In sum, having outstanding criminal charges, warrants, or a criminal record for simple possession of illicit opioids, or for offences related to generating illicit income to fund street drugs, can have far-reaching consequences. It can severely limit job and career opportunities and the ability to travel internationally, and it can contribute to feelings of worthlessness and shame.
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The combined effect of these seven massive failings is staggering. Not only has the criminalization of those who use illicit drugs been a colossal failure, it’s making the opioid crisis even worse. It’s costing lives. If we were starting from scratch and looking at various options for dealing with illicit drugs, the status quo—which has no evidence to support it—would be at the bottom of the list.
All these concerns were sending up red flags in my mind. As a law clerk at the Supreme Court of Canada, as chief legal officer in the Prime Minister’s Office, and as a tenured law professor, I’ve reviewed laws for their compliance with the Canadian Charter of Rights and Freedoms. And during my investigation into the opioid crisis, I’ve learned that the laws that criminalize people who use drugs are increasing the risk of overdose and death in multiple ways—a clear indication that they may violate the Charter and are thus unconstitutional.
I met with the Pivot Legal Society lawyers, who regularly litigate tough cases at the Supreme Court, to ask their opinion. “I think the prohibition on possession is constitutionally suspect,” agreed a Pivot representative. “In the climate we’re in right now—and with the feedback we get from folks about the fact that they’re necessarily going to use at home alone because they don’t want to be apprehended—it’s hugely problematic. I don’t see how that could not be a constitutional violation. It’s constantly a matter of life and death where someone chooses to use.”
The Supreme Court has said that because federal laws allow for supervised consumption sites, the harm is reduced. But that was before the opioid crisis, and without much track record in seeing how difficult it is to get such facilities up and running. These sites don’t just face the hurdle of getting Health Canada approval; they often face opposition from local communities and governments, too. “There are so many smaller regional areas that don’t have supervised consumption, where even talking about supervised consumption is practically illegal,” said Pivot. “What we learned from the overdose prevention sites is it takes a tent and a bucket of naloxone—and that’s what you do. The exemption process isn’t sufficient to meet that need.” And so, in the context of these new facts, a Charter challenge to the criminalization of simple possession of illicit drugs is ripe for the making. Absent political leadership, it may well be the courts that ultimately right the wrong of criminalizing people who use drugs, but that possibility seems far off as people’s safety and lives continue to be at risk.
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“When I talk to everybody else in the field, whether it’s police or health, we collectively say, ‘What else are we not doing? What can we do differently?’ And that’s when conversations about decriminalization and legalization are really appropriate. I think it’s appropriate for a democracy to look at all options,” said Staff Sergeant Conor King.
Having seen the futility of punishing people who are addicted to opioids, the police in Vancouver, Victoria, and Surrey say they’re no longer actively prosecuting them for simple possession—although there’s evidence at the provincial level that people are still being charged with the offence. Yet medical and public health experts, activists, and drug users say it’s not enough, and that decriminalization of possession is needed to reduce stigma, reduce barriers to support and treatment, and treat opioid use disorder like any other medical condition.
“I’d say to really deal with the problem we need to decriminalize drugs,” said Dr. Mark Tyndall. “We need to have a hard conversation about what damage we’re doing to people and society by continuing to criminalize drug use, which we know doesn’t stop people from using drugs. It fills our criminal justice system. It just ruins people’s lives.
“We don’t want to needlessly punish people, but we don’t want to start promoting this. We need to still regulate it and tightly control it.”
Dr. Bonnie Henry agrees. “Decriminalization of people who use drugs is absolutely, I think, where we need to go.”
It’s not just the federal criminal law that punishes and ostracizes people who use drugs. You can see the same policy play out at other levels of government, too. “We need to decriminalize everything,” said Westfall. “Not just at the federal level, but it needs to be reflected at provincial and local levels as well. We have these anti–harm reduction ordinances and bylaws. Abbotsford had one a couple of years ago. These things basically blunt the impact of any sort of change that happens federally.”
Prohibition is a clever deception. It promises to stop something bad but instead causes more harm in its wake. The law has become a fatal stumbling block to those recovering from their illicit drug use. But if simple possession of illicit drugs were no longer a crime, wouldn’t more people use drugs?
“I don’t see a problem with that, because that’s not going to increase use,” said Dr. Neil Boyd, a professor of criminology at Simon Fraser University. “It’s just going to finally admit that this whole idea of criminalizing drugs is a bit of a mistake. It’s a public health problem. It’s not a moral issue.”
And it’s important to point out that decriminalizing illicit drugs and providing people who have opioid use disorder with a “safe supply” aren’t the same as legalizing illicit drugs. Legalization would allow anyone of age to purchase illicit drugs. While there are some advocates who’d like to see that policy model adopted, it represented a very small minority of the people I interviewed. There was, however, significant support for decriminalization combined with a safe supply for those who would otherwise use contaminated street drugs.
