Transcript
Speaker: Hello and welcome to today's episode of Red Eye. I'm Jane Williams. On the podcast today, I speak with lawyer Caitlin Shane about BC's drug decriminalization policy, which came into effect on January 31st.
Speaker: Starting January 31st, the province of B .C. decriminalized the personal possession of certain types and amounts of drugs for people in B .C. The question is, which drugs and in what amounts? Pivot Legal and Van Do have collaborated on a Know Your Rights card
Speaker: to help people figure out the answer to this question. I'm joined now by Caitlin Shane. She's a staff lawyer at Pivot Legal Society and leads Pivot's Drug Policy Campaign. Hello, Caitlin. Hi. Thanks for having me.
Speaker: It's a pleasure to have you on the show. You've got the most important question front and center on the card, and that is, are you protected by BC's decriminalization policy? There's one yes and a lot of nos. Who is protected?
Speaker: The policy protects people aged 18 and over who possess for their own use certain quantities of certain substances. So up to a total of 2 .5 grams cumulative, meaning that you can have various types of drugs up to that total, or you can have a single
Speaker: drug up to that total, but the cumulative threshold is 2 .5 grams. And the drugs that are covered are opioids, cocaine, methamphetamines, and MDMA. So the policy does not apply to youth. It does not apply to people outside of BC. And potentially, depending on how municipalities react, people may not be able to consume in public locations, but that remains to be seen.
Speaker: What commonly used drugs are missing from that list? There are a number of drugs that are missing. I would say the most significant is benzodiazepines. So that's a class of depressants, things like Valium.
Speaker: Ativan. So these are substances that at this time are significantly accounting for a number of fatal overdoses. They are very much within the illicit drug supply. People sometimes know that they're getting benzos, but sometimes they don't. And the fact that they are not included in this exemption is a pretty big oversight, I would say.
Speaker: And the 2 .5 grams, how much is that compared to how much someone might use in a day of any of those drugs?
Speaker: It very much depends on the person who's using drugs. So 2 .5 grams may be great for some people, but certainly for the folks that I work with and collaborate with, it is nowhere near the amount that they are possessing or using on a daily basis. So I think it's also really important to realize that
Speaker: drug use and drug possession are two different things. And so what a person possesses might be what they purchase. And we know that people don't necessarily purchase singular quantities of substances, they might purchase larger quantities to last them for say a week or a month or however long. And that's because not everyone has regular access to their dealers. So there's a number of people that have
Speaker: expressed concern a lot of folks in rural and remote communities who say, I don't see my dealer every day. I don't have regular access to my dealer. So when I do, I purchase a larger quantity or people with mobility issues who can't necessarily get out every single day to make their purchase. They'll purchase in larger quantities or people that purchase for friends and family for safety reasons. There's lots of reasons why people purchase larger quantities than 2 .5 grams.
Speaker: And for those people, this policy will not protect them. I can't think of too much that we purchase on a regular basis that we would only purchase in the amount for one day. I mean, if you think about milk or toilet paper or bread or
Speaker: Alcohol, absolutely. I mean, it seems pretty simple when you frame it that way. But I think a lot of people have a hard time understanding that that's how things work. And that just signifies sort of a lack of understanding or awareness oftentimes on the part of government or police or just people in the community not really necessarily understanding how people make purchasing decisions.
Speaker: Now BC asked for a limit of 4 .5 grams, so considerably more. And how did we end up with 2 .5?
Speaker: Well, I'm glad you raised that because initially, actually, there was this core planning table that Pivot sat on along with our friends at the Vancouver Area Network of Drug Users, other drug user -led groups, health professionals, health authorities, police were on there. And we had initially advocated for 4 .5 grams per individual substance. So not a cumulative threshold, but 4 .5 grams
Speaker: per substance. We were told that was what we were getting and we were quite happy with that. But then literally at the last minute, the day before the exemption was submitted to Health Canada,
Speaker: The Ministry of Mental Health and Addictions flipped the switch on us and said, actually, it's going to be 4 .5 grams cumulative that we request. So that was a big surprise to us. And we were all quite disappointed about that, with the exception of police. And then Health Canada reviewed that application and came back with a quantity of 2 .5 grams cumulative
Speaker: And our understanding of why that number came down so significantly was the pressure of police. Police on the core planning table were consistently advocating for a threshold quantity of one gram, which is somewhat absurd. And we know that they were consistently pressuring Health Canada to go far lower than 4 .5 grams. So our hunch is that the 2 .5 gram threshold, which
Speaker: we don't see any sort of scientific or medical basis for it, is a symptom of police pressure. What are some of the situations that you detail on the card in the very long list of no's? No, you're not protected. So you're not protected if you possess a substance that falls outside of those four classes of substances. So if you possess benzodiazepines and you are
Speaker: intercepted by police and you admit that you have benzodiazepines, you're not protected by the policy. If you're under the age of 18, you're not protected by the policy. If you're outside of BC, you're not protected. If you are doing anything with those substances besides possessing them, so if you're splitting or sharing or trafficking or virtually any other drug -related offense, the Controlled Drugs and Substances Act still applies. Those are just a few of the examples.
Speaker: How is it possible to tell that someone who has drugs in their possession has them for the purposes of trafficking or sharing? That's a really good question. So currently, the Controlled Drugs and Substances Act makes no legal quantity distinction between possession and possession for the purposes of trafficking. Historically, police have looked at things like the quantity that one possesses
Speaker: in addition to the presence of baggies or scales or cell phones with phone numbers, they kind of look to all of these various factors to determine that something is possession for the purposes of trafficking over possession.
Speaker: Now that we have this threshold quantity of 2 .5 grams, it's not to say that anyone who possesses more than 2 .5 grams is automatically going to be found guilty of possession for the purposes of trafficking, but we are certainly concerned that this line in the sand will be sort of the personal threshold that police consider when they're making these evaluations of possession versus possession for the purposes of trafficking.
