Question Period Note: Section 56(1) Requests to Allow for Personal Possession

• In response to the ongoing overdose crisis, the Government of Canada is receiving increasing interest from stakeholders and multiple jurisdictions across Canada to use section 56 of the Controlled Drugs and Substances Act as the fastest mechanism to allow for the possession of small amounts of controlled substances for personal use.

• Two jurisdictions – the Province of British Columbia and the City of Vancouver – have formally requested exemptions from federal drug laws to allow for the personal possession of controlled substances in those jurisdictions. Further requests are expected, including from the City of Toronto by mid-December.

KEY MESSAGES
• Far too many lives have been lost to drug overdoses. The Government of Canada is committed to addressing substance use as a health issue first and foremost.
• We have heard from stakeholders that removing the threat of criminal penalties would reduce stigma around substance use and could help connect people who use drugs to access health and social services. It would be one additional and important tool to help address the worsening overdose crisis.
• Our Government is carefully and thoroughly reviewing requests from British Columbia and Vancouver to allow for the possession of small amounts of drugs for personal use, including evidence of potential benefits and risks to the health and safety of Canadians.
• We will continue to work with other levels of government and stakeholders to help prevent overdoses and better support the needs of people who use drugs during this crisis.
IF PRESSED ON NEW REQUESTS FOR EXEMPTIONS FROM OTHER JURISDICTIONS
• Health Canada will carefully and thoroughly review any request for an exemption to allow for the personal possession of controlled substances on a case-by-case basis, including evidence of potential benefits and risks to the health and safety of Canadians.
• The Department will continue to work with provincial and municipal officials on options that address regional needs and help people who use substances get the support they need.

The Controlled Drugs and Substances Act (CDSA) generally prohibits activities (e.g. possession, production, sale) with controlled substances and precursors (including chemicals used to make illegal drugs), unless those activities have been specifically authorized through regulations or an exemption under the Act. Current criminal penalties for simple possession of some controlled substances can include imprisonment up to seven years and/or fines.

Section 56 of the CDSA allows the Minister of Health to exempt any person or class of persons or any controlled substance or precursor or class thereof from the application of all or any of the provisions of the Act or the 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.

As the overdose crisis continues to worsen, there have been increasing calls from stakeholders, including health professionals, law enforcement and people with lived and living experience, for the removal of criminal penalties for the possession of small amounts of drugs for personal use in order to treat substance use as a health issue, reduce stigma around substance use and help connect people who use drugs with health and social services.

Calls from jurisdictions across Canada to allow for personal possession of controlled substances are increasing. 42 municipalities have passed a resolution that calls on the federal government to declare a national public health emergency and develop a Canada-wide decriminalization plan. Additionally, several municipalities are studying or have advocated for the federal government to decriminalize the possession of drugs for personal use, including Regina, Saskatoon, Montreal and Ontario’s Big City Mayors (mayors from the province’s 29 largest cities).

On May 28, 2021, the City of Vancouver submitted its final application with respect to its request for a section 56 exemption under the CDSA to allow for the personal possession of certain amounts of controlled substances. On November 1, 2021, British Columbia submitted an application with respect to its request for a section 56 exemption under the CDSA to allow for the personal possession of certain controlled substances commonly associated with overdose deaths in the province. Both requests are currently under review. The City of Toronto has indicated that it expects to send a request to Health Canada by mid-December. In September 2021, the City of Toronto concluded a public consultation on the matter. On November 23, 2021, Dr. Eileen de Villa, Toronto’s Medical Officer of Health, published a recommendation that the Toronto Board of Health direct the Medical Officer of Health to submit a request for an exemption under the CDSA to decriminalize the personal possession of illegal drugs in the city by the end of the calendar year. Based on Dr. de Villa’s presentation, an exemption request is expected by Health Canada in mid-December. On December 6, 2021, the Board of Health voted unanimously in support of the recommendation to continue developing the “Toronto Model”. This plan has the support of the Toronto police department. Details of the proposal have not yet been made public. During the December 6 meeting, the Toronto Board of Health also reiterated its call to request the Federal Minister of Health to use their authority under the CDSA to develop a national framework to permit the possession of certain amounts of controlled substances for personal use; and support the immediate scale up of prevention, harm reduction and treatment services.

In addition to requests from jurisdictions to decriminalize simple possession, the Canadian Association of People who Use Drugs (CAPUD) and four individual plaintiffs filed a Notice of Civil Claim on August 31, 2021 in the British Columbia Supreme Court that aims to decriminalize possession of all drugs, as well as drug trafficking activities that are connected to subsistence, supporting personal drug use, or providing a safe supply of drugs to other people who use drugs (“necessity trafficking”). The Government of Canada filed a response called a Response to Civil Claim on November 30, 2021, which will be publicly available as part of the court record. The Response to Civil Claim sets out the facts and basic legal arguments of the Government of Canada’s defence. As the litigation generated some media attention in September, interest in the Government’s response is anticipated.

Under the Canadian Drugs and Substances Strategy, the Government of Canada has taken a number of steps to help create pathways away from the criminal justice system toward appropriate health services and social supports for people who use drugs. This includes:

• In May 2017, the Good Samaritan Drug Overdose Act became law. It provides some legal protection related to personal possession for individuals who seek emergency help during an overdose.

• On August 18, 2020, the Public Prosecution Service of Canada issued public guidance to prosecutors stating that alternatives to prosecution should be considered for personal possession offences, except when there are serious aggravating circumstances.

In February 2021, the Minister of Justice and Attorney General introduced Bill C-22 in Parliament, An Act to amend the Criminal Code and the Controlled Drugs and Substances Act. Amongst other measures, the Bill would have police and prosecutors consider alternative measures – including diverting individuals to addiction programs, giving a warning or taking no further actions – instead of laying charges or prosecuting individuals for simple drug possession. Bill C-22 died on the order paper with the calling of the 2021 federal election. These proposed measures were reintroduced in the House of Commons on December 7, 2021, through Bill C-5.

KEY FACTS
• Health Canada has received requests for an exemption from federal drug laws to allow for the possession of small amounts of controlled substances for personal use from the City of Vancouver (May 28, 2021), and the Province of British Columbia (November 1, 2021). These requests are under review.
• The City of Toronto has indicated an intention to submit an exemption request by mid-December. A number of other municipalities are calling on the Government of Canada to allow for the personal possession of controlled substances at a national level.
• Section 56 of the Controlled Drugs and Substances Act gives the Minister of Health broad powers to exempt people or controlled substances or precursors from the application of any of the provisions of the Controlled Drugs and Substances Act or its regulation for medical or scientific purposes, or if otherwise in the public interest.