March 15, 2021

Via Email

Kennedy Stewart
Mayor
City of Vancouver

Mary Clare Zak
Managing Director of Social Policy & Projects
City of Vancouver

Adam Palmer
Chief Constable
Vancouver Police Department

RE: Threshold amounts in Vancouver’s application to decriminalize drug possession (A joint open letter of Vancouver Area Network of Drug Users and Pivot Legal Society)

Dear Mayor Kennedy Stewart, Mary Clare Zak and Chief Adam Palmer,

We write on behalf of the Vancouver Area Network of Drug Users (VANDU) and Pivot Legal Society regarding potential ‘threshold amounts’ (i.e., quantity limits for drug-related offences) under the City’s s. 56(1) application to decriminalize drug possession. In particular, if threshold amounts are adopted as part of the City’s model, it is critical that they reflect the maximum quantity of substances any person is likely to possess.

Our Position

This is our position: threshold amounts must be appropriately high in order to eliminate both the abuse of police discretion and the enforcement and confiscation of below-threshold amounts. We submit that possession or transfer (i.e., sharing, splitting) of below-threshold amounts must always be considered in law to be simple possession and therefore protected by the exemption. Possession of above-threshold amounts, in turn, is never automatically or presumptively possession for the purposes of trafficking (PPT) or trafficking. Existing burdens of proof must still be met in order to establish these higher offences, and where only simple possession is made out, the exemption must apply.  

As expressed in our joint statement of November 19, 2020, we support efforts to fully decriminalize drug possession in Vancouver.However, the imposition of threshold amounts, if not maximal, undermines the goals of decriminalization and belies classification as “full decriminalization.” Threshold amounts that are too low, or that reflect only the “average” daily use quantity of the “average” person who uses drugs, will do more harm than good, especially to those of us who are poor, racialized, or psychiatrized. It follows that a model of decriminalization without an appropriately high threshold amount will not have our support.

If you pull me over for anything other than trafficking, and I have drugs or drug paraphernalia on me, that’s irrelevant for the case at hand. It should have nothing to do with me jaywalking, loitering. Whatever drugs on me, that’s my business, that’s my lifestyle. If I’m caught for a crime or bylaw infraction, that’s what I should be questioned about, not whatever’s in my bag at the moment.

I’ll tell you right now, if I have drugs on me, I don’t jaywalk.  The cops are looking for any excuse to look through your pocket. Especially if they suspect you may have any quantity of drugs on you, they will wait for any little thing to justify searching you. The search will lead to dope and the dope lands you in a jail cell. And we all know jail does nothing good but take my tax money and put my friends in danger of detoxing in an unsanitary, unsafe place. 

If the police find a scale on me, it’s not because I’m a drug dealer – it’s because I’m a safe drug user. When I sit down to do my shot, I measure out exactly how much I want to use. I know what my quantity is, and I measure so I don’t overdose, like any responsible user should.

- Martin Steward, VANDU Board of Directors

The Law: Quantity alone does not distinguish possession from other offences (PPT/trafficking)

The case law is clear: the quantity of drugs a person possesses is not, on its own sufficient to establish PPT or trafficking under s. 5 of the Controlled Drugs and Substances Act (CDSA).¹ In other words, there is no identifiable threshold in law that separates simple possession from other offences. This is in part to account for the fact that drug use and possession are not one size fits all. The quantity of drugs a person possesses depends on various factors, including but not limited to frequency of use, tolerance, bodily composition, drug potency, geography, economic circumstances, etc.

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I am not aware of any presumption in law that quantity alone is indicia of trafficking or possession for the purpose of trafficking.

R v McCallum, 2006 SJ No 404 at para 28

Courts have indicated that only where there is “an objectively significant amount, i.e., 10kg or 1000 hits” might it be possible that quantity alone suffices to establish PPT.² But even then, there is no presumption in law.

To be clear, just because someone might be in possession of what is considered a large quantity of drugs, that does not mean their intent was to traffic them.

Hill/Wein Evidence Newsletter page 13

As noted, neither s. 5(2) of the Controlled Drugs and Substances Act nor the definition of traffic, nor the relevant authorities stipulate that quantity is a part of the actus reus of the offence.

