Today, attention is on decriminalizing possession of “harder” substances, with an emphasis on compassion, care and support for people who use drugs.
Attitudes toward drug use are changing. Gone are the days of “Reefer Madness” of the 1930s and “dope fiend” references finding their way into politicians’ speeches in the 1950s and ‘60s. Cheech & Chong’s goofy 1970s stoner comedy is passé, and the politically-conservative “Just Say No” stance of the 1980s is obsolete. In the last 30 years cannabis went mainstream. The legalization of marijuana by Prime Minister Justin Trudeau in 2018 was not a watershed moment but part of a series of actions recognizing society’s changing position on drug use. Today, attention is on decriminalizing possession of “harder” substances, with an emphasis on compassion, care and support for people who use drugs.
According to Statistics Canada, in 2019:
21% of Canadians reported having used cannabis in the past 12 months … (and) about 4% of Canadians reported having used at least one illegal drug. Among these users, cocaine was the most commonly used drug (2%), accounting for approximately half (49%) of illegal drug use. Illegal drug use includes consumption of at least one of the following substances: cocaine, ecstasy, methamphetamine, hallucinogens, inhalants, heroin, and salvia [a hallucinogenic herb from southern Mexico].
The Canadian Centre on Substance Abuse and Addiction reported:
9.6% of Canadian adults who used opioid medications [such as codeine, fentanyl, morphine, oxycodone and diacetylmorphine] in 2018 reported some form of problematic use (e.g., taking in amounts greater than prescribed, tampering with the product before taking it or using to get high or improve mood).
Police-reported drug offence statistics for cannabis, heroin, ecstasy, methamphetamine, and cocaine dropped between 2019 and 2020. But Statistics Canada found that opioid-related offences increased 34% to 5,142 in 2020.
Decriminalization, legalization and a push for change
Historically, illegal substance use has been racialized, moralized, and used as a tool to exacerbate economic power dynamics. According to researchers Gillian Kolla and Carol Strike in “Practices of care among people who buy, use, and sell drugs in community settings”, the “popular perception of people who sell drugs is negative, with drug selling framed as predatory and morally reprehensible.” People who use drugs (PWUD) are often voiceless and powerless to find care and acceptance in society. Helping them survive includes initiatives focused on harm reduction and access to housing.
According to Sandra Ka Hon Chu, a lawyer and Director of Research and Advocacy at HIV Legal Network, decriminalization would remove criminal laws governing simple drug possession (possession for personal use). Legalization would involve developing a legal and regulatory framework governing the ways in which currently controlled substances are sold, bought, or possessed. And as with alcohol and cannabis, consumer protection measures would be in place.
Data show that illegal substance use leads to increased confrontations with police. A 2012 Canadian Drug Policy Coalition report said:
The “most prominent feature of Canada’s response to certain drugs over the last century has been a reliance on the criminal law, also called “prohibition.” This has occurred despite a resounding lack of evidence to show that the criminal law reduces the harms associated with drugs and despite growing evidence that the criminal law in fact increases those harms.”
A study the same year by Lianping Ti et al, entitled “Police confrontations among street-involved youth in a Canadian setting”, found that:
- 44% of their study sample “reported being stopped, searched, or detained by police without arrest in the last six months,”
- 19% reported confiscation of drug paraphernalia without arrest, and
- 17% “reported experiencing what they believed to be violence by police without arrest in the previous six months.”
