Drug decriminalization is a ‘no-brainer’ during COVID-19, say advocates

Suspected overdose deaths have spiked due to increased isolation and COVID-related disruptions of support services
Photo: Province of BC
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Since the early days of physical distancing, drug users and frontline workers have sounded the alarm on the twin public health emergencies of COVID-19 and a toxic drug supply. Now, with major viral outbreaks in correctional facilities, many are reemphasizing that drug decriminalization is a strategic health decision.

“Prisons are already depopulating and releasing people who are considered not a threat to public safety,” said Sandra Ka Hon Chu, director of research and advocacy at the Canadian HIV/AIDS Legal Network.

“Decriminalization should be a no-brainer.”

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On a broader scale, Canada is seeing spikes in suspected overdose deaths due to increased isolation and disrupted support services. The BC Coroners Service reported 112 suspected overdose deaths in March and 117 in April, breaking the hundred-death threshold for two months in a row for the first time since November and December 2018. Vancouver and Toronto noted around 30 and 19 suspected overdose deaths in March of this year, respectively, reversing declines that were seen last year.

“We still have more people dying from fentanyl overdoses than we do from COVID,” said Samona Marsh, president of the Vancouver Area Network of Drug Users (VANDU), referring to their total death tolls.

“I’ve never lost so many people as I have in the last four years.”

DEATH TOLL IN CANADA 14,700+: the number of opioid-related deaths from January 2016 to September 2019. 6,765: the number of deaths related to COVID-19 as of May 27, 2020. Source: Government of Canada.

In response, advocacy groups are calling for the decriminalization of simple possession, which means removing criminal penalties against drug possession for personal use.

A recent open letter to several federal ministers, spearheaded by the Canadian HIV/AIDS Legal Network, the Canadian Drug Policy Coalition and Pivot Legal Society, asks for an exemption from the criminal charges on simple possession outlined in the Controlled Drugs and Substances Act.

It argues that amid reduced services, the fear and stigma around criminalization can deter people from accessing support, increasing risks of overdose and HIV and hepatitis C infection.

“What is the most stigmatizing thing you could do to somebody? It’s probably arresting them,” said Scott Bernstein, director of policy for the Canadian Drug Policy Coalition. “It’s really counterproductive — it stands in the way of people wanting to access treatment and health care.”

Chu also explained that simple possession charges can result in jail time. With COVID-19, this can put people who use drugs in an even more precarious situation.

“Any kind of detention setting is a risk,” she said.

‘Years and years’

The push for drug decriminalization is longstanding.

“It's something that people who use drugs have been calling for [for] years and years,” said Caitlin Shane, a staff lawyer at Pivot Legal Society. “It’s beyond clear that drug prohibition has been an epic failure.”

Marsh, whose organization also signed onto the letter, agrees.

“I’m fighting for that because just think of how much money they spend on drug charges,” she said. “I think they should just decriminalize it all like in Portugal.”

The Iberian country decriminalized possession of all drugs for personal use in 2001. While the substances are still illegal, users don’t receive criminal penalties. Instead, they would get an order to see a drug dissuasion committee to assess whether treatment is needed.

Municipal health agencies like the Winnipeg Regional Health Authorities, Toronto Board of Health and Montreal Public Health have also endorsed decriminalization in recent years.

“The opioid crisis is one of the most significant public health issues in Canada’s recent history. It’s a medical issue, not a moral one”

In 2019, B.C.’s chief health officer, Dr. Bonnie Henry, called on the province to de facto decriminalize simple possession. This followed a report from her office on the history and impact of drug laws in the country, which notes the disproportionate harm imposed on Indigenous people. Black people in Canada have also been found to be overrepresented in possession arrests.

Decriminalization is also increasingly common.

As of 2016, around 30 countries and jurisdictions have decriminalized to varying degrees. Multiple international bodies, including the World Health Organization and various agencies of the United Nations, have also recommended the measure.

“There’s political coverage to do this, like it won’t be such a radical move and it’s the right thing to do, so I hope the government will take the chance to do this,” said Chu.

Yet the federal government looks unlikely to decriminalize simple possession anytime soon.

In a statement to Ricochet, a spokesperson for the Ministry of Health, Cole Davidson, acknowledged the importance of the overdose crisis during COVID-19. But he reiterated the ministry’s focus on harm reduction — including exemptions allowed in March to ease access to opioid antagonist treatment during physical distancing — over decriminalization.

This continues the approach that Prime Minister Justin Trudeau and Minister of Health Patty Hajdu took prior to the pandemic, despite Liberal party members voting in favour of decriminalization as a policy at their 2018 convention.

