STOPPING THE HARM - British Columbia

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STOPPING THE HARMDECRIMINALIZATION OF PEOPLEWHO USE DRUGS IN BCPROVINCIAL HEALTH OFFICER’SSPECIAL REPORT

TABLE OF CONTENTSAcknowledgements.2Executive Summary.3The Overdose Crisis in BC.3Decriminalization of People Who Use Drugs.4Chapter 1: The Illegal Drug Overdose Crisis in BC.6Illegal Drug Overdoses in BC.6BC’s Illegal Street Drug Supply is Highly Toxic.7BC’s Response to the Overdose Crisis.8Pharmaceutical Alternatives to Street Drugs as Part of a Harm Reduction Approach.8Key Messages.9Chapter 2: History of Canada’s Drug Laws, National Strategies, and InternationalDrug Conventions. 10Key Messages. 16Chapter 3: Harms Associated with Prohibition-Based Drug Laws and Policies. 18Greater Harms Are Experienced by Women. 18Health Harms. 19Stigma. 20A Lucrative Illegal Drug Market. 21Incarceration. 21Economic Costs. 21Drug Offences in BC. 22Key Messages. 22Chapter 4: Alternatives to Criminal Justice Approaches to SubstanceUse and Possession. 24Alternatives to Prohibition and Criminalization. 24Decriminalization of People Who Use Drugs. 26Threshold of Personal Use. 26Determining Penalties. 26Decision-making Authority. 27Establishing an Alternative Pathway. 27Growing Support for the Decriminalization of People Who Use Drugs. 31International Support. 31Canada. 32British Columbia. 32Response to Support for Decriminalization. 33Key Messages. 33Chapter 5: Discussion and Recommendation. 34Discussion. 34Recommendation. 36Options for Implementation in BC. 37Option 1: Amend Provincial Policing Policy. 37Option 2: Amend Provincial Policing Regulation. 37Conclusion. 38Appendix A: Glossary. 39References. 41PHO SPECIAL REPORT1

ACKNOWLEDGEMENTSThe Provincial Health Officer (PHO) would like to thank former PHO, Dr. Perry Kendall,and Acting Deputy Provincial Health Officer, Dr. Brian Emerson, for their efforts and keycontributions to this report.The PHO is also grateful to the PHO project team:Haley Miller – Lead Researcher/WriterSenior Policy AnalystOffice of the Provincial Health OfficerBC Ministry of HealthBrynne Langford – Research and EditingManager, Projects and Strategic InitiativesOffice of the Provincial Health OfficerBC Ministry of HealthFMScreative.com – Design, Layout,and ProductionLangley, BCAdrienne Bonfonti – Project ManagerManager of Project ResearchReporting InitiativesOffice of the Provincial Health OfficerBC Ministry of HealthBarb Callander – Copy-editingand ReferencingManager, Projects and Strategic InitiativesPopulation and Public HealthBC Ministry of HealthI am pleased to present this PHO Special Report which underscores the need to make a shiftin drug policy to protect the health and safety of British Columbians. The decriminalizationof people who are in possession of drugs for personal use is the next logical and responsiblestep we must take to keep people alive and connect them to the health and social supportsthey need.Bonnie HenryMD, MPH, FRCPCProvincial Health Officer2ACKNOWLEDGEMENTS

EXECUTIVE SUMMARYThe Provincial Health Officer (PHO) is thesenior public health official in BC, withresponsibility for providing independentadvice and public reporting to support andadvance the health of British Columbians.The following is a PHO Special Reportwritten under the authority of the PublicHealth Act, which provides an urgentrecommendation to reduce the harmsassociated with the toxic street drug supplyand the criminalization of people who usedrugs in BC. A more comprehensive PHOAnnual Report will be released in the comingmonths that examines overdose deaths,response efforts, and some related impactsof overdose deaths across the province,including a decrease in life expectancy atbirth for all British Columbians.In April 2016, in response to an ongoing,escalating crisis of illegal-drug-relatedoverdose deaths, the BC PHO declared apublic health emergency under the PublicHealth Act; a first in BC and Canada.Following this declaration, a multi-sectorresponse was launched by the provincialgovernment and its partners to keep peoplewho use drugs safe from harm. Despitecontinuous efforts in BC to resolve theoverdose crisis, and the declaration of apublic health emergency, there has beenminimal success in stopping the rising deathtoll since the crisis started, and additionalalternative solutions are warrantedimmediately. This PHO Special Reportexamines the criminalization of people whouse drugs in BC, Canada, and beyond, andbased on existing evidence, offers a singlerecommendation: decriminalization ofpeople who use drugs in BC.The Overdose Crisis in BCThe response to the overdose crisis hasbeen extensive and multi-faceted, andhas brought together local, provincial,and federal partners. The response hasinvolved engagement with people with livedexperience, public education and targetedinformation campaigns, enhanced datacollection and analyses, increased accessto evidence-based treatment for opioiduse disorder, rapid distribution of publiclyfunded naloxone to reverse overdoses,enhanced toxicological testing capability,passage of Good Samaritan legislationand other legislative changes, significantharm reduction enhancement (e.g., theestablishment of overdose preventionservices, expansion of supervisedconsumption sites and the provision ofdrug-checking services), and the creation of aseparate ministry dedicated to mental healthand addictions. Early findings of overdoseresponse strategies have shown that manylives have been saved through these efforts.The combined impact of these interventionshas been shown to have averted 60 per centof all possible overdose deaths since thedeclaration of the public health emergency.Early in the response efforts, lawenforcement throughout the provinceadopted a policy that police officers will notattend 9-1-1 calls for overdose interventionunless they are the only available firstresponders or unless police presence isspecifically requested. The purpose of thispolicy is to allay fears of arrest for drugpossession and to encourage people tocall for medical assistance in the event ofan overdose.PHO SPECIAL REPORT3

