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Decriminalization in action: Perspectives on B.C.’s changing drug laws after one year

British Columbia embarked on a transformative approach to drug policy when the province officially decriminalized drugs on Jan. 31, 2023. This three-year pilot project marks a significant departure from traditional punitive measures, signalling a paradigm shift in addressing substance use.

British Columbia has been in the midst of a very serious opioid crisis for many years. On April 14, 2016, B.C.’s provincial health officer declared a public health emergency under the Public Health Act. Despite this, in the seven years since, overdose deaths have more than doubled. In 2022 alone, there were 2,383 illicit drugs deaths in the province; an average of more than six deaths per day.

B.C.’s path to decriminalization started in 2003 when the province opened the first government-sanctioned safer injecting facility (“InSite”) on Vancouver’s Downtown Eastside. Over the last two decades, law enforcement has been actively reconsidering its role with respect to how, when and under what circumstances they interact with people who use illicit drugs.

The Vancouver Police Department (VPD) has a history of progressive drug policy, says Deputy Chief Fiona Wilson, President of the British Columbia Association of Chiefs of Police (BCACP). In 2006, they stopped attending overdose calls as a matter of routine, recognizing that their attendance was often a barrier to people calling for help. Since then, the VPD only attends overdose calls in exceptional circumstances, for example, when paramedics or firefighters request them due to there being reports of violence or suspicious circumstances. In 2017, the VPD published “The Opioid Crisis, the Need for Treatment on Demand”, a report that included a call for expanded drug treatment services from the federal and provincial governments and additional funding for evidence-based addiction treatment. In 2019, the VPD published another report, “A Journey to Hope”, where they advocated for prescribed safe supply. In 2020, while he was the president of the Canadian Association of Chiefs of Police (CACP), VPD Chief Adam Palmer came out and supported the notion of decriminalization.

In 2020, mandate letters were provided to Sheila Malcolmson, Minister of Social Development and Poverty Reduction, David Eby, Premier (Minister of Housing at that time), and Mike Farnworth, Minister of Public Safety, that underscored the urgent necessity for a “made in B.C. solution” to confront the overdose crisis. In responding to this mandate, B.C. officially began working on this initiative and subsequently requested an exemption from the Controlled Drugs and Substances Act through Health Canada for a three-year decriminalization pilot project.

“The decision to decriminalize small amounts of illicit drugs had a clear purpose: to shift the perception of drug use from a criminal offence to a public health concern with a primary focus on saving lives,” said Delta Police Department’s (DPD) Chief Neil Dubord.

Though decriminalization may sound simple, it’s a very complex issue that requires careful planning, collaboration and a strong support infrastructure.

It was hoped that decriminalization would reduce the stigma around drug use and minimize police interactions with drug users, which are essential steps serving the larger goal of saving lives by connecting them with lifesaving services amidst the toxic drug crisis. Therefore, examining the province’s overdose numbers in this context is essential, although it is recognized that long-term change takes time. “The data shows that the number of overdose deaths from January to September 2023 [1,836] surpasses the figures for the same period in 2022 [1,739],” says Chief Dubord. Producing a reduction in deaths is a long-term goal of decriminalization, which results from a societal shift in discussing drug use and reducing stigma.

Implementation challenges

As Deputy Chief Wilson says, “The devil is in the details” when it comes to decriminalization implementation.

Law enforcement was consulted before the provincial government submitted their request for an exemption to Health Canada. The core planning table had representation from the CACP through Chief Mike Serr (Abbotsford Police Department, now retired), who sat on the CACP Drug Advisory Committee; the BCACP, through Deputy Chief Wilson; and the RCMP through Galib Bhayani (now retired) and Sergeant Shane Holmquist. These key members raised several concerns in an effort to address what they knew were likely to be gaps in the exemption.

The first concern was in relation to the threshold amount that would be decriminalized. The recommendation to decrease from an allowable non-cumulative total of 4.5 grams, to a cumulative total of 2.5 grams, was approved by the government. “This change reflected the collaborative effort to find a balanced approach that considers both public safety and harm reduction,” says Chief Dubord.