R v Yung Chan, 2003 66 OR (3d) 577 at para 34

If thresholds below an objectively significant amount are adopted, we risk creating a model more restrictive than the one currently permitted by the caselaw (especially if police attempt to retain the ability to enforce PPT where the amount possessed is below threshold). We do not consent to this.

“Average” thresholds will target those of us most marginalized

It is well-established that VPD’s enforcement of drug-related offences is systemically racist and biased against poor people. If thresholds are based on the “average drug user” (a term that we contest in and of itself), drug users who do not fit this mold – without question, the most marginalized drug users – will not be protected.

Many of us purchase or carry our drugs in bulk – a many-days’-worth supply. Why? Because we risk arrest every time we buy; and choose to mitigate that risk in part by buying larger quantities less frequently. Because there’s a pandemic, and we’re quarantining or limiting excursions for our own health and safety. Because we’re having to adapt to an increasingly toxic and unstable drug supply.  Because our partners or comrades might buy for the both of us when we’re unable to do so ourselves. Because we live in rural and remote communities with limited access to our suppliers. Because we have limited mobility and don’t have capacity to purchase one-off doses. Because we may not have the luxury of an indoor home or a safe-keeping place for our supply. Because we use large quantities of drugs!

Threshold amounts don’t make any sense because what I need for medicine may be way more or way less than someone else. And besides, I live in a community. I live in a co-op. I could be carrying Tom, Dick, and Harry’s medicine if they ask me to. We care about each other and take care of each other. So, if my friends and neighbours are quarantining, I’m picking up the community’s supply and making sure they have what they need. It should be no different from you picking up a prescription for grandpa. Should I be arrested for that just because it’s over a certain number? If we decriminalize, no amount should be illegal. That’s that.

-Brian McDonnell, VANDU Board of Directors

We are concerned that averaging thresholds will further stigmatize those of us whose consumption patterns are deemed “abnormal” or “problematic.” Simply because we do not fit a standardized, acontextual, and homogenous criteria, we will be denied the benefits of decriminalization (despite the fact that we need those benefits most). Those of us who are unsheltered will be unfairly targeted, as per usual, because we are forced to carry all our belongings on our person and don’t have the privacy and protection that housed people do. New protections for only a subset of PWUD will result in continued and likely reinvigorated enforcement against the rest of us. Undoubtedly, people who are poor and/or unsheltered, people of colour, people in rural and remote communities, people with disabilities, and women and gender-fluid people will be left vulnerable. 

Threshold quantities must be a floor and not a ceiling

If threshold quantities are adopted, they should serve as a ‘floor’, wherein the possession or transfer (i.e., sale, sharing, splitting) of a quantity below the established threshold is never a crime. In other words, we oppose the enforcement of possession in addition to PPT and trafficking in all scenarios involving possession of a below-threshold amount.

The possession of above-threshold amounts in turn, is never automatically or presumptively PPT or trafficking. As always, the burden of proof lies with the prosecution to demonstrate all elements of those offences in order to secure them (i.e., intent to sell). Courts will still be permitted to find that the possession was for personal use (and therefore protected under the exemption), or that the transfer did not amount to trafficking. In addition, mitigating factors (including whether the person uses drugs themselves or if they belong to an affected community) must still be taken into consideration in determining whether PPT or trafficking has been established.

Nothing about us without us

If thresholds are adopted as part of the City’s move to decriminalize drug possession in Vancouver, it is non-negotiable that our community be integral to the drafting of those thresholds. The VPD cannot be the arbiters of this process. Drug thresholds must reflect our lives and our circumstances, and the only way to ensure this is to follow our leadership.

We look forward to speaking in future.

Sincerely, 

Vancouver Area Network of Drug Users, and
Pivot Legal Society

cc:

Dr. Patricia Daly
Vice President, Public Health, Chief Medical Health Officer
Vancouver Coastal Health

¹ R v Yong, 2020 ABQB 644 at para 28; R v Bui, 2020 AJ No 74 at para 109; R v McCallum, 2006 SJ No 404 at para 28 [McCallum]; R v Chan, 2003 66 OR (3d)577 at paras 27-35. See also Hill/Wein Criminal Evidence Newsletter, Issue 44 (2020) at p 13: “As a general proposition, a trier of fact, without expert evidence, cannot infer p for p [PPT] on the basis of quantity alone.”

² Hill/Wein Evidence Newsletter page 13.