Question Period Note: Subsection 56(1) Requests for Personal Possession

• The overdose crisis is one of the most significant public health challenges Canada has faced in decades. This crisis has led to increased calls from various stakeholders, including chiefs of police, medical officers of health, health organizations, and municipalities, to advocate for decriminalizing the personal possession of small amounts of controlled substances as a component of a comprehensive response to this issue. In May 2022, in response to a request of the province of British Columbia (B.C.) and as one part of the province’s comprehensive response to addressing the crisis, the former federal Minister of Mental Health and Addictions and Associate Minister of Health, Dr. Carolyn Bennett, granted a three-year exemption under the Controlled Drugs and Substances Act (CDSA). This exemption ensures that adults 18 years of age and older in the province will not face criminal charges for personal possession of small amounts of certain illegal drugs, with a few exceptions applying to certain locations including schools, child care facilities, and in motor vehicles. This means that between January 31, 2023 and January 31, 2026, adults in B.C. found in possession of up to a cumulative 2.5 grams of certain illegal drugs for personal use, will not be arrested or charged with possession, or have their drugs seized. Instead, individuals will be provided with information on available services and, if requested, support in connecting with services.Based on feedback from key partners, including law enforcement, BC requested to prohibit possession at additional locations: playgrounds, splash pads, wading pools, skateparks. This amendment was granted in September 2023. BC also tabled legislation in October 2023 to regulate the use of drugs listed in the exemption in certain public spaces including those added to the exemption as well as broader locations including parks, beaches, and bus stops. This legislation is currently the subject of a court case in front of the BC Supreme Court.
• On April 26, 2024 the province of British Columbia submitted a second amendment request to expand the exceptions in the exemption to include all public spaces.
• On May 7, the federal government granted BC’s request to prohibit possession of controlled substances in public spaces. Exemptions will continue to apply in private residences, healthcare clinics as designated by the province of BC, places where people are lawfully sheltering, and overdose prevention and drug checking sites.
• A request for the personal possession of small amounts of illegal drugs from Toronto Public Health is under review.

STATUS OF THE AMENDMENT REQUEST
• BC has asked that we make amendments to its project and today we are granting BC’s request to prohibit possession of controlled substances in public spaces.
• Everyone deserves to feel safe in their communities. Law enforcement also needs to have additional tools to address issues of public safety while continuing to take a compassionate and public health approach to addressing substance use harms.
• The Government will continue to support an approach that will help to divert people who use drugs away from the criminal justice system and towards health and social services.
IF PRESSED ON THE EFFECTIVENESS OF AN EXEMPTION LIKE THIS
• This exemption is part of a much broader strategy B.C. and this Government are taking to help save lives, and people who use drugs access supports and services, rather than face criminal charges.
• B.C. is also investing in the rapid scale-up of life-saving initiatives, such as increasing the availability and accessibility of opioid-agonist treatment (OAT), by implementing a provincewide virtual system; supporting existing harm-reduction initiatives; and integrating addictions services with health care, housing and related services.
• This exemption is one tool to help remove barriers to accessing these important services.
IF PRESSED ON DATA MONITORING AND EVALUATION OUTCOMES
• The exemption is subject to monitoring and third-party evaluation to gather evidence and data so that we can be sure the exemption continues to be the right decision for the people of B.C.
• We are looking at a range of indicators related to health, criminal justice, stigma related to substance use, and social/community wellbeing.
• Data was published by B.C. this April through a Snapshot along with quarterly data dashboards, which Health Canada thoroughly reviews.
• We continue to work with the province to analyze the data and evidence, assess impact, and inform implementation, including effective mitigation measures for any unintended consequences.
IF PRESSED ON OPEN DRUG USE
• This government is committed to taking a public health and compassionate approach to people who use drugs, while also making sure people feel safe in their communities.
• We recognize the importance of law enforcement having the tools they need to address issues of public safety, while continuing to take a public health approach to drug use.
• That is why we are reviewing B.C.’s most recent request on a priority basis.
IF PRESSED ON TORONTO PUBLIC HEALTH
• The request from Toronto Public Health was received more than two years ago and remains incomplete as we await information.
• In reviewing any exemption request, Health Canada considers a range of relevant factors, which includes the perspectives of key partners, such as provincial and municipal partners.
• We remain committed to addressing substance use as a health issue first and foremost and will continue working with all partners to find lasting solutions to this terrible crisis.