Another major point of concern was with respect to the public consumption of illicit drugs. Despite raising this concern both verbally and in writing, the issue was not addressed in the request or the final exemption. When decriminalization went live, it didn’t take long before police leaders across the province started hearing from their communities, police boards, mayors and city councils that there were “alarming examples of public consumption in places where it was not appropriate,” shared Deputy Chief Wilson.

As part of the original exemption from Health Canada, six exceptions were included: K-12 schools, licensed childcare facilities, federal airports, Canadian Coast Guard vessels and helicopters, for Canadian Forces members in general, and in a motor vehicle or watercraft operated by a minor. The BCACP and other policing leaders continued to advocate to have more exceptions added to the exemption, and for a provincial legislative framework to address public consumption. Both have now happened, with additional exceptions to the exemption that include: being within 15 metres of a play structure, playground, spray pool or wading pool, and the introduction of provincial legislation.

Bill 34, Restricting Public Consumption of Illegal Substances Act, was introduced eight months into the decriminalization pilot and was set to be enacted through regulations in late 2023 or early 2024. The Bill aims to expand the areas where illicit drug use will not be permitted and makes it an offence if a person refuses to leave a prohibited area upon being asked to do so by a police officer. Locations that will be additionally restricted include beaches, bus stops and entrances to public doorways.

On Dec. 29, 2023, B.C. Supreme Court Chief Justice Christopher Hinkson made the decision to grant an interim injunction that will prevent the Act from coming into force until at least Mar. 31, 2024. In his ruling, he said, “Centrally, but not exclusively, the act will promote more lone drug use. I accept that lone drug use may be particularly dangerous due to an absence or a diminished degree of support in the event of an overdose. When people are isolated and out of sight, they are at a much higher risk of dying.”

The BCACP respects the court’s decision but was extremely disappointed by it.

Deputy Chief Wilson acknowledges, based on her years of experience walking the “beat” on the Downtown Eastside, that the vast majority of people who use drugs go out of their way to avoid doing so in front of children. She says, however, “There are rare situations where a person who uses drugs does so in problematic circumstances and police need to be able to deal with those individuals lawfully when that occurs.”

In the wake of decriminalization, police no longer seize illicit drugs from people who are in compliance with the exemption. This has been a significant shift in thinking and is a marked departure from historical police practice in some areas of the province. Illicit drugs under the threshold, assuming there is no evidence of an offence such as trafficking, are treated like any other property belonging to an individual.

The issue of returning drugs then became a focal point of discussion, particularly regarding the complex matter of liability, Chief Dubord shared. One key concern was whether officers would be held accountable if they chose not to return the drugs, which would potentially breach the provisions of the exemption. Alternatively, there was worry about the potential consequences if officers did return the drugs and a subsequent overdose were to occur.

Photo credit: Delta Police Department

The officer’s authority

If a person is using illicit drugs in public, and is compliant with the exemption, in the absence of any other criminality, police officers have no authority to engage with them. In the wake of discussions across Canada with respect to carding, street checks and profiling, police agencies like VPD and DPD teach their members that before they interact with a person for the purposes of executing their duties, they need to make sure they have legal authority. “With its original rollout, decriminalization took away our members’ authority to engage with a person using illicit drugs in a public place because the possession was no longer illegal. With the new legislation, authority will be brought back for police to address problematic drug use in some public spaces such as on beaches and at bus stops,” says Deputy Chief Wilson.

DPD has a dedicated community navigator who plays a pivotal role in connecting individuals with the intricate human services system. The community navigator frequently assists individuals battling substance use disorder.

Chief Dubord shared a recent example of a bittersweet success that involved the community navigator assisting an individual with addiction in securing a detox bed and subsequently accessing treatment. “It was disheartening to recognize that it took a lengthy five months to access this treatment, despite the individual expressing their need and willingness for help five months earlier. This delay underscores a significant gap in the foundational elements necessary to make decriminalization truly successful.”

