In 2020, Pivot Legal Society published Act Now! Decriminalizing Drugs in Vancouver, a report calling on provincial and municipal governments to, in the face of federal government inaction, do everything in their power to decriminalize drug possession. In particular, we called on cities and provinces to apply for a federal exemption to Canada’s prohibition of drug possession for personal use, under the Controlled Drugs and Substances Act.
The criminalization of drug possession for personal use (or “simple possession”) has been ineffective in reducing the use and availability of illicit drugs; fuelled stigma against people who use drugs; targeted and incarcerated racialized communities and poor people; discouraged access to health and harm reduction services; and driven an unregulated market of unknown toxicity. As skyrocketing rates of overdose deaths across Canada demonstrate, prohibition-based drug policy is a veritable death sentence for people who use drugs.
Since releasing our report, numerous jurisdictions have followed our recommendation: the City of Vancouver submitted its application to the federal government in May of 2021; the Province of BC followed suit in November of 2021; and the City of Toronto is currently drafting its own application.
Neither model was sufficiently based on the needs of drug users exposed to constant policing and criminalization.
Health Canada has yet to respond to or approve either the City of Vancouver’s or the Province of BC’s applications. Moreover, since these governments’ exemption applications contain two different models of decriminalizing simple drug possession, it is unclear whether the two models will co-exist or whether the federal government will prefer a single, unified model for all of BC across every city. Ultimately, we prefer BC’s thresholds and the explicit protections for people who use drugs with respect to drug seizures and the splitting/sharing of small amounts, however neither model was sufficiently based on the needs of drug users exposed to constant policing and criminalization. Only full decriminalization will do—something Pivot and other organizations across Canada urgently outline in our newly-released platform document: Decriminalization Done Right: A Rights-Based Path for Drug Policy.
We compare the two proposed models in the following table. Download a PDF version.
Scope of Application
Each model only provides legal protection to people located within its geographic boundaries. The Vancouver Model would apply to people who possess drugs while located in the City of Vancouver (but not while located in surrounding cities in the Greater Vancouver Area, such as Burnaby or Surrey). Residents and non-residents alike are protected, but only while located within the geographic scope at the time of possession; a BC resident would not be protected while visiting another province, for instance.
Since all people are harmed by criminalization regardless of age, Pivot maintains that youth and adults alike deserve decriminalization.
Under both models, only people aged 19 and over are protected. Minors remain criminalized for drug possession and other drug-related offences under the Youth Criminal Justice Act. Since all people are harmed by criminalization regardless of age, Pivot maintains that youth and adults alike deserve decriminalization. This is particularly true given the BC NDP’s history of introducing legislation that would involuntarily hospitalize youth who experience an overdose.
Both models apply to powder and crack cocaine, as well as opioids, including heroin, fentanyl, and other powder street opioids. Vancouver’s model applies to all amphetamines (including methamphetamine), while BC’s model applies only to methamphetamine.
Both models exclude protections for possessing all other substances, including psilocybin, MDMA, LSD, Ketamine, and GHB. Given the prevalence of polysubstance use and the role played by these excluded substances in harm reduction and maintenance therapies, Pivot holds that any decriminalization model should cover all illicit substances, not merely those associated with the highest rates of overdose.
Threshold quantities set the amount of a substance one can legally possess for their own use. Pivot and VANDU have emphasized that if a model’s threshold quantities do not reflect the drug amounts that people realistically purchase or use, many groups will remain needlessly criminalized, particularly those who use and purchase larger quantities of drugs for various social and systemic reasons (i.e., people in rural and remote communities, people with disabilities, etc.)
The thresholds established under both models are insufficient.
