How a Canadian Decriminalization Model Can Improve on Portugal

    Isolation, drug-supply disruptions and other effects of the COVID-19 pandemic have sent North America’s already-high overdose rates soaring. Here in Canada, the Liberal government has belatedly taken a significant step in response.

    On August 17, the director of public prosecutions issued new guidelines under which federal prosecutors are to resort to criminal prosecution for possession only in the “most serious” casesthat is, where accompanying circumstances or conduct are deemed to pose a risk to others. It’s a potential, tentative de facto decriminalization. Recommended responses to possession of smaller quantities comprise addiction treatment (including Indigenous cultural or abstinence-based recovery centres), counseling, or restorative justice (including Indigenous restorative justice programs) among others.

    Some media outlets instantly announced that Canada was decriminalizing. Others, including Filter, have been warier.

    Decriminalization has been on the agenda in the United States, too. Decriminalization of possession may now come to pass in Oregon, where Measure 110, replacing arrests with fines and funding treatment, is on the November ballot. That initiative has been heavily backed by the political arm of the Drug Policy Alliance,* which in August released a “model bill” for federal decriminalization. And numerous local jurisdictions have taken steps like curtailing possession arrests during the pandemic, or deprioritizing enforcement of naturally occurring psychedelics.

    Canada looks likely to achieve national decriminalization sooner, however. The August announcement was preceded by numerous encouraging signs.

    By 2018, a majority of residents of Vancouveruntil recently the Canadian city hardest hit by opioid-involved overdose deathssupported dropping criminal penalties for drug possession. And as the toxic drug supply crisis has deepened across the country, long-held prohibitionist attitudes have gradually given way. By February of this year, one poll found some 47 percent of Canadians in favor of decriminalizing possession of small amounts of illegal drugs. Mayors of Toronto, Vancouver and Montreal called for the sameas did major public health figures, often also proposing the further step of legal regulation. By July, even the Canadian Association of Chiefs of Police had followed suit.

    And yet, Canada’s Liberal government, which legalized cannabis in 2018 and which is not philosophically opposed to decriminalization, has consistently refused growing calls to enact it.

    Is there anyone who seriously thinks it is a silver bullet, as opposed to just a positive step?

    On August 21, days after Canada’s prosecution guidelines were announced, Health Minister Patty Hadju, said, true to form, that while officials were (still) deliberating decriminalization, it was “not a silver bullet.” A few days later, Prime Minister Justin Trudeau likewise informed anyone thinking otherwise that “there is not one silver bullet.”

    The trope has previously been deployed by the likes of former Canadian Health Minister Ginette Petitpas-Taylor, former US presidential candidate Beto O’Rourke and former US “Drug Czar” Gil Kerlikowske, among others.

    Is there anyone who seriously thinks it is a silver bullet, as opposed to just a positive step? What they all seem to mean when they parrot this phrase is that they don’t want to dismantle the structures of prohibition.

    Rather, the federal government recognizes that the War on Drugs has been a failure, but whether due to lack of courage or for another reason, chooses to address it in piecemeal fashion: with a single vague instruction to prosecute differently, and by focusing on safe supply. This keeps changes discretionary, based on policy rather than legislation, and avoids fundamental shifts that might conflict with our participation in the US-led War on Drugs and related international treaties.

    By investing in (absolutely vital) safe supply only—essentially an extremely limited, medicalized and discretionary rather than rights-based form of legalization—changes are kept minor and short-term. Safe supply is typically being delivered via initiatives that operate as one pilot project after another, for opioids rather than all illicit substances. These rely on short-term funding and come with restrictive eligibility requirements (although the province of British Columbia has just dramatically eased them).

     

    How Portugal Did It

    Any form of decriminalization must inevitably be compared to the world’s most famous example, established in 2001: Portugal. And Canada’s prosecution-guidelines-and-safe-supply hybrid leaves it a few steps behind Portugal’s model, where possession of a “personal use” amount isn’t subject to criminal charges at all.

