Canada Moves to Decriminalize Possession of ‘Hard’ Drugs

By Grace Browne

Read the article on Wired

British Columbia’s three-year trial aims to address its opioid crisis. The legislation has been welcomed, but some think it’s still too conservative.

On Tuesday, May 31, the Canadian government made a ruling that was the first of its kind for the country. Starting on January 31, 2023, the province of British Columbia will conduct a trial—lasting three years—in which people over the age of 18 will be able to possess up to 2.5 grams of opioids, cocaine, methamphetamine, and MDMA without arrest, seizure, or charge. Canada joins a handful of countries with existing decriminalization policies; others include Portugal, the Czech Republic, the Netherlands, and the United States (Oregon decriminalized possessing small amounts of hard drugs back in 2020).

A decriminalized drug resides in a constitutional no-man’s land, neither legal nor illegal. The policy essentially entails that possession won’t result in handcuffs and that a substance use disorder won’t be treated as a crime. “This is long overdue,” says Daniel Werb, director of the Center on Drug Policy Evaluation at St. Michael’s Hospital in Toronto. “This is something that people have understood for a really long time—that you can’t arrest your way out of this problem.”

And a problem it is indeed. The war on drugs has waged on for half a century, and the writing’s on the wall: It’s clearly not working. “The record is clear that the global war on drugs has been a total catastrophic policy failure,” says Ben Perrin, a law professor at the University of British Columbia and author of Overdose: Heartbreak and Hope in Canada’s Opioid Crisis. Criminalizing drug use disproportionately targets the marginalized, including Black and Indigenous communities, the unhoused, and people with mental illness. And the stigma stemming from criminalization means that people are less likely to seek help, and more likely to use drugs alone, which contributes to higher rates of overdose.

But advocates of drug policy reform say decriminalization—or “decrim”—is just the first in a long list of major overhauls needed to address Canada’s catastrophic opioid epidemic. While a laudable policy move, the decision is but a bandage on this gaping wound, which only worsened throughout the pandemic. British Columbia is the epicenter of the crisis in Canada and has one of the highest rates of drug-related deaths in North America. The province’s opioid epidemic was declared a public health emergency in April 2016, and since then more than 9,400 people have died from overdoses.

Decrim advocates staunchly argue that bringing law enforcement into the equation has done nothing to lower that number. Plus, Canadian research shows that people who are incarcerated—whether for drug-related reasons or not—are at a substantial risk of overdosing upon release; one study found that in the two weeks after someone left prison, their risk of overdosing was more than 50 times higher than in the general population. Another found that one in 10 overdose deaths are in people who left prison in the last year. “In other words, jails are like a death sentence for many people with substance use disorders,” says Perrin.

Criminalization exacerbates a vicious cycle of poverty, stigma, discrimination, unemployment, and recidivism, all of which makes it harder to then stabilize substance use, says Adeeba Kamarulzaman, president of the International AIDS Society. (Kofi Annan, former secretary-general of the United Nations, once said, “A criminal record for a young person for a minor drug offense can be a far greater threat to their well-being than occasional drug use.”)

Kamarulzaman advocates for decriminalization, combined with clean needle and syringe programs, as a way of reducing the spread of infectious diseases such as HIV—about 30 percent of new HIV cases outside of epidemics in sub-Saharan Africa are in people who inject drugs. Rates of HIV dropped dramatically in Portugal when it adopted its decrim policy in 2001. Decriminalization would also likely lower the higher rates of disease spread (especially HIV and tuberculosis, and now Covid-19) tied to incarceration. “From just that point of view alone, keeping people away from prison who shouldn’t be put there in the first place would have enormous benefits to the public,” says Kamarulzaman.

Portugal is often held up as the poster child for decriminalizing drugs. A common fear is that such policies lead to increased use, but this didn’t play out in the country’s stats. Drug use went down, drug-related deaths dropped, and the number of people getting treatment for substance use disorders increased. (One factor that muddies the data is that when it adopted the policy, Portugal also invested in other arms of social welfare, including a guaranteed minimum income, which likely also had an influence.)

