020, the Public Prosecution Service of Canada directed prosecutors to focus on the most serious drug crimes involving public safety concerns, “and to otherwise pursue suitable alternative measures and diversion from the criminal justice system for simple possession cases.”
A national survey released early this year by the Angus Reid Institute found a majority of Canadians support drug decriminalization. Of 5,003 Canadian adults surveyed, 59 per cent – a majority in every province except Saskatchewan and New Brunswick – favoured removing criminal penalties for possessing small amounts of drugs. B.C. had the highest level of support, at 66 per cent.
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