    Last year I attended Harm Reduction International (HRI)’s conference in Porto. Along with harm reduction advocates and drug policy experts from around the world, including people who use drugs, I got to hear first-hand from Portuguese drug users and allies, law enforcement officials, medical experts, social service organizations and politicians about the impressive successes of their country’s approach.

    “We went as far as possible within the prohibition paradigm of the United Nations.”

    I also heard about how they negotiated the tension, which Canada is experiencing right now, between the need for decriminalization and international politics.

    “We went as far as possible within the prohibition paradigm of the United Nations,” explained João Goulão, a physician, drug treatment expert and head of the Portuguese Ministry of Health’s Directorate for Intervention on Addictive Behaviours and Dependencies (SICAD). When the government convened a small group of experts, including him, from different fields to come up with a new approach to drug policy, they were instructed that “you must propose whatever you want but you must fit within the spirit of [existing] United Nations treaties.”

    While the 1988 UN Convention against Illicit Traffic in Narcotic Drugs and Psychoactive Substances provides the legal basis for criminalization of personal possession of illicit substances, there is a way out for states that aren’t ready to withdraw from the three UN drug conventions that define our prohibitionist world.

    Article 3(2), which calls for sanctions for personal possession, also says that these may be “subject to [a state’s] constitutional principles and the basic concepts of its legal systems.” In fact, some 25 to 30 nations had, by 2012, implemented some form of decriminalization, according to Harm Reduction International.

    Uruguay never criminalized personal use. Paraguay decriminalized it in 1988 and the Czech Republic did so in 2010. A number of other countries, from Kyrgyzstan to Chile, have made possession an administrative rather than criminal offense. All of these countries are still party to the UN conventions. However, inconsistent application, punitive fines, coercive treatment practices and continued police harassment of drug users means that in practice, criminalization continues to some extent in most of them.

    Goulão warnedand this is what he meant by his own “no silver bullet” statement at the HRI conferencethat to work, even limited decriminalization must sit within a network of services available for people who use drugs, whether they are “problematic or just recreational or light users,” as he put it. Addiction treatment must be available to all who want it. There must be support for marginalized people to reintegrate in society. And “even if someone is still using drugs, he or she still deserves investment of the state in order to have a better life and a longer life.”

    This is where the nascent Canadian model and Portugal’s are in line: Drug users are diverted from criminal justice to a different system, which may carry its own problems.

    Despite many public health wins since its implementation, Portugal’s modelwhich, for example, provides for people who use drugs to be summoned to “dissuasion committees” that can impose fines or restrictions on freedom of movementis far from perfect.

    And this is where the nascent Canadian model and Portugal’s are in linein the sense that drug users are diverted from the criminal justice system, which is a good thing, to a different one, which may carry its own problems. This could be fines, which are still a form of punishment, particularly for those who can least afford to pay and who may be trapped in the criminal-legal system by their failure to do so. It could be community service or restorative justice, which similarly involve a “debt” to be paid to society. It could be treatment for substance use disorderwhich is fine if chosen and evidence-based, but can be positively dangerous if coerced or anti-medication, for example. Even social services or medical care can involve surveillance, punishment and rights violations. As such, they ought to be options, rather than mandates.

    In the Portugal system, people with drugs on their person may still be stopped by police or arrested, and frequent traumatic involvement with law enforcement continues for the most marginalized drug users. People’s drugs may still be confiscated in such a system, even when vital to prevent opioid withdrawal, resulting in petty crime, further arrests and emergency room visits.

     

    Thinking Bigger for a Made-in-Canada Model

    So as Canada and the US take baby steps towards decrim, we shouldn’t be limited to the Portuguese experience or other existing models. What might we accomplish if we instead thought bigger, tried to do Portugal-but-better, and came up with a made-in-Canada version of decriminalization that would offer the society-wide, deep changes that advocates have called for?

    These amount to accessible and equitable health care, social programs, harm reduction, and legislated respect for the human rights and dignity of people who use drugs. All of these are areas where Canada, like other countries, currently falls short. All could become planks of a made-in-Canada decriminalization model.