The Controlled Drugs and Substances Act (CDSA) is one of Canada's federal drug control laws. It provides the legislative framework for the control of drugs (e.g. heroin, fentanyl, cocaine, methamphetamines, etc.) that can result in harm when misused or diverted to an illegal market. Under the Act, activities with controlled substances are generally prohibited, unless specifically authorized through the Act’s regulations or an exemption granted under the Act. Section 4(1) of the CDSA makes it a criminal offence to possess most controlled substances.

Given the urgency of the of the overdose crisis, some stakeholders are seeking an exemption from the CDSA as the fastest mechanism to remove criminal penalties for the personal possession of small amounts of controlled substances, which is intended to reduce stigma and increase the likelihood that individuals will seek help without fear of a criminal penalty.

Subsection 56(1) of the CDSA provides the Minister with the authority to exempt persons or substances from the application of any provision of the CDSA or its regulations, if, in the opinion of the Minister, the exemption is necessary for a medical or scientific purpose or is otherwise in the public interest. Each exemption request received is considered on a case-by-case basis, based on the dual public health and public safety objectives of the CDSA.

Factors considered in assessing requests include:

• Scope of the exemption, including definition of personal possession and possession by minors
• Consultations with key populations, including Indigenous communities, people who use drugs, partners, law enforcement and stakeholders
• Measures to redirect people who use drugs away from the criminal justice system and towards health and social services
• Readiness and capacity of health and social systems
• Public education and communications plan
• Law enforcement readiness, including the development of training and guidelines
• Operational considerations, such as how key risks will be mitigated
• Monitoring and evaluation plan, including a focus on the impact on populations at increased risks of substance use harms

On May 31, 2022, the Federal Minister of Mental Health and Addictions and Associate Minister of Health granted the province of B.C.’s request for a three-year subsection 56(1) exemption under the CDSA, effective from January 31 2023 to January 31 2026. The exemption is being monitored and evaluated closely. While an exemption request was also received from the City of Vancouver in 2021, the request was put on hold following the approval of the B.C.-wide exemption. Health Canada is also in receipt of a similar exemption request from Toronto Public Health, which remains under review.

• Since 2016, more than 42,000 people have died of an overdose in Canada.
• Provincial data indicates that, between January 2016 and June 2023, there were 12,728 unregulated drug deaths in the province of B.C. In 2022, there were 2,383 unregulated drug deaths in B.C, which represents a 34% increase from 2020 (1,775 deaths).
• In B.C., a report that examined illicit drug toxicity deaths in the province from August 2017 to July 2021 found that 52% of people who died were using drugs alone, however, following the introduction of COVID-19 restrictions in April 2020, this percentage increased to 61%
• Indigenous and racialized communities in B.C. have been, and continue to be, disproportionately impacted by the overdose crisis and are overrepresented in the criminal justice system.
• Canada is treating substance use as a health issue, not a criminal one. Stakeholders have reported that stigma and fear of criminalization cause some people to hide their drug use, use alone, or use in other ways that increase risk of harm to the person who is using drugs and their community. Stakeholders have also reported that stigma and fear act as barriers to many in accessing important health and social services, including treatment, and that reducing stigma can help save lives.
• Since B.C.’s CDSA exemption came into effect in January 2023, some B.C. municipalities, law enforcement, and community members have raised concerns that the exemption increases risk of public drug use without providing law enforcement with the necessary tools to manage this risk. Public drug use is a longstanding issue that pre-dates the granting of the exemption.
• To address this concern BC tabled Bill 34, the Restricting Public Consumption of Illegal Substances Act on October 5, 2023. This legislation would prohibit the use of drugs listed in the exemption, in certain locations including within 15 m of spaces designed specifically for children: playgrounds, splash pads, wading pools, and skateparks, as well as broader locations such as sports fields, beaches, parks, and outdoor community recreation areas, as well as within 6 m of certain locations such as: places where the public have access, a workplace, the outside of a residential entrance to which the public has access, and public transit bus stops. A Notice of Civil Claim challenging the constitutionality of the Bill 34 was made on November 9, 2023. BC Supreme Court granted a temporary injunction suspending the coming into force of the Bill.
• While the province was developing this provincial legislation, BC requested an amendment to the exemption to prohibit possession in additional spaces designed specifically for children: playgrounds, splash pads, wading pools, and skateparks. The amendment was granted on September 7, 2023.
• Some stakeholders are criticizing both levels of Government for not acting fast enough to address public use and community safety concerns.
• On April 26, 2024 the province of British Columbia submitted a second amendment request to expand the exceptions in the exemption to include all public spaces.
• On May 7, the federal government granted BC’s request to prohibit possession of controlled substances in public spaces. Exemptions will continue to apply in private residences, healthcare clinics as designated by the province of BC, places where people are lawfully sheltering, and overdose prevention and drug checking sites.