Despite these life saving activities, the BCCoroners Service reports that the numberof deaths has continued to rise and remainsat consistently high levels throughout theprovince. Overrepresented sub-populationsin these deaths are Indigenous peoplesand males age 30 to 59. The majority ofpeople who died were using drugs alone andinside. Overdose deaths in the province havebecome so pervasive that there has beena measured decrease in life expectancy atbirth for all British Columbians.One substantial factor in the ongoingoverdose crisis is BC’s highly toxic illegaldrug supply. Toxicology reports and growingnumbers of drug seizures have identifiedthat highly toxic illegally manufacturedsynthetic opioid analogues (substancesthat are chemically similar to anothersubstance; e.g., fentanyl and carfentanil areopioid analogues) are nearly completelydisplacing diverted prescription opioids(i.e., prescription medication that is soldillegally on the street) and illegal heroin inthe street drug supply. Drug testing hasfound fentanyl in varying amounts in allillegal street drugs.People use psychoactive drugs for a myriadof reasons, including self-medication forpain management (including physical,mental, and emotional pain, and trauma),to deal with anxiety, to experiment, out ofcuriosity, or to stimulate artistic endeavours.Substance use occurs on a continuum, frombeneficial and/or cultural usage throughto chronic dependence and substance usedisorder or addiction. Not all substance useis harmful; however, in the context of a toxic,unregulated illegal drug supply, unintentionaloverdose and death has become aninherent, persistent risk. People living withaddictions who are dependent on the toxicstreet supply are most at risk of death.4EXECUTIVE SUMMARYDecriminalization of PeopleWho Use DrugsThere is widespread global recognition thatthe failed “war on drugs” and the resultingcriminalization and stigmatization of peoplewho use drugs has not reduced drug usebut instead has increased health harms.The predominately criminal-justice-basedapproach that channels people who usedrugs—some of whom live with a substanceuse disorder—into the criminal justicesystem (e.g., jail sentences for possessionof a small amount of an illegal substance)does not address what is ultimately a healthissue. In addition, engagement with thecriminal justice system exposes non-violent,otherwise law-abiding people to a greatdeal of harms that they would otherwise notexperience. The societal stigma associatedwith drug use leads many to use drugs aloneand hidden, increasing their risk of dying.British Columbia cannot "treat" its way outof this overdose crisis, or "arrest" its wayout either.Many public health professionals, peoplewith lived experience, families impacted byillegal drug harms, legal scholars, drug policyexperts, and a growing number of publicsafety officials are critically re-evaluatingthe current approach of prohibition and thecriminalization of people who use controlleddrugs in Canada.In BC, there has been a shift in focus forpolice to support a harm reduction approachwhen interacting with people who use drugs;pilots operating in three cities are creatingalternative pathways for police to link peoplewho use drugs to receive treatment andother supports. Simple possession of drugsfor personal use is also subject to policediscretion; for example, the VancouverPolice Department policy on drugs prioritizesthe context of drug use rather than the