And decriminalization has support from the top. In 2018, the United Nations Chief Executives Board, which represents 31 UN agencies, sent out a clear, unwavering, unanimous statement: Decriminalization is the way.

But Canada’s trial, while deemed a step in the right direction, is imperfect, say drug policy experts. For one, it only applies to people over the age of 18, which ignores the reality that many people’s substance use disorders begin before that age. Plus, a major portion of the drug supply in Canada is adulterated with benzodiazepines, a drug class not on the allowed list, which means that police can still arrest people who may not know that their supply has been mixed. And finally, and perhaps most disappointingly, there’s that threshold: 2.5 grams.

Most experts say this is simply not high enough to make any meaningful difference. “I really take the lead from the real experts on this,” says Perrin, “which are the people who use drugs.” And members of this group have repeatedly stated that a person who has used substances long-term typically have more than 2.5 grams for their own use. When British Columbia submitted the decriminalization request to Health Canada at the end of last year, a threshold of 4.5 grams was requested—and that was already considered to be too low by the same groups. It later transpired that the final 2.5 gram threshold was based on input from the police. “If your point is to de-penalize this policy space, why are you inviting police to take the wheel? It doesn’t make any sense,” says Werb.

The lower threshold simply doesn’t reflect how people actually use drugs—one size does not fit all. Increased drug tolerance in people who have used for a significant period of time, shared purchasing between multiple people for affordability, and the short-lasting nature of fentanyl—a synthetic opioid that is up to 50 times more potent than the heroin often found in the illicit drug market—all mean that people often carry more than 2.5 grams.

The biggest concern is that, if not done in the right way, the policy change could have dangerous unintended consequences. The best-case scenario, Perrin says, is that people continue to be criminalized for carrying over the allowed amount. But the worst-case scenario is it creates an incentive for drugs to be made more potent, thus worsening the opioid crisis.

The threshold also means that it disproportionately targets people who require a higher amount of a substance to sustain their use. “You can build policies, and they can be really progressive policies. But if you don’t build them in the right way, you can actually increase the level of inequity across society,” says Werb. “What you’ve effectively created is a policy that protects people who are less marginalized from having their lives disrupted by police, while the most marginalized people are still having their lives disrupted.”

And it does little to address the root issue behind British Columbia’s opioid crisis: an unsafe supply of drugs on the illegal market. “Decrim is not going to change the potency or the adulteration of the unregulated drug supply,” Werb says. “What needs to happen if we’re really going to get overdose deaths under control is to intervene on what’s killing people, which is the market itself.” It’s the bare minimum of policy change, he says, and it needs to be combined with wider access to safe injection rooms and drug checking.

In British Columbia, fentanyl was found to be present in almost 90 percent of opioid samples analyzed by drug-checking services. Beyond decriminalizing possession, much more effort should be made to give people access to safer drugs. “Decrim is a human rights necessity,” says Jordan Westfall, cofounder of the Canadian Association for Safe Supply, “but I think safe supply is a living necessity.”

Despite its shortcomings, the fact that the policy is being rolled out as a trial is a positive thing, reckons Michel Kazatchkine, a member of the Global Commission on Drug Policy. The strongest way to convince naysayers is through providing cold, hard, irrefutable evidence, he says, and the best way to do that is via something that resembles a scientific study. “What we need is more and more evidence and not decisions made on ideology or whatever perception of the problem a government may have,” he says. “The overall way towards reforms in this so-sensitive area of drug policy will be accumulated evidence from real-life experiments and trials.”

Werb, though, is more cynical about how successful the policy will be. “I’m optimistic that it will reduce some harm,” he says. “But I’m pessimistic about it meaningfully doing anything about the overdose epidemic.”