What about occasional or recreational drug users? Would decriminalization affect them? To start with, it’s the regular users—defined by continued drug use despite the risk of negative consequences, including the threat of a criminal record, fine, and imprisonment—who comprise the vast majority of people who are overdosing and dying. They need to be our primary concern. As for occasional or recreational drug users, if the risk of a fatal overdose isn’t going to deter them, the threat of a fine and some jail time is unlikely to have any impact. And since criminalization encourages all drug users to use in secret, where they’re at greater risk of dying from an overdose, decriminalization makes sense for that group as well.
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It’s not just Canada that’s grappling with the question of how to address illicit drugs and the devastating toll they’re taking on our society. The vast majority of countries are firmly entrenched in a drug prohibitionist model. How well is that working? The day I started writing this chapter, the United Nations Office on Drugs and Crime (UNODC) released its World Drug Report 2018. The report found that drug seizures have massively increased around the world (including a record 91 tons of heroin seized worldwide in just one year). Of course, to respond to this, the production of illicit drugs has hit record levels, according to the UNODC. As more drugs are seized, more are supplied. That’s been a major reason for the rise in synthetic illicit drugs made in labs, like fentanyl. And as we saw in Chapter 4, the Iron Law of Prohibition means that the greater the enforcement, the more potent the drugs we’re going to continue to see. Experts at the UNODC concluded that the “range of drugs and drug markets are expanding and diversifying as never before.” In other words, the global war on drugs amounts to little more than “security theatre”—incredibly costly countermeasures that look like a lot is being done to combat illicit narcotics, while achieving no practical benefits and actually making things worse.
As Jordan Westfall said, we can keep playing this game—we’ve been
playing it for a century—and things will just keep getting worse. And they are. The definition of insanity, it’s often said, is doing the same thing over and over and expecting different results. By that metric, drug prohibition is an insane policy. It was developed for the wrong reasons and it doesn’t work. It’s time to admit that it’s a total failure and causing untold harm. And not only does prohibition not work, it’s also expensive. It costs taxpayers $116,000 a year to keep someone in federal prison in Canada, yet the return on investment in treatment is a net benefit, reducing both criminal justice and healthcare costs. So the status quo isn’t merely ineffective, it’s also costly.
The UNODC reported that around the world, 1 in 20 people between 15 and 64 years of age used drugs at least once in the past year. Some 450,000 of them died as a result of drug use in 2015. Fatal drug overdoses are so numerous that, for the first time in half a century, life expectancy in the United States went down for two consecutive years. There’s even a drug epidemic underway in Africa with another synthetic opioid, called tramadol. Tomorrow it will be a different substance we won’t have heard of until it’s too late. Our children and grandchildren are going to grow up and ask us what we were thinking. I have no doubt that history will judge drug prohibition harshly.
Billions upon billions of dollars continue to be spent worldwide on criminal enforcement against illicit drugs, with massive violence in the streets as rival traffickers fight each other for turf and battle against increasingly militarized police forces. Prohibition has fuelled civil wars, corruption, and regional instability. The war on drugs hasn’t in the least stopped these substances from reaching the streets, but it has filled prisons across the globe. In the United States it has produced such mass incarceration that half of all federal inmates are imprisoned on drug-related charges. Yet illicit drugs are just as available and more potent than ever. At the same time, fewer than one in six people with drug use disorders are receiving treatment around the world—and that’s a generous estimate.
As one global campaign argues, “Support, don’t punish”—which is exactly the approach some countries are beginning to take: treating substance use as a health and social issue rather than as a criminal and moral one. It’s a relatively new model that’s already demonstrated a lot of potential, and that should give Canada the confidence to move ahead in a similar way.
Many of the people I interviewed held up Portugal as an example of a country that has adopted a promising new drug policy. In the late 1990s, in response to an increase in intravenous heroin use and rising rates of infectious diseases, Portugal launched a review of its entire approach to dealing with illicit drugs. Prohibition had failed. It was time for a humane approach to people who use drugs. The aim would be to prevent drug use and abuse by decriminalizing personal drug use and possession, pursuing prevention initiatives, expanding and improving treatment options, and offering treatment instead of imprisonment for drug users.
On July 1, 2001, the Portuguese government took the definitive step of decriminalizing the personal acquisition, possession, and use of small quantities of illicit drugs (including cocaine and heroin), instead making it an administrative offence. Those found in possession of such small quantities are referred within 72 hours to a “Commission for the Dissuasion of Drug Addiction” that includes lawyers, social workers, and medical professionals. If those found in possession aren’t dependent on drugs, the commission can provisionally suspend proceedings and order them to take a psychological or educational program; it can impose such sanctions as warnings, community service, suspension of professional licences, and banishment from certain places; or it can require them to pay a fine. If those found in possession are dependent on drugs, the commission can recommend a treatment program instead of a sanction. Imprisonment isn’t an option. And although Portugal has decriminalized drugs, it did not legalize them to enable public access to illicit drugs. Illicit drug manufacturing and drug trafficking remain crimes.
Has this novel approach worked?