possession of drugs, and supports chargesonly if the behaviour and circumstances ofthe person using drugs is harmful to thatperson, to others, or to property.Other jurisdictions provide an evidence baseto examine alternative approaches. Notably,Portugal adopted a decriminalizationapproach to drug possession for personaluse in 2001, and this model has potentialapplications for BC. Under the Portuguesemodel, the possession of a small amountof drugs for personal use was changedfrom a criminal offence (with a potentialjail sentence) to an administrative one.Administrative offences entail sanctionsthat range from warnings, fines, bans onassociating with specific people or visitingcertain places, to removing the right tocarry a firearm and suspending the rightto practice a licensed profession that hasthe potential to endanger another person(e.g., a taxi driver or a physician). Criminalpenalties are still applicable to illegal drugmanufacturers, dealers, and traffickers.Evidence has shown that this drug policymodel, along with other interventions(e.g., harm reduction, prevention,enforcement, and treatment strategies)has led to an increase in treatment uptake,a reduction in drug-related deaths, andimportantly, no increase in drug use rates.The legal framework for illegal substanceuse in BC falls under the federal ControlledDrugs and Substances Act (CDSA). Whilelegalization and regulation of all controlleddrugs is something recommended by manyexperts, including the Health Officer’s Councilof BC, the federal government has indicatedthat they are not planning to make any furtherchanges in this regard after the legalizationof cannabis in 2018. The Minister of MentalHealth and Addictions has, however,stated that she will continue to engage inconversations with the federal government asa priority for British Columbia.As BC’s Provincial Health Officer, I have calledon the federal government to move towardregulating access to currently controlleddrugs, with a focus on harm reductionassociated with the use of those substances,as well as the harms associated with thecurrent prohibition-based regulatory regimeand its application.But in the context of the continuingoverdose crisis that is affecting familiesand communities across BC, the provincecannot wait for action at the federal level.Immediate provincial action is warranted,and I recommend that the Province of BCurgently move to decriminalize people whopossess controlled substances for personaluse. This is an important additional step tostem the tide of unprecedented deaths.Decriminalization of people who use drugscan be achieved through two provincialmechanisms. The first option is to useprovincial legislation (specifically, thePolice Act) that allows the Minister ofPublic Safety and Solicitor General to setbroad provincial priorities with respect topeople who use drugs. This could includedeclaring a public health and harm reductionapproach as a provincial priority to guidelaw enforcement in decriminalizing andde-stigmatizing people who use drugs. Thistype of approach would provide pathwaysfor police to link people to health and socialservices, and would support the use ofadministrative penalties rather than criminalcharges for simple possession. The secondoption is to develop a new regulation underthe Police Act to include a provision thatprevents any member of a police forcein BC from expending resources on theenforcement of simple possession offencesunder Section 4(1) of the CDSA.PHO SPECIAL REPORT5

1THE ILLEGAL DRUGOVERDOSE CRISIS IN BCThe Provincial Health Officer (PHO) is thesenior public health official in BC, withresponsibility to provide independentadvice and public reporting to support andadvance the health of British Columbians.This includes making recommendationsfor policies and programs that will improvehealth in the province. Illegal drug overdoseshave been increasing in BC since 2012;this increase has accelerated exponentiallysince 2015. Despite sustained efforts inBC to resolve the overdose crisis, and thedeclaration of a public health emergency,there has been minimal success in stoppingthe rising death toll since the crisis started.Alternative solutions are warrantedimmediately.The following is a PHO Special Reportwritten under the authority of the PublicHealth Act, which provides an urgentrecommendation to reduce the harmsassociated with the toxic street drug supplyand the criminalization of people who usedrugs. A more comprehensive PHO AnnualReport will be released in the comingmonths that examines overdose deaths,response efforts, and some related impactsof overdose deaths across the province,including a decrease in life expectancy atbirth for all British Columbians.a6Illegal Drug Overdoses in BCIn BC, illegal drug overdose deaths(both accidental and undetermined) andfentanyl-detecteda illegal drug overdosedeaths are regularly and publicly reportedby the BC Coroners Service.1 Illegal drugoverdose deaths include the presenceof controlled drugs (i.e., drugs identifiedby the federal government as having ahigh potential for dependence, includingillegal drugs) and prescription drugsobtained from the street supply or by other,unknown means.2, 3Illegal drug overdoses have been increasingin BC since 2012 from a baseline average of250 deaths per year.³ In 2015, however, therewas a significant increase both in numberand in geographic spread of overdosedeaths that has continued to impact everycorner of the province. As the number ofoverdose deaths continued to increaseunabated, in April 2016 BC’s PHO declareda province-wide public health emergencyunder the Public Health Act.4 This was thefirst time a public health emergency hadbeen declared at a provincial level in BCand in Canada.Declaring a public health emergency providedmore organizational power to respond to thecrisis (e.g., more timely access to data) butit has not sufficiently curbed the increaseBolded text throughout this report indicate glossary terms, which are defined in Appendix A.CHAPTER 1

