Decriminalization in BC: Sorting Fact From Media Frenzy

Clearing Up Misinformation

Decriminalization of Personal Possession of Drugs in BC? What’s going on

We’ve seen a lot of headlines lately about drug decriminalization. In this post, we’re going to weed through the media mess and talk about the facts.

Harms of Drug Prohibition

There is widespread recognition that drug prohibition does not reduce substance use or the availability of illicit substances – in terms of an approach to substance use, prohibition has failed. Not only is prohibition a failed approach, but it is also actually very harmful. Canada’s drug prohibition laws disproportionately target racialized groups. Indigenous people are almost nine times more likely to be arrested for drug possession in comparison to white people – even though rates of substance use amongst the groups are similar.

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Drug prohibition has also resulted in widespread stigmatization of substances and the people who use them.

This stigma results in social inequities and substantial barriers to accessing healthcare, harm reduction, treatment, and social services – all of which directly impact the health and well-being of a person.

Beyond the societal impacts, individuals who are arrested, charged, and incarcerated for drug possession also experience immense harm. There are substantial negative effects that stem from having a criminal record, including barriers to employment and healthcare access.

What is Decriminalization of Personal Possession?

When a jurisdiction decriminalizes personal possession, it means that someone who is caught by the police with drugs would not be penalized by the criminal justice system for their possession of that substance. There are many different forms of decriminalization, and the British Columbia approach is notably different than other places in the world.

The British Columbia Model

In the Canadian context, the Province of BC received an exemption from Health Canada and the Controlled Drugs and Substances Act in January 2023, to decriminalize anyone over the age of 18 in possession of less than or equal to 2.5 grams of opioids, methamphetamine, crack/cocaine, and MDMA, combined. When someone is caught in possession of exempt substance(s) under the 2.5 gram threshold for personal use, police take no further action beyond providing a health information card to the person. Therefore, the person does not receive a fine and is not arrested. Within the policy, there is also room for police discretion to choose not to act if someone is in possession for personal use over the threshold.

Most importantly, under the BC decriminalization framework, the person deemed to be in possession for personal use cannot have their substance(s) seized by police. It is well documented that police seizures of drugs perpetuate the harms of prohibition – and most of all, it does not stop someone from using substances. Instead, many people who have their substances seized will quickly seek replacement substances, sometimes from an unknown dealer, in order to avoid painful withdrawal. In the context of the ongoing toxic drug supply crisis, getting a substance from an unknown dealer may put the person at an increased risk of overdose; moreover, quickly using a substance to avoid withdrawal may also put the person at risk for overdose.

The original exemption request described above included several public places where decriminalization would not apply, including school grounds, airports, and motor vehicles. However, as discussed later in this article, in May 2024 the decriminalization model for BC was revised to only apply to select private places.

Evaluation of First 9 Months of Decriminalization February – October 2023

This section relies on data from the Ministry of Mental Health and Addictions for the first nine months of decriminalization from February to October 2023.

Decriminalization is a targeted intervention aimed at reducing the harm caused by interacting with the criminal justice system. When evaluating the impact of decriminalization, we should focus on key indicators related to encounters with law enforcement and the criminal justice system. Broader issues, such as improving access to substance use treatment or reducing stigma, require separate policy and program interventions beyond decriminalization. Therefore, this article will focus specifically on indicators tied to the criminal justice system.

o   Possession Offences

An offence means an event where there was a formal interaction with a police officer. An offence is not a formal charge – in BC charges are laid by the Prosecution. This data just looks at incidents where police interacted with someone who was in possession of a drug for personal use, and that possession was the “most serious offence” meaning that the person was not charged with anything more serious.

In the first nine months of decriminalization from February to October 2023, there was a 77% reduction in the number of possession offences in comparison to the past four-year average of the same period. In total, there were 1,590 offences in BC during this period (for comparison there were 4,840 offences in 2022 from February to October). These 1,590 offences may reflect situations where the decriminalization exemption didn't apply, such as at airports, school grounds, or while operating a vehicle. They could also involve non-exempt substances or arise from operational challenges in how police record data (for example, sometimes police record a possession charge instead of a trafficking charge until the investigation is completed).

o   Police Drug Seizures

As discussed, an important component of the BC decriminalization model is that police officers are not allowed to seize a person’s substance(s) if they are deemed to be in possession for personal use below the 2.5 gram threshold. In the first 9 months of decriminalization seizures below the threshold dropped 96% compared to the previous four-year average of the same period. In total, there were 86 seizures under 2.5 grams in the Province (for the sake of comparison there were 1,283 seizures in 2022 from February to October).

Interestingly, the data from the Ministry also shows that seizures above 2.5 grams have also significantly decreased since decriminalization. For example, seizures between 2.5-4.5 grams have dropped 61% compared to the previous year. This is pretty significant! We know that seizures cause harm to people who use drugs, as described above, so this is pretty incredible.

What has changed

The picture that the preliminary data paints is that decriminalization was working as intended – there was a significant drop in offences and police seizures for personal possession.  This is a significant amount of harm that has been potentially avoided.

However, there has been significant public and political backlash blaming decriminalization for a range of social ills – including public drug consumption and rises in homelessness. We know from research that the factor most strongly associated with public consumption is homelessness and lacking safe places to use substances (like safe consumption sites). We also know that a key structural cause of homelessness is poverty. Decriminalization is not an intervention that can address public consumption or homelessness – to reiterate, decriminalization is a small intervention to reduce harms that stem from interacting with the criminal justice system. The wrong policy is being attached to a range of social ills. If the government of BC was serious about reducing public consumption, they would implement widespread access to safe consumption sites across the Province – which have consistently been scientifically proven to reduce “street disorder” including public drug use.

Instead, in response to public and political backlash and only 15 months into the decriminalization pilot, the BC government asked Health Canada to revise the decriminalization exemption request to no longer apply in public places. Unfortunately, in May 2024, Health Canada responded by amending the exemption request so that decriminalization only applies in a select few private places, including designated healthcare clinics (addiction treatment centres, overdose prevention sites, drug checking locations), shelters, single room occupancy units, and private residences.

Potential Impacts

While it is impossible to predict the future, what we do know is that decriminalization in BC will no longer apply to everyone who uses drugs. Decriminalization is supposed to be an equity-based approach that offers the ability for people who are more marginalized and targeted by police, to have the same benefits that people of privilege experience – which is not to be criminally charged or pursued by police for possessing drugs. The change of decriminalization to only apply to select private places means that only those with the most privilege, those who own homes, who have a place to live, are protected from interacting with the criminal justice system. The group that decriminalization intended to protect, is no longer protected.

The recent rollback of BC’s decriminalization policy is a stark reminder that we can't solve deeply rooted social issues with quick fixes. Decriminalization was never meant to fix all of the wicked problems in our society, rather it was a step towards reducing the harms stemming from interactions with the criminal justice system for people who use drugs. Limiting the scope of decriminalization to only apply in private places further entrenches the inequalities it aimed to address. True change will only come when we face the real issues—homelessness, poverty, and lack of safe spaces for drug use—with the comprehensive solutions they demand.

Author: Erica McAdam, MPP, PhD Student, University of British Columbia, BC Centre on Substance Use

Sources:

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