A first step for BC in the overdose crisis

"Nobody wanted to do it. Nobody still really wants to do it, but yet it's happening."

That's how Kennedy Stewart, former mayor of Vancouver, describes how his city and British Columbia became just the second place in North America to decriminalize hard drugs.

As of February, the province's residents can legally carry up to 2.5 grams of heroin, crack, cocaine, MDMA, or fentanyl. It is arguably the most significant legal change yet in Canada's effort to stem the rise in deaths from the opioid crisis.

Stewart deserves credit for getting the ball rolling. As mayor, he submitted an application to Health Canada to have the city exempted under s.56(1) of the Controlled Drugs and Substances Act — a mechanism designed to allow the federal health minister to decriminalize possession of small amounts of certain illicit substances for personal use, its application if she believes it to be "necessary for a medical purpose." Not long after, the government of British Columbia joined the effort. The federal government approved their application last year.

Drug advocates in Vancouver have long argued that decriminalization is a necessary step to fight an epidemic of drug overdoses and poisonings. In recent years, calls for decriminalization have come from the Canadian Association of Chiefs of Police, numerous public health officials, the Criminal Lawyers Association, and a raft of other organizations and individuals.

Supporters of the proposal say it will, at a minimum, reduce some of the harms drug users face. Police will have less reason to stop, question, and arrest drug users. 

But drug users say decriminalization isn't enough: It's just the first step. Legal challenges currently making their way through the courts may push Ottawa into the next big leap.

The long road to decriminalization

The wheels of decriminalization have been in motion for quite some time. "I don't think that there's been much significant change yet," says Kyla Lee, who practises criminal law in Vancouver.

Lee, who is vice-chair of the CBA's criminal law section, notes that the Public Prosecution Service of Canada (PPSC) promulgated a new policy in 2020, calling on Crown prosecutors to avoid laying simple drug possession charges, with some exceptions. At the time, lawyers worried that the guidelines would lead to little actual change.

But things did change in Vancouver, particularly in the Downtown Eastside, says Lee.

"I haven't seen, since PPSC's policy charge, a single charge approved on its own for possession," she told CBA National. Even outside the city, charges have declined substantially — save for the occasional arrest in Whistler for cocaine possession, she says. Arrests have been relatively few and far between. 

There had been fears that police would charge drug users with more serious offenses — like possession for the purposes of trafficking.

But those have been rare, too, says Lee. "As far as police enforcing that policy through arrests…it wasn't happening as much, especially not in Vancouver," she says. The defence bar has been pushing back against those charges when they did arise. The message was that trying to upgrade simple possession charges wouldn't fly.

The Crown, Lee says, has taken that cue well. 

A parallel change has helped that trend along. The PPSC, particularly in more rural parts of the country, has relied on agents — criminal lawyers contracted to handle prosecutions — to handle many cases that wind their way through the system. For various reasons, the PPSC in British Columbia has been decreasing its reliance on agents. 

Instead, the prosecution service has been dispatching lawyers from its Vancouver headquarters to handle those cases — essentially exporting the PPSC's experience in the city to how it handles cases elsewhere. "The centralization of it has helped," Lee says.

So there is a general directive to stop laying charges for drug possession, a defence bar vigorously contesting those cases that do make it to court, and a judiciary that has been leery of low-level drug prosecutions. It has all crashed together to limit those prosecutions drastically.

Decriminalization

With decriminalization just two weeks old, Lee says, "there hasn't been enough time yet to see the effects of this."

But even though Vancouver, in particular, has led the charge in scaling down those arrests and prosecutions, there is still substantial room for change.

Kennedy, for example, points out that setting out a more black-and-white policy for all parts of the legal system — not just prosecutors — creates a lot of clarity.

"It gets the police out of the lives of drug users," Kennedy says. "The police still seize a ton of drugs. And so if you're a sex worker, you're out on the stroll, doing something, and police stop you, they seize your drugs. So if you have to score, you're pushed into very risky behavior."

Lee says drug users shouldn't get their hopes up.

"I have absolutely no confidence that the police — if they stop someone, search them, and find drugs — that the person is going to walk away with their drugs," she says.

"We haven't even necessarily been seeing that with cannabis," Lee points out: And cannabis is legal.

Lee is fatalistic about the short-term effects of decriminalization. Yes, she says, it will bake in the trend that's been happening in British Columbia for years. But it also promises to replace discretion with standardization.

"If you asked me my prediction, I think we're going to have a pendulum swing to a more letter-of-the-law approach, initially, where we're going to see things that wouldn't have been charged before getting charged," she says. 