In 2017, the Canadian Public Health Association (CPHA), in “Decriminalization of Personal Use of Psychoactive Substances”, called on federal, provincial and territorial cooperation to:
- decriminalize possession of small quantities of currently illegal psychoactive substances (IPS)
- offer summary conviction sentencing alternatives
- use legal provisions to decriminalize small-quantity sales of IPS by young offenders
- offer a broader range of treatment options
- further develop the existing harm reduction/health promotion infrastructure
- offer amnesty for those already convicted of small-quantity IPS possession
- provide “expanded evidence-informed harm reduction options” including access “to supervised consumption facilities and drug purity testing services”
Although the attitude toward illegal drug consumption as a moral failing or criminal act is shifting, harassment and intimidation continue. A healthcare professional who insisted on anonymity said that, in RAAM (Rapid Access to Addictions Medicine) clinics – places usually considered “safe havens” where PWUD can receive counselling, advice, medications and support – police officers will troll the area outside, waiting to issue arrest warrants to RAAM clients. That behaviour flies in the face of the move toward decriminalization. Law professor W.A. Bogart, in an article written for Policy Options, cites “recent, significant momentum toward decriminalization of drugs for personal use.” He continued that endorsements for reform have come from B.C. medical officer of health Bonnie Henry, the Canadian Association of Chiefs of Police, The Canadian Association of Social Workers, and former federal health minister Jane Philpott.
In December 2021, to find solutions to the opioid overdose crisis, the Toronto Board of Health voted to ask federal authorities to decriminalize possession of insignificant amounts of illegal drugs. Every day, 19 families lose a loved one to an opioid death (between January 2016 and June 2021, upwards of 24,500 deaths, more than heart attacks and car collisions). Despite this, some police chiefs are hesitant to endorse decriminalization of possession for personal use. For instance, in January 2022 on Twitter, the Alberta Association of Chiefs of Police said that provincial safeguards focusing on issues like consumption around minors, public consumption and vehicle operation must be in place before it would endorse decriminalization.
However, in an email interview, Jean-François Crépault, Senior Policy Analyst for the Centre for Addiction and Mental Health (CAMH), said, in general:
Canadian police seem to be in favour of decriminalization. The Vancouver Police Department has supported it for years, and the Canadian Association of Chiefs of Police released a report recommending it in 2020. I have a feeling that police (or others who aren’t convinced) might be less apprehensive about decriminalization if it comes with investment in the health and social services we’ve been talking about.
In June 2021, the Health Canada Expert Task Force on Substance Use provided recommendations on Canada’s substance use policy as part of a draft “Canadian Drugs and Substances Strategy”. Those recommendations include:
- legal regulation to reduce the scale of the illegal market and reduce access to toxic substances
- a safer supply (providing alternatives to the toxic illegal drug market)
- reducing stigma
- making “equity a core principle and equity, anti-racism and anti-colonialism a priority area”
- leadership at the national level, and
- “harm reduction as an effective, evidence-based, non-judgmental public health approach for individuals who use substances, integrated into a full continuum of health and social services including housing.”
A point of discussion is section 56 of the Controlled Drugs and Substances Act. It states that the “Minister (of Health) may, on any terms and conditions” exempt persons from prosecution under the law “if, in the opinion of the Minister, the exemption is necessary for a medical or scientific purpose or is otherwise in the public interest.”
In September 2021, in its “Statement on the decriminalization of substance use”, CAMH called on the federal government “to implement a system in which people do not face criminal penalties for using psychoactive substances.” Among CAMH’s recommendations:
- decriminalize all drugs nationwide
- develop personal possession thresholds carefully
- work with provinces to ramp up services for harm reduction and treatment
- replace the unregulated and toxic drug supply
- work to reduce criminalization through alternatives to incarceration
- invest in social determinants like a basic income guarantee, and
- ensure evaluation of decriminalization measures and involve people who use drugs in the development of drug policy reform measures.
Shifts in drug policy
According to CAMH’s Crépault, drug governance in the past saw major drug policy shifts and a patchwork approach:
For example, there were two major developments in 2003: a bill was introduced that would have decriminalized personal possession of cannabis, and the federal government began funding [Vancouver-based] Insite, the first supervised injection site in North America. Then just three years later, Canadians elected a government that introduced mandatory minimum sentences for drug offences and attempted to shut Insite down. Some areas of drug policy fall under provincial/territorial jurisdiction (for instance treatment, and to a lesser extent harm reduction). But public opinion does seem to be moving toward seeing substance use as something that, when it becomes problematic, should be addressed through the health system and not criminal justice.
