Hon. Minister Bennett
Ministry of Mental Health and Addictions
Health Canada

Via Email

March 17, 2022

Dear Honourable Minister Bennett,

RE: Decriminalization and the consequences of inadequate threshold quantities

I write to you in my position as Staff Lawyer of Drug Policy at Pivot Legal Society, a human rights legal organization based in the Downtown Eastside (DTES) of so-called Vancouver, on the stolen lands of the xʷməθkʷəy̓əm (Musqueam), Skwxwú7mesh (Squamish), and səl̓ílwətaʔɬ (Tsleil-Waututh) Nations. I want to share my concerns about threshold quantities for the multiple section 56(1) exemption applications currently under your review: if set too low, threshold quantities will undermine the goals of decriminalization and, ultimately, cause more harm than good in the lives of people who use drugs (PWUD), especially Black, Indigenous and People of Colour (BIPOC) and people experiencing poverty. I therefore urge you to ensure that threshold quantities do not re-criminalize PWUD. This means (a) not imposing thresholds below the already minimal amounts requested by applicants, and (b) imposing thresholds above the amounts requested by applicants, when in accordance with the needs of PWUD.

In 2020, Pivot authored Act Now! Decriminalizing Drugs in Vancouver, a report calling on non-federal levels of government to apply for exemptions under s. 56(1) of the Controlled Drugs and Substances Act (CDSA) to decriminalize simple drug possession. Since then, Pivot has been actively involved in the application processes of both the Province of BC and the City of Vancouver. We continue to serve as a member of the BC Ministry of Mental Health and Addictions’ Core Planning Table on Decriminalization.¹

During both processes, I have watched with concern as government officials claim an interest in the expertise and representation of PWUD while at the same time adopting design features that are entirely at odds with the requests and concerns voiced by PWUD; in particular, threshold quantities that have been proposed without the consent of PWUD and without a sound evidentiary basis. In March 2021, Pivot and the Vancouver Area Network of Drug Users (VANDU) were moved to publish a joint position paper emphasizing that threshold quantities, if adopted, must accurately reflect the current use and purchasing patterns of PWUD. Many PWUD purchase large quantities of drugs out of necessity: in particular, people in rural, remote, and/or Indigenous communities; people with mobility restrictions; people who use large quantities of drugs; people who purchase according to market rates and drug toxicity, etc.² The CDSA is moreover silent on quantity as it relates to simple possession and possession for the purposes of trafficking offences, and Courts have clarified that quantity alone is not enough to distinguish simple possession from other offences.³ Why? Because drug possession is not one-size-fits-all.

The threshold quantities proposed by both BC and Vancouver do not reflect these realities, nor the feedback of PWUD. In the BC context, for instance, many rural and remote drug user-led groups have publicly affirmed that a cumulative threshold of 4.5 grams is far too low to meet the needs of rural drug users, including Indigenous communities. It is therefore critical that Health Canada does not impose thresholds any lower than these bare minimum quantities. In fact, it would be prudent to impose higher thresholds in accordance with real use and purchase patterns to ensure the success and accessibility of decriminalization.

There are also concerns that police are maintaining significant influence in the policy design of decriminalization models and related decision-making processes. This is troubling given that law enforcement and criminalization lie at the very heart of Canada’s drug poisoning crisis and moreover that your government has claimed substance use is no longer a criminal justice issue.

In fact, evidence shows that too-low thresholds pose a variety of unintended consequences, including:

• Perpetuating stigma against PWUD
• Perpetuating criminalization and incarceration of PWUD
• Perpetuating criminalization’s well-documented ill effects, such as drug use being driven underground and barriered access to services • Producing more frequent interactions with the illicit drug market
• ‘Net-widening’, whereby higher numbers of people end up captured by the criminal justice system as compared with pre-implementation

This year, I co-authored a peer-reviewed article in the International Journal of Drug Policy, titled “The details of decriminalization: designing a non-criminal response to the possession of drugs for personal use.”⁴ Based on outcomes in Australia, the authors warn that if threshold quantities are set too low and not on the actual use and purchasing patterns of PWUD, ‘net-widening’ can occur, whereby the number of people subject to state interventions actually increases rather than decreases as a result of the policy change. For instance, if police have a newly-defined mandate to enforce simple possession offences over a certain (low) amount, we will almost certainly see greater numbers of people cycled through the criminal justice system. Based on what we’ve heard from PWUD, Pivot believes the same will happen in Vancouver and BC, even under a cumulative quantity of 4.5 grams.

Your mandate requires you to work directly with communities to “provide access to a full range of evidence-based…harm reduction.” Threshold quantities and other design features should neither be political nor based on the input of an entity that remains deeply entrenched in the criminalization of PWUD. Canada’s drug policy has always been politically-motivated—at direct cost to the lives of PWUD. A true evidence-based approach recognizes the failures of prohibition and seeks to address them without playing into the politics, racism, and anti-poor logic that have so far only wreaked havoc on poor and BIPOC communities.

I urge you to prioritize decriminalization in good faith, and therefore to ensure that selected threshold quantities do not re-criminalize PWUD.

Please do not hesitate to be in touch with me for any questions or concerns.

Sincerely,

Caitlin Shane, Staff Lawyer
Drug Policy, Pivot Legal Society

cc:
Hon. Minister Duclos, Minister of Health, Health Canada
Hon. Minister Lametti, Minister of Justice and Attorney General, Canada
Hon. Minister Malcolmson, Minister of Mental Health and Addictions, British Columbia

^[1] Please note that BC’s proposed threshold quantity of 4.5 grams was initially supported by Pivot on the condition that (a) the number was non-cumulative and (b) the number applied only where evidence supports it—i.e. members of the DTES. We stand in solidarity with communities outside the DTES who have also been public that 4.5 grams is far too low to meet their needs.

^[2] VANDU and Pivot's position on threshold amounts in Vancouver's application to decriminalize” (March 15, 2021), online: https://www.pivotlegal.org/vandu_and_pivot_on_threshold_amounts

^[3] R v McCallum, 2006 SJ No 404 at para 28; R v Yung Chan, 2003 66 OR (3d) 577 at para 34.

^[4] Alissa Greer, et al, "The details of decriminalization: Designing a non-criminal response to the possession of drugs for personal use." (February 4, 2022), Int J Drug Policy 102, online: https://pubmed.ncbi.nlm.nih.gov/35131688/