“The opioid crisis is one of the most significant public health issues in Canada’s recent history. It’s a medical issue, not a moral one,” Davidson said.

“Rather than decriminalization, we’re focused on a safe supply to ensure quality control.”

‘Same fears are made worse’

As Dr. Henry noted in her report, it is possible for provinces to start de facto decriminalization before a broad change in federal policy.

At the municipal level, some local police forces like the Vancouver Police Department (VPD) and the Toronto Police Service have started placing more emphasis on harm reduction, even as enforcement remains their primary role. The VPD also reported a decline in drug offences logged in recent years.

“For the most part VPD officers do not charge for simple possession, and possession charges are usually incidental to an arrest for another substantive criminal offence,” Sergeant Aaron Roed, VPD media relations officer, said in a statement to Ricochet.

But both Shane and Marsh noted that on the ground, many officers are still confiscating drugs from people without arresting or charging them for simple possession. They said this practice leaves people who use drugs in a dangerous situation, because they now have to find more drugs and may get them from unfamiliar sources during a poisoned drug supply crisis.

“I always say it’s when we don't have our drugs is when they see us,” Marsh said. “When we have our drugs, we’re fine.”

When asked about this situation, Roed responded that it’s difficult to comment without knowledge of specific incidents.

“We have a robust health system, we have treatment, we have harm reduction services. What would a Canadian model of decriminalization look like?”

During the pandemic, advocates also warn about the potential harm caused by the additional layer of policing that comes with physical distancing enforcement.

The Policing the Pandemic mapping project — which tracks charges for alleged COVID-related violations in Canada — indicates that enforcement actions have mostly occurred in Montreal and Toronto.

It’s unclear how these cities are approaching simple possession charges alongside physical distancing enforcement. But as many people who use drugs have interconnected challenges around poverty and mental health, Shane noted that increased policing to enforce physical distancing can exacerbate pre-existing fear.

The Montreal Police Service declined to comment for this story. The Toronto Police Service acknowledged Ricochet’s request but did not provide a comment by press time.

“People are navigating complex new realities,” Shane said. “So all of the same kind of harms that we know arise out of policing and all of the same fears are made worse [during] COVID.”

‘Uncharted territory’

At the same time, new support strategies still have gaps that need to be worked out.

Following federal exemptions that allow for extended and virtual prescriptions, B.C. introduced safe supply guidelines in late March that increase access to regulated alternatives for a wide range of substances. Since then, there have been mixed reactions about the alternatives, according to VANDU board member Laura Shaver, who is enrolled in the safe supply program.

“For a lot of people, they are extremely happy. But a lot of people are not — the fentanyl is so strong that it is extremely hard to have a proper titration of the dilaudid [a replacement] to make the equation the same,” she said, also calling it “uncharted territory” for herself and her doctor.

There has also been a reported lag in the rollout due to the “reluctance” of individual physicians to prescribe, something that Shaver has observed.

As a result, advocates say the push for drug decriminalization must continue.

Acknowledging that it is unlikely for the government to “see the light” from the open letter alone, Bernstein hopes this effort could start a conversation around a Canadian model.

“We’ve often heard the example of Portugal, which decriminalized a long time ago, and the sky didn’t fall,” he said. “We have a robust health system, we have treatment, we have harm reduction services. What would a Canadian model of decriminalization look like? Let’s get some answers to that.”

Meanwhile, Liberal MP for Beaches-East York Nathaniel Erskine-Smith introduced two decriminalization-related bills shortly before the establishment of physical distancing measures.

Erskine-Smith said he introduced Bill C-235, which seeks to decriminalize simple possession, to make his support for decriminalization clear. But he is only moving forward with Bill C-236 — which creates a framework that prioritizes referring people to healthcare services before proceeding with criminal charges — because he believes it is more likely to become law and “have a real practical effect.”

He hopes the discussions can resume sometimes in the fall.

Regardless of the methods, drug users, frontline workers and advocates all agree about the need for policy change. And Marsh understands its impacts more than most.

“How many people have died from [overdoses] and are still dying lately — it’s crazy,” she said.

In a small, paper-filled office at VANDU, Marsh gestured at a wall lined with coloured t-shirts saying “We are the survivors” and “All of us or none.” Underneath them are overlapping posters and paintings, but taking up the most spaces are photos memorializing those who have passed away.

“This right here, that’s my dad,” Marsh said, pointing at a photo of a man on a blue poster. His name was John Orvis, and he died of a fentanyl overdose.

“Too many people [are] gone. ... We’re used to death. But now there are so many people [who] have passed away that you can’t even remember all their names.”

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