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Explaining the case for decriminalizing drugs

Examining the shortfalls of — and ways beyond — our current systems
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KRISTAL MENGUC/THE VARSITY
KRISTAL MENGUC/THE VARSITY

As COVID-19 continues to rage across Canada and the world, experts have started to examine the consequences of this pandemic beyond the acute effects of hospitalizations and economic turmoil. Among these issues is the rise in illicit drug toxicity deaths, including overdoses related to opioids and other street drugs.

According to pre-pandemic federal data, there have been “over 9,000 apparent opioid-related deaths” nationwide since 2016. In 2017, an average of 11 overdose deaths occurred every day. Many of these deaths can be attributed to fentanyl, a powerful narcotic that is often found mixed in with other substances.

This trend continues at a provincial level. According to provincial data, from 2011–2013 there was a fentanyl-related death in Ontario every three or four days. From 2011–2014, opioid-related deaths in Alberta increased almost 20 times, and from 2012–2014 they grew seven times in British Columbia.

Drug decriminalization is often proposed as a solution to the Canadian opioid crisis. Decriminalization usually refers to allowing people to legally possess small amounts of drugs. It is sometimes called ‘personal possession.’ The US state of Oregon recently passed a decriminalization law, which allows for legal possession of less than two grams of cocaine, 40 pills of oxycodone, and similarly small amounts of other drugs. 

Earlier this year, the Canadian Association of Chiefs of Police called for abandoning drug arrests, describing them as “ineffective.” Shortly afterward, the federal prosecution service released new guidelines that advise prosecutors to avoid using the criminal justice system for simple possession charges that don’t raise public safety concerns.

Despite these shows of support, the actual public opinion on decriminalization is decidedly negative. In January, a poll from Ipsos found that 53 per cent of surveyed Canadians do not support decriminalizing small amounts of drugs. When asked whether they supported decriminalizing drugs in general, opposition rose to 64 per cent. 

However, this means that, depending on the circumstances, 36–47 per cent of participants are in favour of decriminalization. So what exactly motivates proponents of drug decriminalization? And what kinds of evidence do they put forward?

The Canadian opioid crisis in numbers 

COVID-19 seems to have made the opioid crisis in Canada even worse.

Data released by the Ontario Drug Policy Research Network shows a 38 per cent increase in the number of opioid-related deaths when comparing the first 15 weeks of the pandemic to the previous 15 weeks. The report proposes that this increase may have been caused by a lack of access to safe places to use drugs and support networks.

In Alberta, the number of fentanyl-related deaths more than doubled from the first quarter of 2020 to the second, rising from 130 to 284, according to a report published by Alberta Health. In British Columbia, the first wave of the pandemic coincided with the largest number of overdose deaths in a given month since the province declared the crisis a public health emergency in 2016. 

Yet, with the crisis at a boiling point, some experts are still divided on how to best tackle the issue.

What motivates drug decriminalization?

Drug policy has generally followed prohibition over its opposing model of harm reduction.

Prohibition-based policy regards drug use as an individual’s moral failing and something to be punished through the legal system. In this framework, punitive actions are meant to deter individuals from ever using drugs in the first place. Resources are spent on law enforcement and incarceration. 

Conversely, the harm reduction model views drug use as a health issue for which the negative consequences must be alleviated as much as possible. Accepting that some drug use is inevitable allows for pragmatic solutions without moralistic judgment, freeing up resources to be used on health, education, and societal development. 

One supporter of the harm reduction model is Mark Haden, an adjunct professor at the University of British Columbia’s School of Population and Public Health, who specializes in epidemiology, biostatistics, and public health practice. “As we look at countries that are moving away from a prohibitionist model, what we generally see is things go well, consistently,” he said in an interview with CBC Radio’s The Current.

“What we see generally in countries that move away from a drug prohibitionist model is HIV goes down, [hepatitis] C goes down, overdose death rates go down, and people generally do better.”

Contrasting views

Others say that prohibitionist policy toward drug use worsens the problem, including Akwasi Owusu-Bempah, an assistant professor in the Department of Sociology at U of T and an affiliate scientist at the Centre for Addiction and Mental Health. “If the rationale for the war on drugs is to decrease drug use, it hasn’t worked,” wrote Owusu-Bempah in an opinion piece for University of Toronto Magazine on legalization. 

“Quite the opposite: there are billions of dollars to be made from the illegal drug trade… The United States, in particular, has been waging a war on drugs for several decades, and it’s still one of the world’s largest consumers of cocaine. This should tell us that we’re not going to reduce drug use through the enforcement of laws.”

It is also impossible to ignore the harms that prohibitionist policy has on racialized people. “The data show that positive police discretion has not been exercised when it comes to racialized people,” Owusu-Bempah wrote. 

“The difference is in who gets stopped and searched, who’s found in possession and who ends up being arrested and convicted.” On these points, stepping away from punitive policy would be a big step toward more equitable treatment in the criminal justice system.

Not all agree, however. Robert Mann, an associate professor at U of T’s Dalla Lana School of Public Health, believes the push toward decriminalization comes too soon after the legalization of cannabis in Canada. In another University of Toronto Magazine article, also on the topic of legalization, he wrote that time needs to be given to properly study the effects of legalization on public health. The implementation, he believes, would be problematic as well.

“Legalization creates additional headaches,” Mann wrote. “I’d be concerned about the possibility of governments adopting a free market approach where the focus is on sales and profits, as opposed to health and public health, and advertising and promotion are permitted – or use can be encouraged in other, more subtle, ways.”

The Portugal case

Portugal is often cited as one of the best sources of evidence for what decriminalizing drugs actually does.

In 2001, the Portuguese government decided to strike down all criminal penalties for the possession of cannabis, cocaine, methamphetamines, and other drugs. People with a substance use disorder were offered public health services instead. 

While possession was not legalized, decriminalization meant that charges of drug possession would be treated with services, not criminal charges. Rather than jail time, those found guilty of possession would receive treatment from a psychologist, social worker, and legal adviser. 

A report published by the Cato Institute examines the rates of drug use and overdose in the years following the 2001 overturn. Deaths from opiate overdose decreased significantly after 2001. The number of newly diagnosed HIV and AIDS cases among users showed a similar downward trend not seen among non-users, indicating a decrease in the contraction of HIV from shared drug paraphernalia.

In terms of rates of usage, however, results are less clear. Among youth aged 13–18, drug usage declined in the years following decriminalization. Some older counterparts showed a less clear pattern, however, with rates of usage increasing mildly post-decriminalization. 

The number of administrative proceedings — non-criminal in nature — increased significantly as well. However, these proceedings are designed to encourage users to seek treatment rather than punish them, which may have resulted in a decrease in future substance use.

A health care perspective

The Portugal case suggests that a health care perspective of substance use disorders is not only more effective in reducing substance use, but also in helping users.

Even then, commentators like Mann are concerned about the legalized sale of drugs. However, decriminalizing drugs does not necessitate their legalized sale. 

A 2018 report from the Candian Centre on Substance Use and Addiction described decriminalization as distinct from legalization, by which governments can regulate and tax the sale of drugs like alcohol or tobacco. 

The report also stated that one policy change or act will not be effective since substance use disorders have complex causes.

Yet, the report concluded with a strong recommendation to reframe the drug debate. “Recognizing that substance use is a health rather than a criminal justice issue is a fundamental starting point for reform.”