Canadian law students are reporting for JURIST on national and international developments in and affecting Canada. Mélanie Cantin is JURIST’s Chief Correspondent for Canada and a 2L at the University of Ottawa.
As of today, Tuesday January 31, 2023, it is no longer a criminal offence to possess under 2.5 grams of certain previously illicit substances in the province of British Columbia, Canada. This constitutes an exemption from the Controlled Drugs and Substances Act (CDSA), the main piece of federal legislation concerning “hard” drugs in Canada. The requested exemption has been granted for three years (until January 31, 2026) as part of a pilot project tackling widespread substance use, an ongoing issue in British Columbia.
Included in the now limitedly permitted substances are cocaine, MDMA, methamphetamine, and perhaps most controversially of all, opioids. This latter category includes heroin, morphine, and fentanyl. The exemption from the CDSA is further limited in various ways. For one, it only covers simple possession of the proscribed amount, and therefore does not cover the sale or trafficking of any quantity of these substances. Possession of any amount at airports, schools, and childcare facilities is not permitted. The exemption also only applies to adults, meaning that individuals between 12 and 17 years old remain subject to the Youth Criminal Justice Act. Finally, municipal bylaws regarding drug use in public remain in effect, meaning that even personal use of the above-named within the now-legal limit would have to occur largely on one’s private property, such as in their own home.
This move by the British Columbia and Canadian federal governments has been both lauded and criticized by various factions. From the perspective of Canadians who support continued criminalization, opioids, and particularly fentanyl, are such dangerous substances that they should be kept off the streets as much as possible. Those who possess these substances, they say, should be punished under the criminal law and the drugs seized by police so they cannot fall into anyone else’s hands.
The danger of fentanyl in particular is certainly not to be understated. Indeed, the drug has played a role in a significant number of overdoses and substance use-related deaths in Canada, especially since 2016. While fentanyl can be used on its own, as a nearly odourless and tasteless opioid, it can be combined with other illicit drugs in an effort to create an even greater dependency. This is often done without the eventual user even knowing when they are purchasing the drug. From January 2022 to June 2022, 76% of all accidental apparent opioid toxicity deaths in Canada involved fentanyl.
With a potency 100 times that of morphine and many of fentanyl’s alternative forms being even stronger—carfentanyl, for instance, has a potency 100 times that of regular fentanyl—it is indisputable that this drug and the colloquially known “opioid epidemic” are serious issues warranting the attention of our governments. However, is criminalization truly the answer?
A resounding “no” is the answer of those who support decriminalization. A growing body of evidence in recent years has demonstrated that the decriminalization of drugs for personal use is a crucial first step in reducing widespread substance use. Addiction must be legislated and treated as a matter of public health, rather than one of criminal law, if there is any hope of curbing its prevalence. Attaching to vulnerable people the further stigma of a criminal record to the already stigmatized behaviour of drug use has done little to address the root causes of addiction and substance use.
At first, it can be difficult to understand how eliminating this intangible stigma can impact substance use, but this is how the more practical and concrete advantages of decriminalization surface. The risk of ingesting laced or contaminated drugs leading to accidental overdoses (such as the aforementioned issue of other drugs being laced with fentanyl) is greatly reduced under a decriminalization model. If a person knows they cannot be arrested for merely possessing a small quantity of a given drug, they are more likely to reach out to community supports for things like fentanyl detection tests, clean syringes, and safe injection sites. This provides greater exposure to the necessary health resources to eventually leave substance use behind altogether in a climate that puts societal health above legal punishment.
A comparison of the two main societal approaches to substance may be helpful. Criminalization has been the favoured approach in much of the world for many years. However, global illegal opium production has increased by a whopping 950% since 1980 and the well-known American “war on drugs” (which, like many American happenings, has bled into Canadian policy too) has been declared a failure in many respects. From the billions of tax dollars spent to crack down on users, to the aggressive law enforcement tactics that have pushed drug cartels to resort to increasingly violent means of selling their product, to the millions of people (particularly Black, Latino and Indigenous folks) currently incarcerated for non-violent offences of simple possession, there is frankly very little about the “war on drugs” that has led to a marked reduction in substance use.
Conversely, countries in which substantial steps towards decriminalization have been taken have seen a reduction in their overall drug use. Portugal is a prime and well-known example of this. Following a report on the escalating drug problem among the Portuguese population, the government proceeded with sweeping decriminalization measures in 2001. The results have been successful. Overall consumption of narcotics and psychotropics decreased post-decriminalization and the rate of deaths caused by drug overdose in Portugal is now one of the lowest in the European Union. Further, drug use in young adults is “remarkably low” and the government has made significant economic savings by moving away from a prohibitive and punitive model of combatting drug use.
Thus, the pilot project in British Columbia is a step in the right direction for Canada, not because it takes an ideological stance on drugs, but because it follows the science and evidence in recognizing that the existence of drugs is not something that can be fully eradicated from society and that the focus must be redirected towards reducing harm for users. This is what actually leads to reductions in substance use.
Still, it is important to note that the CDSA exemption in British Columbia is not without its issues. For instance, its complete exclusion of youth is strange. The all-too-common issue of not reaching out for help to doctors or law enforcement in overdose scenarios for fear of reprisals seems even more likely to cause problems for young persons, who may also fear reprisals from their parents or guardians, or their school. If anything, including youth in the exemption would provide them with nonjudgmental access to public health resources (including treatment plans and mental health resources) at an earlier and more critical stage in their lives.
From drug users themselves, there are concerns that the exemption does not mirror the actual purchase and consumption habits of users, since many of them, especially those who live in remote areas where accessing certain drugs is harder, will typically make purchases in bulk or with a partner to save money. The threshold of 2.5 grams is also considered low by users and experts alike. It is worth mentioning that while British Columbia requested for the exemption to extend to 4.5 grams of possession, it is the federal government that had the final word in only granting the exemption for 2.5 grams.
As things unfold over the next three years, though, it will be interesting to see whether other provinces, or even Canada as a whole, will follow suit with similar exemptions to the CDSA.