in overdose deaths. Since the declarationof the public health emergency, more than3,700 British Columbians have died froma preventable overdose—as many as fourpeople a day. Overdose deaths have becomethe leading cause of unnatural death in BCsince 2016; in 2018, there were 4.5 timesmore overdose deaths than deaths frommotor vehicle crashes.5Overdose deaths are occurring among allwalks of life, across age groups, and acrossthe socio-economic spectrum; however,there is a disproportionate impact on malesage 30 to 59, and among Indigenous peoplein BC.³, 6 The vast majority of people who diefrom an overdose are using drugs alone andindoors.³ The rate of overdose in BC overallfor 2018 was 30.8 deaths per 100,000people; however, this rate varied by regionalhealth authority, ranging from a low of28.0 deaths per 100,000 people in Fraserto a high of 36.8 deaths per 100,000 peoplein Vancouver Coastal.7 While the overdosedeath rate was highest in Vancouver Coastalin 2018, Fraser reported the highest numberof overdose deaths (513) in 2018, a trendthat had been identified back to 2010.3Overdose deaths in the province havebecome so pervasive and severe thatthey have been found to contribute to ameasurable decrease in life expectancyat birth for British Columbians.b Betweenthe years 2014 and 2016, life expectancyat birth declined by 0.38 years; illegaldrug overdose deaths were responsiblefor 32 per cent of this decrease.8 Thesetroubling findings show that while noteveryone in BC may be directly impactedby the overdose crisis, the impacts oncommunities across the province affectseveryone indirectly.bBC’s Illegal Street DrugSupply is Highly ToxicIllegal street drugs have always been subjectto additives and contaminants due to theirunregulated nature. However, fentanyl,a powerful synthetic opioid that is 50 to100 times more potent than morphine,began to be detected in increasing amountsin BC after 2012. In 2012, fentanyl wasdetected in 5 per cent of illegal drugoverdose deaths; by the end of 2018,fentanyl had been detected in 85 per cent ofoverdose deaths.5 The BC Coroners Servicereports that fentanyl-related deaths appearto account for the increase in illegal drugoverdose deaths since 2012, as the numberof illegal drug overdose deaths excludingfentanyl has remained relatively stable,averaging 285 deaths per year, during thistime period.7 Fentanyl and other opioidanalogues, including carfentanil (which is100 times more potent than fentanyl), havebecome a persistent threat to the healthand safety of British Columbians whouse drugs.9Substance use occurs on a spectrum,from beneficial (e.g., social activity,cultural practices) to non-problematic(e.g., recreational or occasional use), toproblematic (where negative impactsbegin to occur because of use), to chronicdependence and addiction (where use iscompulsive and continues to occur despiteconsiderable negative impacts).10 However,due to the toxicity of BC’s illegal drug supply,there is considerable risk of overdose andoverdose death related to illegal drug use inany capacity, including use that is otherwisebeneficial or non-problematic. ife expectancy at birth is an estimate of how long, on average, a person can expect to live at birth, and it is one of the most commonLmeasures of population health and wellness. When life expectancy stagnates or fails to improve, it can be an early indication that thereis something wrong; the health care system could be weakening or there could be socio-economic circumstances impacting the healthof the population. A decline in life expectancy is cause for serious concern.PHO SPECIAL REPORT7

