Commentary: BC's upcoming illicit drug exemption is not decriminalization

The planned policy will not reduce the harms caused by criminalizing drug users.

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      By Lexi Fisher and Tyson Singh Kelsall

      British Columbia’s federally granted exemption to the Controlled Drugs and Substances Act (CDSA) for some drugs, including opioids and methamphetamine, is set to roll out tomorrow until its expiration in January 2026. The government calls it “decriminalization.” 

      There will be a legal limit of a cumulative total of 2.5 grams for certain drugs. The exemption has disclaimers, and excludes substances such as ketamine and benzodiazepines. Benzodiazepine analogues are now commonplace in the street supply of opioids across several communities, creating complications about what a substance should be labelled.

      Police will play a prominent role under the exemption. Officers will have to accurately identify and measure substances. If the amount is under the threshold, cops are expected to offer a resource card for health and social services, ensuring police are involved with drug users regardless of how much they possess. 

      Police will not be measuring drugs with a device, but have been trained to recognize what 2.5 grams looks like, says Chief Mike Serr of the Abbotsford Police Department and co-chair of the Canadian Association of Chiefs of Police drug advisory committee. He said he was not aware of any police agency issuing scales to officers due to practicality and safety concerns.

      Serr adds, “You can’t be doing it in an open-air setting where wind and other things …can potentially cause [fentanyl and other toxic substances] to be blowing into the air and impact people in [the] surrounding area.” He also expressed his view that a police car is not an ideal spot to open packaged drugs. To be clear: incidental contact with fentanyl does not cause adverse effects. 

      To the left is ketamine, which will remain criminalized. On the right is MDMA which will now be decriminalized.
      Tyson Singh Kelsall

      The threshold dismisses recommendations from people who use drugs and drug policy experts. Detailed evaluation of the model suggests that a 15-gram limit is evidence-based; the BC Health Coalition endorses an 18-gram threshold. Serr says police offered a lower threshold of one gram, but will support the 2.5 gram limit.

      Effective decriminalization policy must be determined by people who use drugs—anything else will result in incremental, expensive policy changes that only demand more police presence and intervention and result in further harm.

      Currently, Vancouver has no thresholds. Since 2006, the Vancouver Police Department policy directs individual officers to use discretion in cases of possession. This VPD policy, along with a federal prosecution directive that discourages criminal charges at the court level, has led to fewer possession charges.

      But VPD statistics from 2019 show that officers continue to seize small amounts of drugs, even though it rarely leads to charges. These seizures, coupled with regular street sweeps in which people’s belongings are confiscated without proper documentation, are part of the ongoing harassment of drug users by the VPD. The policy changes could make the VPD more active in the lives of Vancouver drug users, as the department will have a formal role when someone possesses less than 2.5 grams. 

      Rural, remote, and Indigenous communities have concerns

      The exemption is provincewide and will impact communities differently. 

      Charlene Burmeister, founder and executive director of the Coalition of Substance Users of the North, says people often have to travel great distances to purchase drugs. Workers living in worksites often require a large enough supply to share in community settings. (Sharing will remain a criminalized activity.) Skilled trades and transportation workers have made up approximately 20 per cent of provincial overdose deaths since 2017. 

      The model could incentivize more frequent, smaller purchases, which would put people at greater risk for police interaction in a context with much less anonymity than urban areas, Burmeister says. She emphasizes she would never advocate to repeal policy that decriminalizes possession, but that the policy should be repaired to meet the needs of those impacted; she would endorse a minimum one-ounce threshold as an immediate fix.

      Amber Streukens, a member of the Rural Empowered Drug User Network, shares similar concerns. “This threshold fails to meet the patterns of consumption or address the complex barriers faced by folks outside urban centers,” she says. “It fails to meet [the] needs of those most impacted by prohibition … and risks making this version of decrim inequitable and potentially ineffective.” Kootenay Insurrection for Safe Supply told us it is also against the current thresholds. 

      The province champions its application for decriminalization in its action plan for implementing the Declaration on the Rights of Indigenous Peoples.

      Yet, the BC First Nations Justice Council has highlighted that the thresholds are too low and the Union of British Columbia Indian Chiefs called for modified thresholds to respect prior consultation. The BC Association of Aboriginal Friendship Centres and the Indigenous Harm Reduction Network were among many groups that signed a letter citing lack of evidence for the thresholds in their current form.

      Alexis Hekker, a Métis artist and drug checking technician who worked as a Indigenous wellness coordinator in the Kootenays until recently, stated those working in harm reduction were elated when decrim was announced, but then let out a “collective eye-roll” when they realized the threshold.

      She said people from on-reserve or surrounding smaller communities tend to purchase “three to four times” the threshold if hoping to sustain themselves for a few days. 