Like every controversial policy change, it has its supporters and its detractors. When I began to read the research on the Portugal model, I quickly discovered two very different narratives. One of the first high-profile reports declared it a “resounding success,” but soon afterwards a competing series of blog postings and website articles claimed it to be a “disastrous failure.” The former was written by an American constitutional lawyer and published by the CATO Institute, a U.S.-based libertarian think tank founded by Charles G. Koch and funded by the Koch brothers. The latter were written by a drug abstinence–based treatment provider and published by the Association for a Drug Free Portugal. Neither of these accounts appeared in peer-reviewed journals, but they have driven intense international attention and debate about the Portugal model.
I knew I needed to find unbiased, scientifically validated findings. It turns out that there is compelling evidence in peer-reviewed journals of the Portugal model’s success, on balance. It’s not without its blemishes, though. Still, knowing that gives us a more realistic perspective—after all, even the best life-saving medications can have side effects. In order to make an informed decision, we just need to know what they are.
Dr. Caitlin Hughes, a criminologist and research fellow at the National Drug and Alcohol Research Centre at the University of New South Wales (Australia), and Dr. Alex Stevens, a criminal justice professor at the University of Kent (U.K.), did the tough but necessary work of sifting through the competing claims about the Portugal model. Hughes and Stevens found that both sides were guilty of some selective use of data and made claims that weren’t supported by the available evidence. As well, given that many factors can affect outcomes, we can’t assume that they’re entirely attributable to changes in law and policy. But on the whole, Hughes and Stevens’s research rejects the fearful speculation that decriminalization will make things worse. Instead, they found that Portugal “may offer a model for other nations that wish to provide less punitive, more integrated and effective responses to drug use.”
Most notably, drug-induced deaths declined significantly after decriminalization. The best available data from the National Statistics Institute in Portugal reveals a massive drop: from almost 80 deaths in 2001 to just 20 in 2008, representing an almost 75% reduction in the seven years after decriminalization. And the decline in opioid-related overdose deaths has been a major part of this good news story. Why did it happen?
“The fall in deaths related to opiates has been linked to the big increase in the numbers of heroin users who have entered substitution treatment [such as methadone or buprenorphine], as substitution treatment has repeatedly been found to be effective in reducing the mortality of opiate users. It may also be another indicator of falling levels of heroin use,” wrote Hughes and Stevens.
Instead of threatening people with imprisonment, authorities are now connecting them with treatments to help them manage the horrific symptoms of withdrawal. That makes a lot of sense, given what I’d learned about substance use disorders. Drug use is being treated not as a crime but as a health issue.
But what about the broader society? Has decriminalization increased or decreased drug use in Portugal? Sifting through the statistical debates, Hughes and Stevens found that while there appears to have been some short-term increases in drug use by people who were likely experimenting (“lifetime use” rates increased), rates of discontinuance have increased too, meaning that fewer people who’ve tried drugs are continuing to use them. Between 2001 (when decriminalization began) and 2007, recent and current drug use increased in older age groups but declined in the critical 15- to 24-year-old population (those who are considered harbingers of drug use rates). Overall, these mixed results are seen as a net benefit. And when we look closer at which drugs are involved, the picture becomes more compelling.
There has been a significant reduction in the percentage of people referred to the Commissions for the Dissuasion of Drug Addicti
on for heroin in the years after decriminalization. In 2001, when these commissions first started receiving referrals as part of the decriminalization framework, 47% of people were referred for cannabis, 33% for heroin, and 5% for cocaine. By 2005, 65% of people were referred for cannabis, 15% for heroin (a more than 50% cut), and 6% for cocaine. It’s another indicator that decriminalization hasn’t led to an increase in “hard drug” use that some speculated would occur.
There are a few aspects of the Portugal model, however, that suggest we can’t simply copy and paste it into Canada and expect the opioid crisis to be solved overnight. First, Portugal did not adopt its approach in the midst of an emergency like our own, one that’s been driven by a contaminated illicit drug supply. More will be needed here, particularly in the provision of a “safe” supply of drugs to those who are addicted and would otherwise be at risk of an illicit drug overdose.
Second, we have to be careful not to simply import policy models from other jurisdictions with major economic, social, and cultural differences from our own and expect them to work exactly the same here. For instance, the significant challenges faced by Indigenous Canadians during the opioid crisis require particular attention and a specialized response.
Third, the Portugal model still involves a degree of coercion—if a person who’s addicted to illicit drugs isn’t willing to enter treatment they can face sanctions, although it’s unclear to what extent this is happening in practice. I noted in Chapter 12 that forced treatment doesn’t generally work, nor is it consistent with the nature of ongoing illicit drug use as a medical condition. And in some circumstances, Portugal also fines people who use drugs. As I recounted at the start of this chapter, I saw firsthand with my own client, Jim, that fining a street-level drug user is ridiculous: it makes no sense to compel someone to pay a fine that they can’t afford and that doesn’t prove to be any kind of deterrent.
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