No time to waste: Advocates warn red tape may slow decriminalization process

After last year’s record-breaking death toll in B.C., Vancouver is leading a growing push to end criminal penalties for simple possession
Photo: Jeff Anderson
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There is no time to waste in decriminalizing simple possession, say advocates for people who use drugs.

The overdose crisis in Canada reached staggering new heights last year, with the pandemic hindering support services and contributing to an increasingly toxic drug supply through border closures and disrupted domestic production. As the push for decriminalization grows, advocates are warning against the potential bureaucratic hurdles that could hinder the momentum.

Long this public health emergency’s epicentre, B.C. experienced the deadliest year in the province’s history in 2020, with at least 1,716 deaths — an average of around five people dying per day from overdoses.

Last November, the City of Vancouver unanimously voted to ask the federal government for an exemption under section 56 of the Controlled Drugs and Substances Act. This would decriminalize simple possession, which means removing criminal penalties for possessing small amounts of illicit drugs for personal use.

At the provincial level, B.C. reached out to Ottawa earlier this month to see if it would be “willing to consider” a similar exemption and explore “what a future public engagement process could look like.”

Cole Davidson, spokesperson for the federal minister of health, told Ricochet that Health Canada is working with B.C., Vancouver and Vancouver Coastal Health “to work through the details of these requests, and identify options that will respond to local and provincial needs.” Health Canada has already agreed to formal discussions with the City of Vancouver.

For Richard Elliott, executive director of the HIV Legal Network, these developments represent a “real groundswell for change.” His organization, the Canadian Drug Policy Coalition and Pivot Legal Society sent an open letter to federal Health Minister Patty Hajdu outlining their concerns about the impact of potential red tape.

“We would have much preferred the response from the minister be, ‘Here you go, here’s your exemption,’” Elliott said.

“But in the interim, let’s make sure that the precedent [Ottawa] set by responding to Vancouver’s request is not a bad precedent by basically tying it up in all sorts of delays and red tape of unreasonable restrictions and conditions.”

‘Unnecessary and unreasonable’

The open letter lists seven potential requirements for the exemption-granting process that the organizations consider “unnecessary and unreasonable.” For instance, they argue against having “undue” consultation requirements because the municipal or provincial government would have already done this legwork before requesting an exemption.

These concerns stem partly from the barriers that advocates saw in the fight for supervised consumption sites, which require the same federal exemption to set up.

The letter also cautions against having diversion requirements similar to Portugal’s model, which requires individuals who are found with illicit drugs to appear in front of a drug dissuasion committee. Elliott said while that model is important in showing “how the sky doesn’t fall when you decriminalize,” it has received criticism for perpetuating punitive and coercive responses to drug use.

“Obviously, we want better access to drug dependence treatment and harm reduction measures because we want to reduce those harms,” he said.

“But to compel everyone who was found in possession of a substance to appear in front of a dissuasion commission or go to a counselling session when there’s no clinical need for that is not only a waste of resources, it’s also an overextension of the state’s power. Even if it’s less serious than putting people in prison and saddling them with a criminal record, it is still the state restricting your liberty.”

The perfect model, says Elliott, is one that removes the prohibition on simple possession — full stop.

‘Hand in hand’

Ultimately, the organizations behind the letter reiterated their long-standing call for a “nation-wide, blanket exemption.”

They’re not the only ones making this demand.

Last July, the Canadian Association of Chiefs of Police called on the federal government to decriminalize simple possession. Around the same time, B.C. Premier John Horgan urged Prime Minister Justin Trudeau to develop a national plan, after the provincial government rejected a 2019 decriminalization proposal by provincial health officer Dr. Bonnie Henry. Public Safety Minister Mike Farnworth said at the time that controlled substances are under federal jurisdiction.

At their 2018 convention, federal Liberal party members also voted to make decriminalizing simple possession a policy priority.

But the federal government has declined to pursue decriminalization at the national level.

Caitlin Shane, a lawyer with Pivot Legal Society, now hopes that growing support for decriminalization from jurisdictions across Canada will encourage Ottawa to shift away from the current piecemeal approach.

So far, various cities have expressed support for decriminalization, but none have made a formal request like Vancouver.

“If enough municipalities and provinces do apply, it will become apparent that the most effective approach would be to simply grant the proactive exemption,” she said.

The federal government has also touted a focus on safe supply over decriminalization in the past. But Shane noted that the program’s rollout has been “relatively fraught.” In particular, people who use drugs are still facing accessibility problems because of capacity and physicians’ reluctance to prescribe safe supply.

She added that stigma remains a big factor, which is why safe supply and decriminalization need to go “hand in hand.”

“The move to decriminalize is partly premised on the idea that when you remove stigma from drug possession, you encourage access without fear to existing programming,” Shane said. “So these are two policies that reinforce one another and work really well together.”

Elliott agreed. “It's hard to envision something that is more clearly stigmatizing than labelling an entire group of people criminals.”

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