      Hekker worries that those travelling on and off reserve, especially Indigenous women, will be targets for police and members of the community who continue to hold deep, stigmatizing beliefs about drug users. Cops are known to consistently linger at the intersection leading directly to the reserve, and members of the Facebook group Crime Watch Cranbrook have previously posted images of harm reduction workers to shame them for their association to people who use drugs.

      Lack of public transit compounds these concerns for people living in the rural areas, she says, especially in the dark and cold depths of winter.

      Hekker believes the 2.5-gram threshold will not address the broader issue of systemic racism within policing, and wishes that the needs of “all communities,” including those “outside of Vancouver’s Downtown Eastside” were addressed.

      Police influence in drug policy

      This model appears to expand police jurisdiction beyond law enforcement and into health care, rather than reducing interactions between drug users and armed agents tied to the criminal justice system. Serr argues that there has been de facto decrim in many parts of the province since 2020, and does not foresee massive changes to police practice.

      BC’s initial prohibition policies were implemented with the Indian Act of 1876 to include all substances, such as alcohol and opium, and then successively expanded beyond Indigenous populations during racist, anti-Chinese moral panics in the early 1900s.  And Canada’s first police forces were created to entrench colonial borders, enable land theft from Indigenous communities, and enforce the genocide of the Indigenous peoples on the land.

      Anti-Indigenous violence and other forms of racism are interwoven into harmful drug policy and policing practices. VPD’s street-check statistics showed clear racial disparities in 2019, before the practice was prohibited in 2020. Indigenous people are disproportionately sentenced and incarcerated throughout the province. 

      Meanwhile, First Nations people continue to be overrepresented in overdose deaths provincially. 

      And according to a Fraser Health report, the poisoned drug supply also disproportionately killed South Asian people. From 2015 to 2018 the region, which includes Surrey and the Fraser Valley, saw a 255% increase in toxic drug deaths among South Asian people. 

      These ongoing issues of systemic racism and colonialism, which are deeply rooted in policing and drug law, will only continue unless directly addressed.

      And as part of granting the exemption, Health Canada required BC to implement “alternative measures,” which ensures law enforcement involvement in any cases of possession. BC’s Ministry of Mental Health and Addictions (MMHA) confirmed over email that even people carrying less than 2.5 grams will be subject to police interaction by being offered a “resource card,” that will “have information about local health and social supports.” 

      BC has cited adherence to these alternative measures as Canada’s obligation to international drug law conventions. But Caitlin Shane, a lawyer for Pivot Legal who was part of the province’s core planning table, says “It’s been our position that these conventions don’t actually prohibit decrim or legalization, and that in fact, decrim is aligned with UN conventions and international legal obligations.” The HIV Legal Network’s brief to Health Canada’s expert task force on substance use reflects the same.

      Hiding behind international drug law as a barrier in a crisis context is a policy choice that is set to perpetuate law enforcement involvement in the lives of drug users, and allow harms related to drug criminalization to continue. 

      The MMHA has dedicated public resources to “working with police leadership,” outside of police operating budgets to train and educate “more than 9,000 front line police officers.”

      This flavour of decriminalization entrenches the same carceral systems of power that have led to over 10,500 premature deaths in BC since the emergency was formally declared in 2016, while doing nothing to address broader issues like prohibition without a local, regulated supply to replace the illicit one. 

      The MMHA said that “substance use is a health issue—not a criminal justice one.” But drug use has and will always exist outside of health care. Pathologizing substance use does not account for all use (i.e., desired, recreational, and/or occasional). Prescribers are stretched thin and do not have capacity to solve the crisis. 

      The layered bureaucracies that uphold this model will label future harm as unintended consequences—even though consultation, evidence, history, and patterns show that this outcome is to be expected.

      Resources could have been put toward supply-side interventions in the form of demedicalized drug stores and compassion clubs run by people who have been negatively impacted by the drug war; a regulated supply at a potency that people actually use, covered by pharmacare for those who need it, and made accessible beyond a few piecemeal pilots in urban areas.

      We are six years into an emergency that has taken thousands of lives, caused countless other harms, and accelerated the spread of grief and trauma like wildfire. Lives are lost due to drug toxicity and unpredictability, but relevant institutions continue to pour resources into anything other than a regulated and predictable drug supply. 

      Alexis “Lexi” Fisher is a Ktunaxa and Kaska registered social worker/social navigator in the DTES and runs her own Indigenous counselling practice that services Indigenous peoples within the ancestral, traditional, and stolen lands of the xʷməθkʷəy̓əm, sḵwx̱wú7mesh and səlilwətaɬ and all over Turtle Island. 

      Tyson Singh Kelsall is an outreach social worker on stolen xʷməθkʷəy̓əm, sḵwx̱wú7mesh and səlilwətaɬ lands (also known as Vancouver, Canada) and a PhD student in Simon Fraser University’s faculty of health sciences.