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Decriminalization: How police drug seizure, even without arrest, can create harms

International Overdose Awareness Day, an annual campaign to end overdose and drug poisonings while also remembering those who have died, is Aug. 31. Events are being held in communities across Canada, a sign of a worsening crisis that has taken more than 36,000 lives since 2016.

The day also represents an opportunity to discuss much-needed policy changes. The decriminalization of people who use drugs has long been one of the proposed solutions, an approach that is currently being piloted in British Columbia.

On Jan. 31, 2023, B.C. began a first-in-Canada pilot “decriminalization” policy, in which criminal sanctions for the possession of small amounts of certain illegal drugs for personal use were removed for adults aged 18 or above.

Seven months into this experiment, the impact of this policy remains unclear. Because a dashboard of policy impact indicator data has not yet been published at the time of writing, it is difficult to weigh the initial effects of the policy.

However, in the city of Vancouver, a policy of depenalization (also referred to as de facto decriminalization) has been in place since 2006, providing an opportunity to understand how the provincial pilot may be working — or even improved.

Depenalization in Vancouver

Seventeen years ago, the Vancouver Police Department (VPD) launched its drug policy to promote the depenalization of simple possession offences. Under this policy, VPD officers were encouraged to not arrest or charge people for simple drug possession for personal use except for certain circumstances.

The VPD’s policy differed from B.C.’s pilot decriminalization in several important ways. For example, the VPD’s policy did not specify the class or threshold quantity of drugs to define simple possession. VPD officers were given broad enforcement discretion with respect to drug possession.

Although publicly available VPD data are limited, available data indeed indicated low and declining numbers of simple possession charges recommended by the VPD to Crown counsel from 2016 to 2019. These numbers have often been cited as the indicator of success of the VPD’s depenalization policy: fewer people are sent to the criminal justice system for the sake of personal drug use.

However, anecdotal reports and previous qualitative research suggested that police officers might not arrest people for simple possession, but they would still seize drugs. Local communities of people who use drugs and public health advocates in Vancouver expressed concern about the harm created by this policing behaviour.

We undertook surveys involving more than 1,800 people who used drugs on a daily basis in Vancouver to investigate this often undocumented discretionary policing practice.

Police drug seizures without arrest

During a 16-month study period in 2019-2021, we found that six per cent of 995 people who used drugs daily in Vancouver (60 per cent residing in the Downtown Eastside neighbourhood that is known for high rates of marginalization and drug use) had had their drugs seized by police without arrest at least once in the past six months. Of those, more than one in four experienced it more than once during the same six-month period.

Of particular concern, 68 per cent of our study participants who had their drugs taken by police without arrest reported having obtained new drugs immediately after the seizure. This portion of the data was collected from the same study population between 2009 and 2012.

Previous qualitative research documented that acquiring drugs this way could put health and safety at risk in multiple ways. For example, it can put people at a higher risk of drug market violence by creating drug debts.

Some users may also be compelled to acquire new drugs in a rush from an unknown supplier, especially when experiencing painful withdrawal. Amid the ongoing drug toxicity crisis, increasing the frequency of buying drugs in the unregulated drug market, especially through an unknown source, increases risk of drug poisoning.

This is contrary to a belief held among some police officers that seizing drugs would prevent harms, including drug poisoning.

The role of police in the toxic drug crisis

A broader question is: Are there any circumstances where police drug seizures are beneficial in preventing drug poisoning? A recent study from the United States highlighted that police efforts to reduce the unregulated drug supply may worsen the drug toxicity crisis by showing a consistent pattern. As police seizures of drugs increased, drug poisoning cases also increased.

Several scholars noted that police drug seizures would not address the toxic drug supply, that the narrow mission of police may exacerbate drug-related harms and that more harm reduction interventions to address the toxic drug supply are needed.

Findings from our study indicate that the VPD’s depenalization policy essentially “mimics the health and safety harms associated with criminalization” and likely undermines overdose prevention efforts.

Under B.C.’s pilot decriminalization policy, police officers can no longer seize drugs from an adult who possesses up to 2.5 grams of certain illegal drugs. However, the threshold quantity of drugs that defined simple possession has been shown to be too low to fulfil the policy objectives. Some people who use drugs, particularly those more marginalized and engaging in high-intensity drug use, may carry more than 2.5 grams of drugs. They may get arrested or experience police drug seizures without arrest.

The annual International Overdose Awareness Day compels us to reckon with ongoing toxic drug deaths and what we can do to reverse this worsening crisis. If decriminalization is going to contribute to positive change, police need to stop seizing drugs from people who use them.

This article is republished from The Conversation, an independent nonprofit news site dedicated to sharing ideas from academic experts. Like this article? Subscribe to our weekly newsletter.

It was written by: Kanna Hayashi, Simon Fraser University.

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Kanna Hayashi holds the St. Paul's Hospital Chair in Substance Use Research and is supported in part by a U.S. National Institute on Drug Abuse (NIDA) grant (U01DA038886) and the St. Paul’s Foundation. For the research work presented here, she received funding through a NIDA grant (U01DA038886), a Michael Smith Health Research BC Scholar Award and the William and Ada Isabelle Steel Fund through Simon Fraser University. She also receives funding from the Canadian Institutes of Health Research and the Social Sciences and Humanities Research Council to support her ongoing research in this area. She is also affiliated with the Vancouver Coastal Health Authority as research staff and the Division of Social Medicine, Department of Medicine, University of British Columbia as an affiliate assistant professor.