Speaker: There's a reminder on the card that you don't need to identify yourself to police unless you're being arrested or you're driving or you're getting a ticket. Is this an important change?
Speaker: No, that's sort of always been the status of the law, but it's always good to remind people of these rights because the fact is that when police approach people, there's oftentimes an automatic sense on behalf of the person that they're being detained. There's a sort of psychological detention that courts have recognized people experience and particularly historically marginalized communities and ongoing marginalized communities.
Speaker: people who use drugs, poor people, black indigenous people of color, the point in time at which they believe they are being detained, which coincides with the actual moment of detention, if you think you're being detained, that's sort of when the legal detention takes place. That occurs much sooner for certain groups who have ongoing frustrating relationships with police.
Speaker: What happens if the answer to that question is, yes, you are protected. What will the police do when they determine that? So police have been instructed in the exemption to issue a referral card to people who possess drugs, but who are protected by the policy. And that referral card varies from health authority to health authority, but effectively,
Speaker: it lists resources that people who use drugs can allegedly access. Now, part of our concern with that is the mere presence of police is enough to drive drug use underground, to make people fear police. So we wanted no interaction. If you are doing something that is arguably decriminalized, it's no longer a criminal offense, then there shouldn't be a door left open for police to engage.
Speaker: Nonetheless, they have a mandate to issue these referral cards. They cannot require you to access those services, but they can give you those cards. We have already heard that police in Nelson are going outside their mandate and actually giving stacks of these cards to drug users and telling them to give them out to others in the community. That is outside their mandate. Their mandate clearly says, if you interact with a person who is using drugs, who's possessing drugs, you give them the card,
Speaker: You cannot require them to go to services unless they ask for assistance in getting to those services. That's another story, but you cannot compel them. I guess any time that there is discretion for police in a policy, then you have to be concerned about racial profiling. Absolutely. And that's, you know, a real concern that we've had this entire time about not only the presence of police in developing this policy,
Speaker: But the significant discretion that police continue to have, whether it is to discern between possession and possession for the purposes of trafficking, whether it's to go up and start speaking to people who use drugs, asking them questions, street checks, that sort of thing. There's a well -established history of police targeting Black, Indigenous, and people of color and poor communities. And we have no reason to think that that's going to stop with this policy.
Speaker: I was reading in the news this week that Campbell River on Vancouver Island is about to adopt a new bylaw banning the consumption of drugs, these drugs that are covered by the decriminalization policy on municipal property. And there's a penalty of $200 for people who use drugs in parks or city facilities. Do they have the authority to do that?
Speaker: So in this instance, Campbell River had a legal obligation because they were contemplating passing and ultimately adopted a bylaw that impacts public health. They had a legal responsibility to first seek the approval of the provincial minister of health.
Speaker: And second, to consult with the regional health board or the medical health officer in their jurisdiction. They did neither of those things. In fact, when the medical health officer attempted to issue them,
Speaker: a letter outlining her concerns about these bylaws with respect to public health, they denied acceptance of that letter. So in that sense, the bylaws arguably illegally passed on a procedural basis. There's a bigger question about the ability of municipalities to regulate things like public consumption. And I know a number of people have drawn comparisons to municipal bylaws that prohibit things like
Speaker: public intoxication or public consumption of alcohol or even cigarettes. And we say that this is different, namely on the basis of its particular relationship to public health. BC has been in a declared public health emergency since 2016. The Ministry of Mental Health and Addictions passed this policy in light of the public health emergency related to
Speaker: illicit drug overdoses. And this bylaw came into effect just days before that policy.
Speaker: took effect. So it is related to public health in a particular way. People who consume alcohol and cigarettes, at least they have access to a regulated supply of the product that they consume. People who use drugs don't have that benefit. They're relying on an illicit drug market caused by government policy.
Speaker: And they are dying because of criminalization. And so this bylaw goes to public health in a way that those other bylaws do not. It gives rise to special requirements to seek the input of public health officials. And the city didn't do that. There's a consensus among advocates and people who use drugs that this policy won't end the toxic drug crisis. And BC's Chief Coroner agrees
Speaker: What could be done tomorrow to save people's lives?
Speaker: What we really need in addition to decriminalization is a legally regulated supply of drugs. So the fact that a person no longer faces criminal sanctions for possessing drugs today doesn't mean that overnight they suddenly have access to a regulated drug supply. And so we really need to see action to ensure that we have regulation that
Speaker: you know, standardizes products, ensures that they are of a certain quality so that a person who accesses them knows what they're getting, gets the same thing every time. That's the benefit of legal regulation and that's what's necessary. Will this policy get us any closer to a regulated safe supply?
Speaker: I don't know that it will and I don't think, I think we need to be careful about the metric we use in establishing the success of decriminalization. The primary benefit in my view of decriminalization is reducing harmful police interactions with people who use drugs, chipping away at some of the stigma that people use drugs experience, lowering rates of incarceration.
Speaker: that sort of thing. As far as the safe supply goes, I mean, the only sort of circumstance I could think of would be in chipping away at stigma, you make it possible for people to have conversations with healthcare providers and their families about what they're facing and what they need. And so in that sense, it could lead to people getting proper pain prescriptions from a regulated drug supply through the prescription supply. But I don't
Speaker: necessarily see that as being something that we should be expecting from this policy. Thanks so much for speaking with me today, Caitlin. Thanks so much for having me. I've been speaking with Caitlin Shane, staff lawyer at Pivot Legal Society. Caitlin leads Pivot's drug policy campaign.
Speaker: The Red Eye Collective is based in Vancouver. You can check us out at coopradio .org -slash -redeye.
