Victory over the drug crisis will not come through decriminalization alone

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Chuka Ejeckam is a labour and policy researcher in British Columbia. His work focuses on drug policy and political and economic inequality.

Since 2016, more than 17,000 people across Canada have died due to the toxic drug supply, with those numbers spiking after the onset of the pandemic. But amid this continuing overdose crisis, a push to decriminalize drugs is gaining support.

On Nov. 25, Vancouver City Council unanimously voted to seek an exemption from the Controlled Drugs and Substances Act, which would permit the city – in which more than 300 people died from toxic drugs last year – to decriminalize the possession of small amounts of prohibited substances.

Lately, even committed prohibitionists have expressed support for some decriminalization measures; last July, the Canadian Association of Chiefs of Police (CACP) released a statement, backed by B.C. Premier John Horgan, endorsing the decriminalization of personal possession of illicit drugs and recommending that all police forces in Canada do so as well. And while Prime Minister Justin Trudeau has repeatedly dismissed calls for decriminalization – saying he is “not convinced,” and that it is not a “silver bullet” – federal Health Minister Patty Hajdu will reportedly meet with the City of Vancouver to discuss the proposal.

This is all necessary, and if enacted, it will save lives; after decades of activism led by groups such as the Vancouver Area Network of Drug Users, any change in policy that better serves the health, safety and agency of people who use drugs is positive. But these proposals are also inherently half-measures. In the long term, improving drug policy requires changing the way we think about substances frequently referred to as “hard drugs” – an unnecessary and stigmatizing classification.

The CACP statement makes clear that while the organization supports decriminalization of simple drug possession, it still supports enforcing prohibition: “Law enforcement continues to be required to stop those putting poisoned and illegal substances on our streets,” it declared. This is a familiar rhetorical manoeuvre for those seeking to create explicit space between their position and calls for full legalization. The CACP statement uses villainizing language, and in doing so exposes a troublingly myopic view of how and why various people become involved in producing or selling drugs – a view that impedes efforts to end drug prohibition.

At the heart of the CACP’s decriminalization proposal is a necessary presumption: If a person has more than a set quantity of drugs in their possession, those drugs cannot possibly be for personal use and must therefore be intended for distribution. It’s clear that the proposal relies on this presumption due to the policy’s specific intent of not criminalizing possession for personal use.

For instance, the law could decree that you can possess up to seven grams of cocaine without committing a crime, but at 7.5 grams, the possession becomes criminal. Consider the argument that the limit was set at seven grams because possessing 7.5 grams of cocaine necessarily indicates harmful use. This argument would assert that the purpose of the limit is to identify people who are in need of help, so that help can be provided. However, the proposal specifically criminalizes possession past the limit. So, if the limit were intended to protect those experiencing harm, the policy as presented would criminalize the people experiencing the most harm. This, of course, would negate the policy’s specific intent. Thus, the only way for quantity-limit drug decriminalization proposals to avoid contradicting themselves is by basing the limits on the presumption of intent to distribute.

Given that this presumption is fundamental to the proposed policy, it is worth critiquing its foundations. After all, there is no limit to the amount of alcohol someone can privately possess, despite the fact it is illegal to produce and sell alcohol without a licence. Retailers even sell single-dose, single-use containers that are perfect for resale. This reveals the possibility – and, indeed, the existing practice – of permitting the safe production, sale and consumption of a substance while quelling its unsafe production, sale and consumption. So what explains this difference?

Some would argue that the presumption of intention to distribute the substance is warranted, given the potential for profit. This argument fails quickly. Not only does it baselessly and categorically pathologize countless people – casting them all as callous profiteers – it also relies upon the existence of a market that is itself empowered by the strictures of drug prohibition.

Others would assert that these substances are inherently dangerous and in fact should be prohibited, so the presumption of intent to distribute is warranted. But this argument is significantly contested – if not disproven – by case studies of 20th-century alcohol prohibition and the decades of research on what activist Richard Cowan called the “iron law of prohibition,” all of which make clear that harsh enforcement only increases the potency of available drugs while precluding access to a guaranteed non-toxic supply.

Further, the argument ignores the harms experienced by millions of people around the world as a direct result of drug prohibition and enforcement, including grievous injury, displacement or death as a result of militarized anti-drug campaigns, ecological destruction, state-sanctioned execution, incarceration and overdoses. This argument, too, winds up becoming circular, in that it eventually cites the consequences of drug prohibition to justify more drug prohibition. In effect, the CACP’s decriminalization proposal maintains the core policy principle of drug prohibition: creating a rationale for criminalizing the people it targets.

Any policy change that better serves the health and agency of people who use drugs is to be applauded. But until we change how we think about drugs – and, consequently, how we think about their use – we’ll never arrive at the right policy.

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