The thresholds established under both models are insufficient. The Vancouver Model, from which Pivot and VANDU publicly withdrew support, bases its thresholds on outdated data that does not capture drug market changes since the onsets of COVID-19 and the overdose crisis. Not only do the City of Vancouver’s proposed thresholds fall well-below the actual amounts that people in Vancouver are using and purchasing (according to VANDU’s rapid evaluation of DTES-based drug users and average amounts of units for sale in the street market), the Vancouver Model also sets a unique threshold for each substance class (i.e. opioids = 2 g, cocaine = 3 g). This creates a logistical challenge whereby police must determine what class the substance belongs to and whether it is above or below an already very low threshold quantity. It thereby allows police to continue to interfere with the lives of drug users, including those who possess very small quantities of drugs.
Photo: International Overdose Awareness Day, March in the DTES | August 31, 2021 | Caitlin Shane
The BC model does not have drug type-based thresholds; rather, it permits a cumulative total of all drugs possessed, in grams. Technically, one can possess more drugs cumulatively under the Vancouver Model (7.5 g) than under the BC Model (4.5 g). Though the cumulative nature of BC’s threshold is simpler and perhaps more convenient for the purposes of police and public understanding, it is still far too low. BC’s threshold moreover fails to account for polysubstance users (who purchase various types of drugs in varying quantities); Indigenous, rural and remote communities (who do not have the same geographic access to dealers that urban drug users may have, and who therefore may purchase in bulk); and the many people who purchase larger quantities for their own use and the use of friends and family who may be unable to purchase for themselves.
The commonality between models is that the proposed thresholds disregard the real-life use and purchase patterns of people who use drugs. A policy of “decriminalization” that continues to criminalize large segments of our community is one we cannot support.
Drug Seizure by Police
Both models reject the practice of drug confiscation by police. This is a win. We know that police departments claiming to have a policy of de facto decriminalization continue to confiscate people’s drugs, which leaves people no choice but to source a supply elsewhere, oftentimes from an unknown dealer and potentially via “grey market” income-generating activities. We support this critical feature because a policy that allows police to continue seizing people’s personal drug supplies only replicates the harms of drug prohibition. In our view, police should never confiscate one’s personal drug supply, whether above or below the threshold quantity. An ideal model would extend this protection to all instances of simple possession.
Trafficking of any amount (whether above or below the threshold quantity) remains illegal under both models. Fortunately, the BC model accounts for a “social supply” of below-threshold quantities, meaning that a person who possesses less than 4.5 grams of a substance(s) with intent to share it with another person (absent any profit motive) is decriminalized. In our view, however, this allowance still falls short. Decriminalization should extend beyond mere drug possession to all instances of transferring drugs (i.e., splitting, sharing, selling) of quantities below specified thresholds. It is common for people to share drugs when using with friends or acquaintances, or to sell limited quantities to others in their network for subsistence, to support their own dependent use, or to provide a safe supply (when they have confidence in the quality of the substance).
Both models reject all administrative sanctions, including fines, document seizures, or mandatory referrals to treatment or education. We applaud this progress. People who use drugs have long criticized the harms of administrative sanctions, which perpetuate many of the same harms as prohibition, including driving drug use underground due to fear of police interaction and penalization.
Police are not healthcare providers; they are not peers; they are not harm reduction experts. Their history with people who use drugs is a violent and oppressive one.
Both models do, however, provide for the provision of “voluntary” referrals and education resources by police to people who use drugs. The Vancouver Model says that people who possess drugs may be given a voluntary referral to a health care resource. The BC model says that all people who possess drugs will be given information outlining local health and social services. We appreciate that in both cases, people who use drugs retain autonomy to decide whether to pursue these services. However, we decry the role of police in providing this information. Police are not healthcare providers; they are not peers; they are not harm reduction experts. Their history with people who use drugs is a violent and oppressive one, and we are concerned that this role revision will be used to justify sustained police interference in people’s lives and further deter access to harm reduction services, as police have been shown to disincentivize drug users from accessing services in the past.
We eagerly await Health Canada’s response to the mounting number of exemption applications it has received—it is clear that federal action is long overdue.
Using the law as a catalyst for positive social change, Pivot Legal Society works to improve the lives of marginalized communities.