    “No searches, no harassment, and if a cop finds drugs on you, they give them back.”

    “Decriminalizing’ drug users needs to be more than just not charging people for possession. Real decrim should mean no searches, no harassment, and if a cop finds drugs on you, they give them back,” said Dana Larsen, a Canadian cannabis entrepreneur known more recently for his mail-order drug checking service and other pro-safe supply-of-all-kinds initiatives.

    Jordan Westfall, of the Canadian Association for Safe Supply, sees this summer’s order to federal prosecutors as a good but extremely belated start. But like the activists I met in Porto, he questions the decision to put conditions like forced treatment, different forms of restitution, or fines on the essential question of making drug use no longer a matter for the criminal justice system.

    “I think it should just be decriminalization,” he told Filter. “I think it’s just that you don’t deserve to be criminalized. It’s just that.”

    “There’s sort of a knee-jerk reaction that you’ve got to punish people [for using drugs] because they’re doing something bad,” said Scott Bernstein, director of policy at the Canadian Drug Policy Coalition. I think we need to stop punishing people. Full stop.”

    A woman I spoke with last year for Filter, a healthcare worker and a member of a heroin buyers club who wished to remain anonymous, imagines a world in which the full range of options are available for people who use substances.

    “You have to have the support,” she said, “but you don’t need a medical system.” What she described to me is a form of decriminalization along with legal safe supply that focuses on human rights, autonomy and supportin particular, via a non-professional peer model. In the absence of decriminalization and as part of the heroin buyers club and networks of drug-user advocates, she is pushing ahead with this, what she calls a “like-minded community of support.”

    “Anywhere from sourcing drugs to going into detox. We are there to support each other through these things.”

    This non-commercial, grassroots vision—one that would include sourcing of affordable drugs through community-run cooperatives and similar systemseffectively describes one possible version of legalization.

    By regulating all substances in the interests of public health, you remove the built-in dangers of an illicit market—as well as stigmatizing, prohibition-created conceptions of some drugs (like heroin or crystal meth) as uniquely harmful.

    Decriminalization, alone, while much better than the status quo, leaves the structures and many of the negative impacts of global prohibition in place, and is therefore seen by many advocates as a step on a journey, not the ultimate goal. In particular, when decriminalization is accomplished by discretionary changes in practice, marginalized communities remain subject to brutal, punitive law enforcement.

    As such, legalization, done well, is inherently superior to decriminalization. But legalization done poorly, as we see with cannabis and alcohol, can unleash market forces that endanger public health, drug-market equity, transparency and genuine freedom of choice.

    The model my anonymous source alluded to is completely distinct from Canada’s highly profit-driven legalization of cannabis (which Portuguese officials continue to watch warily as they consider legalization themselves).

    If this vision were to inform a Canadian decriminalization-cum-legalization policy, government’s role would be to fully dismantle the legal barriers that currently prevent people from helping each other understand the risks and benefits of substances. It would provide support for a co-operative model in which drug users and allies could pool resources, knowledge and labor for people safely using, or reducing, or stopping use of drugs.

    “This isn’t an overdose crisis,” said my heroin buyers club correspondent. “It’s a prohibition one. Anything is possible when you provide space for people to talk about [drugs and drug use].”

    A Canadian approach could thus resist excessive commercialization. This would mean preventing heavy marketing (such as straight-up advertising, or targeting of physicians with samples or pseudo-educational materials. It could prevent monopolies or legal cartels (such as the Beer Store’s monopoly on a category of alcohol sales in Ontario), and perhaps not allow public trading of stocks in formerly illicit drugs (as has occurred with cannabis). Such measures could prevent the exclusion of marginalized communities that has occurred with the cannabis industry.

    Their concerns included the pathologization of all drug use, in the rush to move substance use from a criminal justice issue to a health and medical one.

    A Canadian approach could also improve upon Portugal’s by resisting excessive medicalization.