Drug dealers and drug quality

When there is evidence of trafficking, it is still a criminal offence regardless of the amount of illicit drugs. Police resources are focused on the individuals and groups who cause the most harm – those involved in the importation, production and trafficking of illicit drugs.

The bigger challenge being faced is the drug supply itself. “We have seen an increase in the toxicity of drugs over the years and, as a result, we continue to see the number of overdose deaths increase,” stated Chief Dubord.

“The devil is in the details” when it comes to decriminalization implementation.

It is the toxicity that is killing people, not the quantity that they are using, Deputy Chief Wilson explains. “It’s unusual these days in Vancouver to find street-level fentanyl that’s not laced with other drugs such as benzodiazepines. This makes it even more difficult for people when they try to detox.”

Community services

Before decriminalization went live, there was hope from police leaders that there would be a dramatic increase in services for people who wanted to access help when they needed it. Unfortunately, that has not been the case, as it was in Portugal.

In 2001, Portugal decriminalized all drugs, with the goal of treating drug use as a public health issue, rather than a criminal one.

The foundation of Portugal’s initiative was treatment and recovery. In 2001, Portugal committed USD $82.7 million for drug oversight, which was reduced to USD $17.4 million over the past 22 years. This decrease in funding was driven by years of economic crisis in the country. “The challenges facing the Portugal model should not be interpreted as a failure of drug decriminalization, but rather as a call for continuous evaluation, improvement and investment to reach the best model possible,” says Chief Dubord.

Deputy Chief Wilson would like to see an increase in prevention, education, harm reduction and treatment on demand in B.C., so that when people decide that they want to get clean, there are no barriers to doing that. “It needs to be accessible and it needs to be free,” she says.

An estimated 68,000 youth between the ages of 15 to 24 meet the criteria for a substance use disorder, yet there are only 24 publicly funded treatment beds to serve youth. More than 100,000 individuals in B.C. are diagnosed with opioid disorders, while there are only 3,277 publicly funded treatment beds available.

“This highlights a significant gap between the need for resources and what is available. Ultimately, the success of B.C.’s decriminalization pilot hinges on a comprehensive system-wide approach, encompassing sustainable funding, evidence-based addiction treatment with prompt accessibility, concurrent mental health crisis intervention and support, and of course, leadership,” says Chief Dubord.

Key takeaways

After the first year of B.C.’s decriminalization pilot, there have been many lessons learned, and key takeaways for other provinces who may be considering taking the same steps.

Both Deputy Chief Wilson and Chief Dubord agreed that, though decriminalization may sound simple, it’s a very complex issue that requires careful planning, collaboration and a strong support infrastructure.

“We all support the notion that we do not want to criminalize people simply by virtue of their drug use and, instead, want to direct them to pathways of health. However, the details with respect to the implementation of decriminalization are important from a public safety perspective and to the people decriminalization impacts, including people who use drugs and those who do not,” said Deputy Chief Wilson.

She added that, in the planning stages, it is crucial to have people who are truly representative of the population being served: people with lived experience, people who support individuals using illicit drugs, people who do not use drugs but live and work in impacted communities and members of Business Improvement Associations.

For Chief Dubord, the most valuable lessons learned included:

• Establishing a comprehensive and accessible human services system, including immediate access to detox, treatment and recovery, with ongoing support services.
• Implementing strong oversight and coordination at the provincial level is vital to ensure that all necessary services are in place and accountable.
• Enforcing rigorous monitoring and transparent reporting to ensure accountability and inform decision-making.
• Committing to evidence-based approaches so that all aspects of the human services systems supporting decriminalization are grounded in research and best practices.
• Securing sustainable and flexible funding to ensure the entire spectrum of services is supported but is also adaptable to changing needs and challenges.

Chief Dubord concluded, “By proactively addressing these takeaways, other provinces can navigate the complexities of decriminalization more effectively and work towards achieving the intended goals of harm reduction and improved public health outcomes.”