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A failed global War on Drugs has had a devastating effect on our communities. The criminalization of drug use has led to tragic rates of disease and overdose and has needlessly cost countless lives across Canada. Drug prohibition creates and perpetuates inequality, discrimination, and stigma by driving drug use underground and fueling a robust street market of deadly toxicity.
Pivot works with people who use drugs to create law and policy changes that will meet their most pressing needs, including timely access to a range of health services, harm reduction programs, and safe supply options in their own communities. We are working to hold governments to an evidence-based approach to drug policy that promotes health and human rights: first and foremost, this means amplifying the calls of people who use drugs for decriminalization and a safe supply of drugs.
May 11, 2021
Decriminalization Done Right: A Human Rights and Public Health Vision for Drug Policy Reformread this article
Act Now! Decriminalizing Drugs in Vancouver
Abolishing the mandatory Victim Fine Surcharge
In April 2018, our team of lawyers, along with counsel from Rosenberg Law, intervened at the Supreme Court of Canada in a case involving the mandatory victim fine surcharge: a post-sentencing fine of at least $100 imposed on every person who commits an offence, regardless of severity. For people below the poverty line who are oftentimes convicted of minor, non-violent crimes, this charge can be devastating. It can, for instance, amount to a third of one’s social assistance payments and make it nearly impossible to pay rent and put food on the table.
With no discretion to waive the surcharge, BC judges were routinely imposing jail time in lieu of payment, knowing that people simply could not pay. We argued successfully that the effects of the surcharge amount to cruel and unusual punishment, and therefore the mandatory surcharge must be struck down. The Supreme Court agreed, citing our submissions numerous times in its written decision. This change in law marks a major victory for people across Canada affected by the intersecting harms of poverty, homelessness, and substance use.
Advocating for drug decriminalization: locally, provincially, and federally
Following the publication of Act Now!, we shared the report with various levels of government and have continued to pressure all relevant government actors to take action on decriminalization. In May 2020, Pivot, the Canadian Drug Policy Coalition, and the HIV Legal Network issued a call to the federal government to use its exemption power for the purposes of decriminalizing simple drug possession. More than 170 civil society organizations endorsed the letter. Soon after, Pivot launched an email petition urging Vancouver’s Mayor and Council to apply for a local exemption. More than 1400 people participated in the action, calling on the City to take more meaningful action than simply calling on other levels of government to do the right thing.
Fortunately, our advocacy appears to have paid off. In November, the City of Vancouver passed a motion to apply for an exemption from the federal government to protect all people in Vancouver from the enforcement of the offence of simple drug possession under the Controlled Drugs and Substances Act. If approved by the federal government, Vancouver would eliminate all criminal consequences for possessing drugs for personal use—precisely what Pivot and the community have been fighting for. We look forward to progress on this front and will of course continue to keep pressure on governments, the health authority, and the police.
Fighting burdensome bail conditions
Pivot has long drawn attention to the harms of bail conditions and how frequently and arbitrarily they are imposed, disproportionately against communities who are over-criminalized, over-incarcerated, and routinely targeted by police. In our 2018 report Project Inclusion, we found that certain bail conditions in particular—namely, abstinence conditions, ‘no drug paraphernalia’ conditions, and area restrictions or ‘red zones’—cause people harm and directly undermine personal and public health and safety.
Over the last two years, we have had some success in changing law and policy around bail conditions that impact people who use drugs. In April 2019, the Director of Public Prosecutions directed federal Crown prosecutors to minimize detention for breaches of bail conditions, in part by no longer imposing the three above-mentioned conditions on people experiencing addiction. The Directive cites Project Inclusion as evidence that imprisonment for minor breaches related to substance use can adversely affect people’s tolerance levels for opioid use and put them at increased risk of overdose after release from jail.
In December 2019, Pivot intervened at the Supreme Court of Canada in a case called R v Zora: a case about bail breaches that ultimately marked a new path forward for Canada’s broken bail system. We argued that proving a breach must be a tailored exercise—one that takes into account the lived experience and subjective circumstances of the person accused. Unanimously, the Court agreed.
Challenging the closure of supervised consumption sites
Community groups opposed to life-saving supervised consumption have long been a barrier to setting up these sites across Canada, which are already inundated with numerous bureaucratic and political roadblocks. In December 2018, Pivot represented our allies at the Canadian Drug Policy Coalition to intervene in a case before the Federal Court of Canada. In that case, an Edmonton-based business association challenged the decision of the Minister of Health to approve three life-saving supervised consumption sites in downtown Edmonton, claiming that because it was not adequately consulted in the Minister’s decision, the sites should be shuttered. We opposed the submissions of the business association. Under the law, third party non-applicants are not entitled to “procedural fairness” in the case of supervised consumption site approvals. These decisions are principally health care decisions, and a community organization is not owed the right to weigh in on such matters.
The Court agreed with our submissions and dismissed the business association’s application, citing directly from our submissions. This ruling is significant, as it was the first time the provisions of law governing the approval of supervised consumption sites were tested in court and interpreted by a judge. The favourable outcome sets an important precedent adding greater protection for desperately-needed health services that are too often the target of community stigma and intolerance. It affirms that public health remains the key consideration for Minister’s tasked with approving supervised consumption sites.
Access to heroin-assisted treatment
People who are struggling with addiction should have access to all proven, evidence-based forms of addiction treatment. For individuals experiencing chronic and serious opiate addictions, this includes heroin-assisted treatment (HAT), which has been proven to improve health outcomes in ways that other traditional addiction treatments have not. In 2013, the federal government put in place a regulation prohibiting access to this life-saving medicine. In response, Pivot initiated litigation on behalf of five patients who took part in the Study to Assess Longer-term Opioid Medication Effectiveness (SALOME), which tested alternative treatments for people with chronic heroin addiction, including HAT, who are not benefiting sufficiently from available treatments such as oral methadone. We argued that government regulations preventing the ongoing delivery of life-saving treatment to these vulnerable addictions patients was a violation of their Charter rights. Pivot won a court injunction protecting our clients’ access (and that of the 202 other research participants) to HAT while waiting for the case to go to trial. In September 2016, rather than defend their unconstitutional regulation in court, the federal government repealed the offending regulation. This was a major victory for our clients, who achieved the change they sought with their lawsuit.
Defending local access to harm reduction
A number of BC municipalities have bylaws in place to restrict access to methadone and harm reduction supplies and to make it difficult to operate services for people who use drugs. The most sweeping anti-harm reduction bylaw in BC was introduced by the City of Abbotsford in 2005. In May 2013, Pivot filed a lawsuit and human rights complaint challenging the bylaw, which prohibited all harm reduction uses anywhere in the municipality. In early 2014, the City of Abbotsford voted to amend the bylaw before the case went to court, a huge victory for people who use drugs in the City of Abbotsford and for human rights in this province.
Mandatory minimum sentences for drug crimes
In 2013, Pivot released Throwing Away the Keys, a comprehensive report looking at the harms and social costs of mandatory minimum sentences for certain drug crimes. Since then, Pivot has intervened in several successful challenges to mandatory minimum sentencing provisions. Our goal in those interventions was to ensure that the perspectives and experiences of people who come before of the courts as a result of their addiction, Indigenous people, and vulnerable women were considered when assessing the impact of specific sentencing provisions. In April 2016, the Supreme Court of Canada and the BC Court of Appeal delivered decisions in two of those cases, overturning specific minimum sentencing provisions for certain drug offences. Later that year, Canada’s federal justice minister announced that her government intends to cut widespread use of mandatory minimum sentences and give judges back their discretion.