Because the regulations surrounding the exemption are more prescriptive than the ad hoc decriminalization that existed before January 31 — the federal exemption specifies precisely how much the users can hold before the Act applies again — it could incentivize arrests, charges, and prosecutions for amounts exceeding that amount.

Lee says to expect an increase in charges for possession for the purposes of trafficking.

"I also think that the police are going to be using some really questionable justification for it," Lee says. "To know how much someone actually has, they're going to have to bring it back to the detachment…because you can't eyeball 2.5 grams."

Pivot Legal Society and a coalition of activists and researchers had called on the federal government to increase those limits. "The thresholds proposed by Vancouver are far too low, failing to reflect the realities of current patterns of drug use," Pivot wrote in an open letter in 2021. The organization's recommendations were ignored. 

Pivot has geared up for decriminalization, arming drug users in Vancouver with cards detailing their rights.

Most people in this space — defense attorneys, drug users, harm reduction advocates — seem to agree that the tide is turning against criminalization writ large. 

After decriminalization

The opioid crisis, which has killed more than 33,000 Canadians since 2016, is primarily fuelled by a volatile unregulated drug supply. 

Potent synthetic opioids have flooded the drug market in North America, making it hard for users to know how strong their drugs truly are. Metering out doses can be incredibly difficult when the difference between life and death comes down to fractions of a gram.

To that end, the federal government has used 56(1) exemptions in the Act to allow several small programs and pilot projects to enable doctors to prescribe heroin, synthetic opioids, and other analogous drugs — a "safe supply."

But Ottawa has been conservative in how it grants those exemptions. It favours programs where users access drugs under a doctor's supervision. That has kept these programs limited to, at most, just a few thousand people across the country.

In theory, decriminalization can help scale up these programs: Users will be more inclined to seek help from a doctor if they are less worried about being arrested. Or, so the theory goes.

In practice, however, it's more complicated than that. For various reasons, many drug users would rather continue using the street supply instead of trying to source an analog through the healthcare system. So while decriminalization for them may be a welcome change, it has no real impact on where they source their drugs — the real factor driving those overdose deaths.

Some, frustrated with the slow pace of change in a crisis, have opted to sidestep the legal system altogether.

Dana Larson, a longtime opponent of drug decriminalization whose activism helped pave the way for cannabis legalization, opened a drug testing clinic inviting anyone with any quantity of drugs to get their supply tested for free at his pop-up shop. The Drug User Liberation Front has been handing out free cocaine and opiates on the street, after testing the drugs for potency and purity. There has also been a mounting movement to set up buyers' cooperatives and compassion clubs for hard drugs.

These efforts to flout the law have yet to draw a response from the police response.

"I suspect that if somebody were to set up a legitimate compassion club under this decriminalization regime, there wouldn't be that much enforcement — at least in Vancouver," she says. Other parts of the province may be more willing to apply those trafficking charges.

"I know there are people out here that are effectively daring the government to do it," Lee says. 

According to Stewart, decriminalization came about only after intense political maneuvering and public pressure. The federal government is unlikely to take the next big step unless it gets a push.

"The next battles are those big constitutional ones," Lee says. The time for fighting the narrow and specific applications of the law — "is this for the purposes of trafficking? Is this for personal use?" — "It's over," she says. "We have a government that has implicitly acknowledged the social science evidence of the harms that drug prohibition [causes] and how that contributes to an increase in deaths."

That battle has already begun. This summer, the Canadian Association of People who Use Drugs (CAPUD) and their counsel, Dustin Klaudt, filed a civil claim before the Supreme Court of British Columbia calling for a country-wide end to drug prohibition.

"Drug criminalization, and the vacuum of government regulation regarding the composition and potency of illicit drugs, has created the 'black market' illicit drug supply which has led to the Poisoningand the Overdose Epidemic," Klaudt argues in his filings.

Klaudt and CAPUD argue that "by failing to regulate the drug supply," Canada has deprived the plaintiffs and people who use drugs "of their rights to life, liberty, and security of the person, as well as their protected privacy interests."

There's reason to think this kind of legal campaign could be effective — if not in court, then in Parliament.

"The more the cannabis activists advanced these challenges, and the defense counsel got onboard in cooperating with them in bringing the right cases forward…the closer we got to where we are today, with legalization," Lee says.

It may have seemed impossible just a few years ago, but the opioid crisis has spurred a massive shift in policy, law, and attitude regarding illicit drugs. Decriminalization may be the most significant change yet, but it's unlikely to be the last.