* * *
——
When I started researching the opioid crisis, I promised myself to keep an open mind. It was already clear to me that the status quo had been unable to stem the tide of illicit drug overdose deaths. And I knew that one of the most controversial and challenging issues I’d eventually have to tackle was whether we should decriminalize illicit drugs—making it no longer an offence to possess them but still a crime to manufacture, import, or traffic in them.
Now, as I stepped back and looked at everything I’d learned and experienced over the past few months, it became clear that our current prohibitionist approach, rather than lessening the opioid crisis, is actually exacerbating it. It’s having a devastating impact on people who use illicit drugs, most notably on regular users who have opioid use disorder but also on those who use drugs occasionally or recreationally.
My investigation revealed at least seven fatal flaws with criminalizing people who use drugs. Together, they convinced me that, as part of a new approach, we need to immediately repeal simple possession of illicit drugs as a criminal offence. These fatal flaws are as follows.
1. Punishing people for having substance use disorders
“The impact of all these drugs being illegal is, of course, causing harm to addicts—and it’s all based on our traditional assumption that being an addict is a crime, so it’s a bad thing and it should be punished,” said Judge Elisabeth Burgess. “But if you look at people who are using [illicit drugs] now, you’d have to be dead yourself not to care about the harm it’s caused to the people. We’re forcing people underground, obviously, because they can’t get [them].”
Criminal offences exist to punish blameworthy conduct. But those with opioid use disorder lack the ability to make an effective choice not to engage in this behaviour. Indeed, as we saw in Chapter 3, that’s the very definition of opioid use disorder as understood by medical professionals—an inability to stop using on their own, even if they desperately want to and despite the potential negative consequences.
People with substance use disorders deserve our compassion, not our condemnation. They need our love, respect, and understanding, not the full weight of the state crashing down on them when they’re at their lowest low. The pain and suffering in their lives is real and in some cases unimaginable. But our criminal laws ignore all this and also don’t deter people from using. As we’ll see, they just drive people towards riskier drug use.
Remember the role played by genetics and factors like childhood trauma in opioid use disorder? Trauma such as that experienced by the survivors of residential schools and the Sixties Scoop. Trauma such as that experienced by the Indigenous children who saw their own mother murdered and were left with her body for days. Trauma that, for most, is unfathomable.
Indeed, our laws prohibiting opioid use go back to 1884, a time that pre-dates modern understanding of brain function and addiction. We now know that habitual use of these substances is a medical—not a moral—issue. Our laws need to be updated to reflect that reality.
“It makes no sense to arrest somebody who has a medical problem and often a mental health problem along with it and a whole bunch of other things,” said Dr. Bonnie Henry, BC’s chief medical officer.
“Many, many families have seen their loved ones be incarcerated for accessing or possessing the drugs they need to not withdraw. That’s just wrong. Wrong on all levels,” said Leslie McBain.
And the criminal justice system doesn’t just punish people for drug possession; in a wide range of offences it also routinely imposes conditions that require people to abstain from using illicit drugs altogether. And for someone with a substance use disorder, an abstinence order is an unrealistic, even impossible demand, one that only sets them up for failure. When they use again or relapse and breach those conditions they’re hit with a new offence, typically leading to even greater punishment. It’s a cascading effect that leads to a potentially endless cycle of criminalization with no way out—at tremendous cost to taxpayers as well as the person whose life is now firmly entrenched in the criminal justice system. And if they do somehow manage to respect a court abstinence order, their reduced tolerance puts them at significantly greater risk of dying when they do eventually relapse.
A stunning 70% of federal offenders are admitted to prison with serious alcohol and drug abuse problems; 34% of these were injection drug users prior to being incarcerated. Our prisons have become holding facilities for those with mental health issues, substance use disorders, and Indigenous people. Canada’s criminal justice system is failing on multiple levels—and a big part of that stems from criminalizing people who use drugs. As Jordan Westfall, president of the Canadian Association of People Who Use Drugs, told me, “A lot of people get pushed in, not on drug charges, but they get pre-trial conditions or bail charges. Stuff like that…. That whole aspect of the criminal justice system needs to be reformed because it just leads people into like a cycle of going in and out, in and out. It’s just entirely needless.”
2. Fuelling stigma
“As long as it’s criminal, it’s something to do in shame, in private, not to tell anyone,” said Jennifer Breakspear. “Hiding is what’s going to drive people to do it in secret. Do it where there’s no one around to help them. As long as it’s illegal, people are afraid to share that piece of themselves and therefore afraid to get any help. No one knows to give them the help.”
Sociologists believe that stigma flows from three main sources: family and friends, social agencies, and laws and governmental policies. Indeed, the Supreme Court of Canada has recognized that all criminal offences generate stigma—that is, being labelled by the state and the community with “moral opprobrium,” meaning contempt, condemnation, shame, disgrace, and humiliation. Is that really the message the law should be sending to people with substance use disorders in the twenty-first century? That they’re worthless and deserving of our vitriol?
