B.C. should decriminalize drug possession to reduce fentanyl deaths—province's top doctor outlines a plan

A major report by the provincial health officer recommends B.C. bypass Ottawa and drop criminal penalties for people caught with drugs

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      B.C.’s top health official has issued a strongly worded report that could set the province on a radical new path for how it responds to drug use and addiction.

      “This PHO [provincial health officer] Special Report examines the criminalization of people who use drugs in B.C., Canada, and beyond, and based on existing evidence, offers a single recommendation: decriminalization of people who use drugs,” it reads.

      The document was drafted by Dr. Bonnie Henry, a senior government official who’s tasked with improving the overall health of the province.

      It recommends that B.C. remove criminal penalties for the personal possession of illicit narcotics, including hard drugs like cocaine, heroin, and fentanyl.

      That would mean someone caught with a small amount of drugs would not go to jail or be subject to lesser criminal penalties such as probation. Anyone found with a large amount of drugs—enough to suggest they are involved in drug trafficking—would remain subject to criminal proceedings.

      The report does not recommend that B.C. legalize hard drugs, which would go one step further than decriminalization, bringing supply under the control of government regulators.

      “There is widespread global recognition that the failed ‘war on drugs’ and the resulting criminalization and stigmatization of people who use drugs has not reduced drug use but instead has increased health harms,” the document reads. “Engagement with the criminal justice system exposes non-violent, otherwise law-abiding people to a great deal of harms that they would otherwise not experience.

      “The societal stigma associated with drug use leads many to use drugs alone and hidden, increasing their risk of dying,” it adds.

      The report centres its proposals firmly in the context of B.C.’s ongoing overdose epidemic.

      “Despite continuous efforts in B.C. to resolve the overdose crisis, and the declaration of a public health emergency, there has been minimal success in stopping the rising death toll since the crisis started, and additional alternative solutions are warranted immediately,” it reads.

      “Overdose deaths in the province have become so pervasive that there has been a measured decrease in life expectancy at birth for all British Columbians.”

      There were 1,510 fatal overdoses in B.C. in 2018, according to the B.C. Coroners Service. That compares to 991 deaths in 2016 and 368 in 2014. The synthetic-opioid fentanyl was associated with 87 percent of 2018 deaths, up from 15 percent five years earlier.

      Reducing stigma

      Laws that criminalize drugs encourage people to hide their drug use, which discourages and inhibits access to health-care services, Henry explains in the report.

      “Prohibition-based drug policies have not only failed to reduce supply or demand for illegal drugs, they have impeded public health initiatives to reduce harms related to substance use,” it reads. “Some people in possession of illegal drugs will not seek out supervised consumption, overdose prevention, or treatment services for fear of being arrested; instead, they will use drugs alone, increasing their risk of dying from a potential overdose. In the context of the toxic street drug supply in B.C., this is being witnessed with alarming frequency.”

      The report suggests that eliminating criminal penalties will reduce stigma associated with an addiction to drugs.

      “Stigma and stigmatizing language affect people who use substances, people who are receiving treatment for a substance use disorder, and the families and friends of these people,” it reads. “The resulting feelings of shame and isolation cause people to hide their substance use, to use alone, and to be less likely to seek out help or treatment, to start a conversation about substance use, and/or to attend harm reduction services such as overdose prevention or supervised consumption services.”

      Decriminalization would reduce stigma, which would promote interactions with the addictions-treatment system and harm reduction programs, the report concludes.

      “With respect to health, such changes would aim to improve access to harm reduction and health services by limiting the fear and stigma that people who use drugs face in seeking out drug-related supports,” it states. “This is an important additional step to stem the tide of unprecedented deaths.”

      How it could happen

      Henry’s report acknowledges that in Canada, prohibition is a federal issue, and Ottawa has said it will not decriminalize drugs. However, “the province cannot wait for action at the federal level,” the report states. “Immediate provincial action is warranted.”

      How can B.C. decriminalize drugs when the Controlled Drugs and Substances Act is a federal legislation? B.C.’s provincial health officer suggests two ways it can happen.

      “The first option is to use provincial legislation (specifically, the Police Act) that allows the Minister of Public Safety and Solicitor General to set broad provincial priorities with respect to people who use drugs,” Henry suggests. “This type of approach would provide pathways for police to link people to health and social services, and would support the use of administrative penalties rather than criminal charges for simple possession.”

      Dr. Bonnie Henry was appointed the B.C. provincial health officer in January 2018 after holding the position of deputy since August 2014.

      There’s a precedent for this sort of action in B.C. Nearly a decade ago, the Vancouver Police Department (VPD) began to state publicly that simple cannabis possession was no longer a “policing priority”. In 2015, the city of Vancouver even went so far as to begin formally regulating storefront cannabis sales, years before recreational cannabis was legalized at the federal level in 2018.

      Henry’s first suggestion is simply to implement a more formal, provincewide order for police to deprioritize anyone caught with a small amount of drugs.

      “The second option,” the report continues, “is to develop a new regulation under the Police Act to include a provision that prevents any member of a police force in B.C. from expending resources on the enforcement of simple possession offences.”

      Again, it’s essentially a formalized version of what Vancouver did with cannabis beginning in the early 2010s.

      Henry’s report is also not the first time a senior decision-maker has suggested decriminalizing hard drugs.

      In March 2018, the City of Vancouver officially recommended that Canada “immediately” decriminalize personal possession. “Decriminalizing possession, combined with health care supports including prevention, harm reduction, and treatment, will save many lives,” then-mayor Gregor Robertson said.

      Several B.C. health officials and some B.C. politiciansToronto's medical officer of health, and the public-health director of Montreal, have also made similar statements in support of decriminalization.

      Details remain

      To be sure, the provincial health officer’s proposals leave a lot to be worked out down the road.

      The report does not state the maximum amount of each drug a person should be allowed to carry before personal possession becomes intent to distribute (which would still constitute a criminal offence).

      It also does not say what, if any, the civil penalties should be for someone found in personal possession of hard drug.

      This allows room for the plan to backfire.

      For example, B.C. could decide that anyone found in possession of a small amount of cocaine or fentanyl should receive a ticket for $400. It’s likely police would use a monetary option like that to quickly leave many marginalized people with thousands of dollars in fines they will never be able to pay.

      In addition, the replacement of criminal penalties with a fine-based system would largely fail to address the issues of stigma raised in the report, since there would still be penalties associated with drugs that would continue to encourage people to hide their drug use.

      Travis Lupick / B.C. Coroners Service

      The report suggests Henry thought of such risks. It discusses how decriminalization would create opportunities for engagement with the health-care system.

      “I advise the Minister of Health and the Minister of Mental Health and Addictions to engage with the Attorney General and the Minister of Public Safety and Solicitor General to determine how B.C. can move to decriminalize people in possession of illegal drugs for personal use, using the discretionary powers vested in public safety officials and the policy role of the Director of Police Services,” Henry writes.

      “Given that the current regulatory regime is ineffective, harmful, and stigmatizing, and in the absence of federal interest in moving away from criminalizing simple possession of controlled drugs, and as the overdose crisis continues, it is incumbent on the province of B.C. to act.”

      Henry has scheduled a news conference for 10 a.m. this morning (April 24) where she will discuss the report. Canada’s health minister, Ginette Petitpas Taylor, is in Vancouver today on other issues and is scheduled to meet with the media at 11 a.m.