    One day at the Porto conference, I wandered a little early into the historic customs building where it was held. I walked through an imposing door that had been left ajar, and found myself in a members-only side meeting of the International Network of People who Use Drugs (INPUD). Drug-user activists from Portugal, Spain, the United Kingdom, Mozambique, France and Mexico quickly made space for me (not a member) to join their little circle of chairs.

    The concerns these activists raised included the pathologization of all drug use, in the rush to move substance use from a criminal justice issue to a health and medical one.

    In one participant’s words, “often these so-called treatments are tantamount to the most appalling human rights violations.”

    Such violations might include arbitrary detention and forcible confinement, inequitable medical care or access to the same standard of healthcare as everybody else, being subject to medical treatments without consent, forced labor, loss of child custody, or even torture (this INPUD report details a range of human rights violations to which drug users may be subjected, including some that occur under the guise of “treatment”).

    “We’ve passed from prison to hospital,” as an INPUD member from France put it.

    This over-medicalized approach also carries the simple risk of forgetting that the vast majority of humans use psychoactive substances of one kind or another, whether to help us wake or help us sleep, to boost our mood or alter our reality.

    The risk of safe supply in a medicalized model remaininglike medical cannabis in Canada, an onerous and expensive alternative to a still-thriving illicit market is further marginalization of people who injectwho remain reliant on the illicit supply, whether because it’s inaccessible (“can’t get a prescription”) or because it involves intrusive surveillance regimens.

    This has occurred in Portugal, where injection drug use dropped dramatically following decriminalization but where those who do continue to inject have been pushed to the shadows, as Rui Coimbra Morais, president of CASO, Portugal’s drug-user union, repeatedly pointed out during the HRI conference.

    “There are still lots of places where users are living the same war they were living in the ’80s or ’90s,” he said.

    A Canadian approach might go far beyond Portugal by dismantling the sustaining structures of racialized prohibition.

    A Canadian approach could be restorative, with control and resources placed in the hands of those who suffered most under prohibition. This would require dismantling regulations and practices that criminalize Indigenous and Black communities in particular; establishing significant, inequality-reducing reparations for individuals and families harmed by decades of the War on Drugs; supporting community-led, equitable ways of sourcing, checking and providing drugs; and directing taxes collected on the sales of those substances that are legal to priorities set democratically by affected communities.

    A Canadian approach, in shortrecognizing that Portugal’s model is now 20 years old and that thinking has moved forward dramaticallymight go far beyond Portugal by dismantling the sustaining structures of racialized prohibition.

    The architects of this model, unlike those in Portugal, could be allowed to more deeply challenge the spirit of anachronistic treaties—a necessary update when the treaties lead to far greater harms than were known back in 2001, before overdose became the leading cause of death in people under 50 in the United States.

    This, of course, is exactly what Canada’s government seems unwilling to do. And why advocacy—up to and including civil disobedienceis so essential.

    While updating our legal systems to allow for decriminalization, we might begin the process of extracting ourselves from the UN conventions rather than tiptoeing around them, and working with like-minded countries to form a growing blocone where the illicit market is fully undermined and replaced with fair trade and just social policies. That has to be better than forming isolated decriminalization islands where drug use is no longer technically treated as a crime or a pathology.

    If prohibition is the werewolf, that would be the silver bullet.

     


     

    *The Drug Policy Alliance has previously provided a restricted grant to The Influence Foundation, which operates Filter, to support a Drug War Journalism Diversity Fellowship.


    (c) Can Stock Photo / edna

    • Carlyn Zwarenstein

      Carlyn is a freelance journalist based in Toronto. She writes about pain, struggle, injustice, drugs, exile, suffering—and how to make it better. Her work has appeared in publications including the Washington Post, the Guardian, the Globe and Mail and many others. Her memoir, Opium Eater: The New Confessions, was a Globe and Mail Best 100 book of 2016. An expanded version, incorporating journalism about substance use, pain, harm reduction and what people need to be well, will be published in 2021.

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