“I do believe that stigma drives a lot of this underground,” said Clayton Pecknold, assistant deputy minister and director of police services in BC. “I think it also colours the way the broader community sometimes looks at this. I think there’s a horrible sector of society that sometimes thinks that people are expendable, that it’s their fault they’re addicted. They couldn’t be more wrong.”
“The stigma and discrimination impacts you in so many different ways,” said Westfall. “Our government talks about wanting to destigmatize, but you can’t really do that—it’s still a criminal act at the end of the day. Until they address that, no stigma effort, no poster campaign is going to make a difference.”
3. Endangering health and lives
“There’s really good literature that shows pretty clearly that the risk of criminal sanctions leads to people using in kind of clandestine ways, and the biggest risk factor for overdose is people using alone,” said Dr. Evan Wood. “At the individual level, [a charge for] possession—I think it’s counterproductive because it doesn’t do anything to stop people from using and it just changes behaviour in terms of riskier use.”
This is the deadly consequence of criminalization: driving people to use illicit substances alone, thereby putting them at a substantially greater risk of dying from an overdose. That includes both regular users who have opioid use disorder and people who occasionally or recreationally use illicit drugs. “If you’re living in a place where you think someone might call the police on you because you’re using drugs, that further stigmatizes that individual,” said Dr. Bonnie Henry. “It puts them underground. It puts them at risk for overdose and death. So that’s where it concerns me.”
“They don’t want to come forward. They’re basically hiding,” said Westfall. “They’re dying inside and alone a lot of times. We talk about ways to get people out? Well, it’s illegal. Of course people are going to use by themselves in the relative safety of their own homes.”
There are also concern
s that homeless people who don’t have an indoor residence engage in riskier activity—for example, quickly taking their entire hit rather than progressively dosing up—out of fear of police involvement. “There’s lots of literature showing how people will rush and take high risk,” said Dr. Wood. “They don’t want to have an interaction with law enforcement when using on the streets, or the same thing with not wanting to have negative interaction with the street predators. They use in a rushed way. It just really doesn’t achieve its intended effect and obviously has unintended consequences.”
There are other concrete ways that our criminal justice system and laws are running afoul of the best medical evidence about how to treat people with opioid use disorder. A classic example is with respect to “drug paraphernalia,” which includes sterile syringes. Most courts have something called a “pick list” for lawyers and judges to use in coming up with standardized conditions to impose on accused persons and offenders while they’re at large in the community. The BC Provincial Court’s most recent pick list includes the following suggestion: “You must not possess drug paraphernalia including but not limited to pipes, rolling papers and syringes.” That’s problematic for several reasons.
As a Pivot Legal Society representative put it, “Knowing after decades and decades that harm reduction works—and that we can stop the spread of HIV and hepatitis C by provision of clean syringes and by doing needle exchange programs and needle distribution programs—and you’re still allowed to tell somebody, ‘You’re not allowed to hold drug paraphernalia’? And that includes harm reduction equipment that people need, like clean syringes.” The prohibition on possessing drug paraphernalia would even punish someone for having a take-home naloxone kit, which contains syringes—something that could save their life or the life of someone overdosing nearby in an emergency. “It’s at odds with public health efforts. It means that police officers can literally be like ‘Thanks, Health, for spending millions to make sure people have the harm reduction they need. We’re just going to confiscate them.’ ”
Additionally, Canada’s federal Good Samaritan Drug Overdose Act (which we looked at in Chapter 9) doesn’t protect people from being punished for possessing drug paraphernalia (e.g., syringes) when they’re under such a court-ordered prohibition for charges other than simple drug possession (e.g., theft). That clearly needs to change. Many U.S. states include exemptions for drug paraphernalia in their Good Samaritan laws.
Finally, as we saw in Chapter 10, a mountain of evidence supports making supervised consumption sites more widespread. The only reason they require Health Canada approval is the existence of the drug possession offence. In other words, the criminal offence of simple possession of illicit drugs presents an impediment to providing life-saving medical interventions. And as a result there are still far too few of these sites—a fact that has spurred some provinces, like BC and Ontario, to approve their own overdose prevention sites, effectively ignoring federal laws in order to save lives.
4. Isolating people who use drugs from support
Criminalizing those who use drugs cuts them off from receiving support. This can happen in myriad ways, including incarceration. While in jail, those who use illicit drugs (which are still accessible in prisons) don’t have equal access to medical interventions and quality addiction treatment options. They should—especially if one of our goals is that they rehabilitate. Coroners’ inquests in both BC and Ontario have flagged this as a major problem, one that’s putting people at risk of dying from illicit overdoses while they’re imprisoned and upon their eventual release. It’s also now the subject of lawsuits arguing that failing to provide inmates with access to harm reduction services (like clean syringes) puts their health at risk and is discriminatory, contrary to the Charter.