BC’s Response tothe Overdose CrisisThe province’s response to the overdosecrisis has focused on increasing harmreduction activities and interventions(e.g., widely distributing publiclyfunded naloxone, establishingoverdose prevention services and newsupervised consumption services, andoffering drug checking for people whouse drugs) and increasing access toevidence-based treatment (e.g., rapidaccess clinics that can initiate people ontoopioid agonist treatment, establishingclinical guidance for providers on howto best manage opioid use disorder,and increasing the range of availabletreatment options for people living withopioid addiction).Efforts to reduce stigma have encouragedpeople to view substance use as somethingthat many people—including friends,colleagues, and family members—engagein for a number of reasons, with themessage that people who use drugs arereal people and are part of our familiesand communities.c Law enforcement in BChave adopted a policy that police will notattend overdose calls unless they are theonly available first responders or unlesspolice presence has been requested. Policehave also worked with the Canada BorderServices Agency to intercept, detect, andinvestigate drugs illegally imported into theprovince. To help inform response efforts,monitoring, surveillance, and appliedresearch have been enhanced to betterunderstand the characteristics of peoplewho are at risk of an illegal drug overdose.Modeling and evaluation have shown thatthe efforts underway are successfullyworking to save lives. For example, providingc8 For more information, visit www.StopOverdoseBC.ca.CHAPTER 1free naloxone has averted hundreds ofdeaths; for every 10 naloxone kits thatare used, one death has been averted.Additional modeling is showing the samepromising findings for opioid agonisttreatment, overdose prevention services,and supervised consumption services.The combined impact of these interventionshas been shown to have averted 60 per centof all possible overdose deaths since thedeclaration of the public health emergency.This means that in the absence of theseinterventions the death toll could have been2.5 times higher—as many as 4,700 people.Unfortunately, even with these successfulinitiatives, the number of people in BC dyingfrom and vulnerable to overdose remainsunacceptably high.11Pharmaceutical Alternatives toStreet Drugs as Part of aHarm Reduction ApproachWork is being initiated in BC to establish aframework to protect the health and safetyof people in BC who use illegal drugs. Thisincludes proposed initiatives that aim toprovide pharmaceutical alternatives to streetdrugs to people at high risk of overdoseusing a public health harm reduction andhuman-rights-oriented approach. Theseinnovative and experimental programs aredesigned for people who use drugs who arenot at this time interested in or responsiveto treatment, and/or people at high riskof overdose death due to dependence onthe illegal drug supply. These programswill be closely linked to oversight by healthauthorities, the Ministry of Health, and theMinistry of Mental Health and Addictionsand will be independently and rigorouslyevaluated.

Key Messages An average of four people a daycontinue to die from overdosesdue to a highly toxic illegal drugsupply—all of which are theoreticallypreventable. Overdose deaths are so pervasiveacross the province that they arehaving a measured, negative impacton life expectancy at birth in BC,affecting all British Columbians. The province’s response to theoverdose crisis has focused onincreasing harm reduction activitiesand interventions and increasingaccess to evidence-basedtreatment. A safer supply of opioids for peoplewho are at high risk of overdose isbeing explored in BC. Efforts underway are working tosave lives; however, the number ofBritish Columbians dying from andvulnerable to overdose remainsunacceptably high.PHO SPECIAL REPORT9

2HISTORY OF CANADA’S DRUGLAWS, NATIONAL STRATEGIES,AND INTERNATIONAL DRUGCONVENTIONSCanada’s drug laws demonstrate howthe negative discourse around drug use,people who use controlled drugs, and theapplication of criminal law to address druguse has integrated into Canadian society forseveral generations. Early drug legislationwas rooted in moral panic and racism;cruel and unusual—and later found to beunconstitutional—sanctions (includingcorporal punishment) were included in theseActs, even for simple possession.¹² Thischapter provides a brief history of Canada’sdrug laws and identifies milestone strategiesand legislation over the last 110 years.Legend:Federal government drug legislationFederal government drug strategyInternational drug conventionOther key developments1908The Opium Act came into force, prohibiting unauthorized importation of opium, andprohibiting the manufacture, sale, and possession of opium for purposes other thanmedicinal. This was the first instance of drug prohibition in Canada and was aimed mainlyat dealers of opium rather than people who used it. Offences under this Act were subject toa maximum of three years in prison, and/or a fine between 50 and 1,000.¹²1911The Opium and Narcotic Drugs Act was passed in reaction to an increase in cocaineuse and resulting moral panic, the Shanghai Commission (the world’s first internationalconference to discuss drug issues), and the need to provide increased powers to police toenforce the Opium Act.¹², ¹³ The Opium and Narcotic Drugs Act added additional drugs to theSchedule, including cocaine, opium, morphine, and eucaine. The Act also provided power tothe Governor General in Council to add additional substances to the Schedule as deemednecessary in the context of the public interest, to avoid having to enact new legislation.¹²This authority still exists today.10CHAPTER 2

Between 1911 and 1960, several amendments were made to the Opium and Narcotic DrugsAct. Over 15 substances were added to the Schedule, including derivatives or salts ofcontrolled substances, cannabis, and many natural (e.g., cocoa leaf) and synthetic drugs.Additional offences were included, such as sale or distribution of a controlled substanceto a minor, obtaining drugs through multiple providers, trafficking drugs through the mailsystem, and possession of drug use equipment. Sanctions ranged from prison sentences,forced labour, corporal punishment, and an increase to the minimum fines (starting at 200)and maximum prison sentences (up to seven years).¹²The authority of police was increased to allow searches without restrictions o

use drugs in BC, Canada, and beyond, and based on existing evidence, offers a single recommendation: decriminalization of people who use drugs in BC. The Overdose Crisis in BC The response to the overdose crisis has been extensive and multi-faceted, and has brought together local, provincial, and federal partners. The response has