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Experts call B.C.'s new drug policy a 'zombie exemption.' Here's why

"A death sentence for people who use drugs."
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British Columbia will remove criminal penalties for people who possess certain illegal drugs but experts say the exemption won't prevent overdose deaths. 

British Columbia will remove criminal penalties for people who possess a small amount of certain illegal drugs for personal use — but experts say the exemption is largely political and will not solve the central issue: overdose deaths. 

The provincial government announced Tuesday (May 31) that it will grant a three-year exemption under the Controlled Drugs and Substances Act (CDSA) for adults 18 and up who possess 2.5 grams or less of certain illicit substances for personal use. 

B.C. officials underscore that the "exemption is not legalization," but individuals who possess an illicit substance for personal use will not be arrested, charged, or have their drugs seized. 

"Instead, police will offer information on available health and social supports and will help with referrals when requested," explains a news release. 

Carolyn Bennett, federal Minister of Mental Health and Addictions and Associate Minister of Health, stated that the exemption will "reduce stigma and harm" associated with substance use and provide a way for the province to "end the overdose crisis."

Sheila Malcolmson, B.C.’s Minister of Mental Health and Addictions, echoed this sentiment, remarking that "substance use is a public health issue, not a criminal one.' 

But drug policy advocates say there are several issues with the provincial government's exemption. 

"The thresholds are set too low."

Many so-called "low-level" drug dealers possess amounts exceeding 2.5 grams of illicit substances but are not moving large quantities across international or even provincial borders. Jordan Westfall, a co-founder of the Canadian Association for Safe Supply, told Vancouver Is Awesome that these individuals could be charged under the exemption, despite the fact that they aren't profiting off the drugs they sell.

"Somebody selling to survive on the streets is a lot different than trafficking in kilos of cocaine," he explained. "But if someone is a low-level dealer, they might be considered a trafficker even though they might just be closer to a person on the street or just someone trying to survive." 

Westfall, who used opioids for part of his life, says people from all walks of life die from overdosing on illicit substances. "There's no accountability when you're buying off the dark web...we need to work on the supply side issue," he underscores, noting that recent government announcements, such as the legalization of diacetylmorphine, have not provided safe drugs to people who need them. 

Benjamin Perrin, a professor at the University of British Columbia Peter A. Allard School of Law, has written a book entitled Overdose: Heartbreak and Hope in Canada's Opioid Crisis, which was released in January. He underscored that it is vital that policymakers consult people who use drugs when implementing changes, such as the latest exemption. 

People who use drugs report that 2.5 grams is often not enough for personal use or is used too quickly. "And so the drugs' thresholds are too low," he explains.

"The main risk of this, of course, is that it's going to encourage more potent drugs. So if you're only allowed to have 2.5 grams, which is what the exemption says, but people who use drugs are telling us that more is typically what people would use, then that creates a real incentive for a drug dealer to make their drugs more potent." 

A more potent supply increases the risk of overdose deaths, notes Perrin, who adds that Bennett did not provide a scientific reason for the drug threshold when she was asked about it in Tuesday's press conference. 

People of all ages use drugs...and in all provinces 

Another central issue with the exemption is the age limit. Only adults over 18 will not be charged for possessing illicit substances. "So if you're under 18, you're still a criminal," explains Perrin, who notes that most people who have long-term substance use disorders begin using drugs at early ages. 

"In my study right now I regularly hear people who began using substances [at] 11,12, [and] 13 years of age, that's very common. The earliest I've heard someone beginning to regularly use a substance was alcohol — someone who was five years old. These are in response to childhood trauma."

The current exemption only applies to people who reside in B.C., which means that adults who possess illicit substances in other provinces will continue to be arrested and charged. For Perrin, this "piecemeal approach" is "completely absurd" given that Health Canada has recognized the public health crisis. 

"There's no other area of criminal law where we have a pick and choose buffet option for the things that are illegal or illegal," he said. "It's all about politics."

Both Perrin and Westfall stressed that the exemption's expiration date also puts people who use drugs at risk of being prosecuted in the future. By 2026, B.C. could have a government that does not support the exemption and might not renew it. This disproportionately affects Indigenous people, people of colour, people who are poor, and people who are experiencing homelessness. 

And since it can come back, Perrin doesn't consider it a real exemption. Instead, he characterizes it as a "zombie exemption." 

"A death sentence for people who use drugs."

Eris Nyx, co-founder of the Drug User Liberation Front (DULF), tells Vancouver Is Awesome that "decriminalization without a regulated, and demedicalized, accessible supply of drugs is nothing but a death sentence for people who use drugs."

In response to the announcement, she provided the following statement from their organization:

"To this end, what difference does it make to your average user if they can possess drugs, when those very same drugs will be fatal if taken? How does shifting the focus of policing from drug users to traffickers stop death, especially knowing that market destabilization through policing the existing market causes further harm?

"The sheer ignorance of the Canadian government to our voices in regard to threshold limits, directly exhibits the fact that the federal government continues to ignore people with lived experience's voices, and eschews engaging us in a real or substantial way. We need a regulated and low barrier supply of drugs immediately, or more people will die. The use of drugs is not a criminal issue, nor should it be a medical issue, it is a social issue. To this end, the government has failed the Canadian polis, and continues to fail [to approach] the problem in a way that will make a substantive change."

Overdose deaths in B.C. increased by over 25 per cent from 2020, with 1765 deaths in 2020 and 2224 overdose deaths in 2021.

Perrin stressed that people should consider the reasons why people use drugs and that many of them use substances to cope and survive, stressing the importance of compassion and understanding.

"People have overcome and got healing from quite horrific, traumatic experiences," he said.

"But that's not the story with everyone."