In an email interview, Ka Hon Chu said:
I believe policymakers look to the public for a pulse on evolving norms, including towards drug use. The fact that various policies and bills have been introduced in recent years that acknowledge the harms of drug prohibition and how it contributes to stigma and negatively affects the health of people who use drugs is a signal of this shift and is reflected in some of the language policymakers employ in these policies and bills.
For example, Bill C-5 calls for addressing problematic substance abuse as a health and social issue. It was introduced to the House of Commons in December 2021 to amend the Criminal Code and the Controlled Drugs and Substances Act by, among other things, removing mandatory minimum sentences for drug offences.
The opioid crisis has been “quite pressing,” added Crépault. Furthermore:
I don’t know if people realize how much damage our drug laws do. More people have died of opioid overdoses since 2020 than of COVID-19. One thing I think citizens ought to know is that prohibition hasn’t deterred substance use and hasn’t helped people having problems with drugs … the threat of criminal penalties dissuades people who use drugs from seeking health services. Criminal records greatly impact people’s ability to travel or get work – and racialized people are also more likely to be targeted. The unpredictability and increasing toxicity and contamination of the opioid supply are also a function of criminalization.
Ka Hon Chu said increased compassion is a driving force behind change. She cited a case in B.C. where “the judge ordered a suspended sentence for a woman convicted of selling drugs, acknowledging that her own drug dependence was a significant factor in her decision to sell drugs, which lessened the ‘moral blameworthiness’ of the accused.”
While municipalities and provinces may call for exemptions, “it would be far preferable for the federal government to pass or amend legislation to decriminalize drugs across the whole country,” Crépault added. This would reduce some of the issue’s intensity at the local level, where it profoundly affects political positions.
“Historically, the ‘War on Drugs’ has been affiliated with being ‘tough on crime,’ so politicians who are confronted with the need to decriminalize drug possession are concerned with appearing ‘soft on crime’ and losing voters on this basis,” said Ka Hon Chu, adding that the legal profession has taken a stand on this issue. Groups like “the Criminal Lawyers’ Association and the Canadian Lawyers for International Human Rights (CLAIHR) and legal human rights organizations, such as the HIV Legal Network, Westcoast LEAF and the BC Civil Liberties Association, have spoken out in support of decriminalizing simple drug possession.”
What is needed immediately
The toxic drug supply is a major issue that is causing illness and death and replacing it is currently “the most urgent” issue, said Crépault. As for how to do that?
There are different models for accomplishing that, but the most important thing is to ensure that people who currently rely on toxic street drugs are able to access pharmaceutical-grade alternatives (often referred to as “safer supply”). Otherwise, decriminalization or not, people will continue to die from poisoned and contaminated drugs. We also need to make sure that we have the infrastructure and capacity to provide people with access or referrals to things like primary care, addictions and mental health care, and broader social services like housing.
According to Ka Hon Chu, there is hope:
We are closer than we have ever been to decriminalization, what with the Public Prosecution Service of Canada coming out with guidelines in 2020 limiting the circumstances in which people are charged for simple drug possession, public health officials across the country calling for decriminalization, police forces across the country also supporting some version of decriminalization, and policymakers introducing bills that would reduce the criminalization of people who use drugs. People need to understand that more than a century of criminalizing drugs has not decreased drug use but has had colossal impacts on the health, safety and well-being of people who use drugs – with Black and Indigenous people bearing the heaviest burden of these harms. Decriminalizing is one step that policymakers can take to rectify some of these harms.
It remains to be seen how Canada will respond to these concerns.
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The information in this article was correct at time of publishing. The law may have changed since then. The views expressed in this article are those of the author and do not necessarily reflect the views of LawNow or the Centre for Public Legal Education Alberta.
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