Another example of how criminalization cuts people off from support is “red zoning,” or the imposition of geographic restrictions, often on those who are released “on conditions.” These red zones banish people from a certain area, typically in the vicinity where they allegedly committed an offence or are seen as being a nuisance. However, these same areas can include support services that may keep them alive. But if they enter the red zone they’ll face more serious criminal penalties.
“For us, it puts our lives into chaos,” said Westfall. “It polices where people can go in certain places, like red zoning so people aren’t able to access healthcare or go to Insite or use an overdose prevention site, because it might be on the same block that they’re red zoned at. Stuff like this, it just complicates things for us trying to access all kinds of services.”
5. Fostering other criminal and risky behaviours
For many people who have opioid use disorder, finding enough money to pay for illicit drugs is a costly and risky proposition. They’re charged monopoly prices and they have to deal with drug traffickers, who can be predatory and violent. In Chapter 11, we saw that the patients in the NAOMI project were spending an average of US$1200 per month on street drugs before the study—that’s 2.5 times what monthly income assistance provides—and that’s not accounting for the money needed for food, shelter, or clothing.
To generate the income to pay drug dealers, some people who are addicted to opioids turn to property crime and prostitution, and even become street-level dealers themselves (reportedly getting one hit as payment for every ten they sell, according to a criminal defence lawyer I interviewed). Property theft typically generates a 10 to 20% return, meaning money paid to dealers generated from stolen goods is just the tip of the iceberg in terms of the cost of prohibition to society. It’s one of the likely reasons why thefts from vehicles have skyrocketed in Vancouver in recent years.
Judge Burgess has sentenced homeless people with opioid addictions who’ve stolen items costing $8000 from luxury stores like Holt Renfrew only to sell them in open-air markets for as low as $10 (the street price for a “half point” or 0.05 grams of heroin). “These people are struggling—and a lot of them are addicts and a lot of them, you know, they cause problems in the community,” she told me. “They steal incessantly, and businesses shouldn’t have to deal with that, but you can’t just take that in isolation and punish them for it.”
“The fact that a substance is criminalized and use of that substance is criminalized—it leads to behaviours and identities of people being criminalized,” said Chris Buchner. “You see people who are living the most traumatic, violent lives, and people often think, ‘That’s what happens if you use drugs.’ No. That’s what happens if you’re dependent on a substance that makes you a criminal—and then your whole life and identity and behaviour is criminalized, and you have no access to resources and jobs.”
6. Increasing the risk of overdose death upon release from prison
We saw in Chapter 7 that those who’ve recently been released from prison are at significantly greater risk of overdosing and dying owing to their reduced tolerance to illicit opioids. The corrections system is actually setting people up for reoffending and a premature death—and this after they’ve already “paid their debt” to society.
“For opioid dependent inmates released from a correctional facility, they would be provided a prescription for Suboxone to be filled in the community. If an inmate was released from court, they would not return to the correctional facility and may end up being released without a prescription,” wrote Michael Egilson, the presiding coroner who investigated Brandon Jansen’s death. “When inmates were released, they had a two-week waiting period to obtain social assistance. For most, that meant not being eligible for Pharmacare, requiring the inmate to pay for the Suboxone. This increased the likelihood that opioid dependent inmates would seek out illicit opioids and engage in criminal activity in order to obtain funds.”
“They don’t do any treatment while in jail,” said Mark Gervin, director of legal services at the UBC Indigenous Community Legal Clinic. “They’ve got a captive audience and they don’t tr
eat them. They don’t help them in any form or fashion. Ultimately you keep a guy in jail and he hasn’t been able to use heroin, or fentanyl, and he gets back out on the street, the higher the chance that he’s going to overdose. Because when he went in he was using X, and his body can no longer tolerate X or even half of X. Then they might go out and, boom, they’re dead.”
7. Raising barriers to rehabilitation
“We need to get people in recovery, and if you criminalize you’re basically cutting the opportunity for any of those people to recover,” said Dr. Mark Tyndall. “If you make it illegal, if you’re 30 years old with no teeth and a criminal record, try reintegrating into society. We’ve really damaged people by thinking we’re doing them a favour by being tough on drugs and being a big deterrent. We’ve really, really destroyed a lot of people’s lives.”
One of the key objectives of criminal law is rehabilitation of offenders. Yet criminalizing people with substance use disorders makes their journey towards recovery more difficult in numerous ways.
The experience of imprisonment can itself be devastating for someone who’s already endured a lifetime of trauma. “If a person goes to jail, then gets out of jail, everything falls apart in terms of housing, in terms of jobs,” Leslie McBain told me. “It’s a huge thing.”
And the significance of a criminal record cannot be understated. It’s a real barrier for those seeking jobs that require a clean record. “We definitely need to change policy on the implementation of criminal records associated with drug substances in the past,” said Dr. Paul Hasselback. “Once someone is labelled, that precludes access to some of the supports like meaningful employment. Criminal record checks and all sorts of things potentially can limit what the future is going to look like. A lot of people report back that they’ve tried very hard to lead a drug-free life, but these obstacles they run into actually drive them back into utilization. It’s tragic.”
Overdose Page 19
